Fargo v. Morgan

• Decision Date: 16 April 1926
• Docket Number: 5648
• Citation: 50 S.D. 94,208 N.W. 575
• Parties: A. J. FARGO, Plaintiff and appellant, v. M. N. MORGAN, Defendant and respondent.
• Court: South Dakota Supreme Court

50 S.D. 94

208 N.W. 575

A. J. FARGO, Plaintiff and appellant, v. M. N. MORGAN,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Clay County, SD

Hon. R. B. Tripp, Judge

#5648--Affirmed

Orvis & French, Yankton, SD

Attorneys for Appellant.

Williamson, Williamson & Smith, Aberdeen, SD

Attorneys for Respondent.

Opinion filed April 16, 1926

MISER, Circuit Judge.

The issue in this case is the right of a charge of venue in an action brought in Clay county by a resident of that county against a resident of Brown county. The defendant shipped from Brown county to Gayville, Yankton county, a carload of stock hogs. Plaintiff, desiring to purchase stock hogs, had negotiations in Gayville with defendant with reference to the purchase of part of the hogs.

The complaint alleges that defendant, in order to induce plaintiff to purchase, warranted and stated that the hogs were not sick and made other representations, in reliance upon which plaintiff purchased part of the hogs. The hogs in fact were infected with cholera and began to die with that disease the second day after their purchase. Plaintiff immediately after buying said hogs removed them to his farm in Clay county, where he had other hogs, which became infected with the disease from the hogs so purchased. Plaintiff asked damages in the sum of $1,550.26, of which $475.70 was damages through the loss of the hogs so purchased, $319.56 of which was for money lost in having said hogs vaccinated in an effort to save the same, and $1,035 was for the loss of hogs on plaintiff's Clay county farm through cholera communicated to them from the hogs so purchased from defendant.

After the service of a complaint upon the defendant containing the allegations as aforesaid, upon motion duly made for change of venue, an order was made changing the place of trial from Clay county to Brown county. It is from this order changing place of trial that the appeal is taken, plaintiff contending that this is an action in part at least for the recovery of damages for injury to property, and that consequently under section 2327, R. C. 1919, it might be brought and tried in Clay county, where the injuries, so far as the hogs already owned were concerned, were inflicted. Defendant and respondent contend, however, that a reading of plaintiff's complaint discloses that the wrong or cause of action alleged is a deceit under section 796 of the Revised Code of 1919, and that though, as an element of special damages, plaintiff alleges damages to property, the cause of action still remains one wherein plaintiff seeks damage for deceit. Jetome v. Rust, 122 N.W. 344.

Under the construction which this court has heretofore given to section 2327, supra, in Kayser v. Nelson, 184 N.W. 361, we are of the opinion that respondent is right. In the light of this case, the pertinent part of section 2327 would read thus:

"In all other cases the action shall be tried in the county in which the defendant shall reside at the commencement of the action, except that actions for the recovery of damages for injury to property, may at the option of the plaintiff be brought and) tried in the county where the injuries were inflicted or...