Lawer Auto Supply Co. v. Teton Auto Co.

• Citation: 45 Wyo. 119,16 P.2d 38
• Decision Date: 21 November 1932
• Docket Number: 1763
• Parties: LAWER AUTO SUPPLY CO. v. TETON AUTO CO
• Court: United States State Supreme Court of Wyoming

16 P.2d 38

45 Wyo. 119

LAWER AUTO SUPPLY CO. v. TETON AUTO CO

No. 1763

Supreme Court of Wyoming

November 21, 1932

ERROR to District Court, Fremont County; E. H. FOURT, Judge.

Action by Lawer Auto Supply, a corporation, against the Teton Auto Company. A general demurrer to plaintiff's amended petition was sustained and plaintiff brings error.

See also 43 Wyo. 349, 5 P.2d 306.

Proceedings dismissed.

The cause was submitted for the plaintiff in error on the brief of O. N. Gibson and Donald Spiker, of Riverton, Wyoming.

A private corporation is liable for the acts of his agent in instituting a malicious prosecution if done within the scope of his authority. Chicago R. I. & P. Ry. Co. v. Holliday (Okla.) 120 P. 927; Nichelson v. Cameron Lumber Co. (Wash.) 81 P. 1059; Grorud v. Lossl, et al. (Mont.) 136 P. 1069; Hussy v. Norfolk Southern R. R. Co. and King, (N. C.) 2 Am. St. Rep. 312; Carter v. Howe Machine Co., 34 Am. Rep. 311. The elements of malicious prosecution are defined by the following authorities, and the absence of any one is vital to the action. 38 C. J. 386; Lorocque v. Dorsey, 299 F. 556; Staunton v. Goshorn, 94 F. 52; Glenn v. Lawrence, 117 N.E. 757; McIntosh, et al. v. Wales, 21 Wyo. 497; Treloar v. Harris, 117 N.E. 975; Carbondale Inv. Co. v. Burdick, (Kan.) 72 P. 781; Sawyer v. Schicket, (Okla.) 120 P. 581. A demurrer to a complaint containing two counts cannot be sustained if either count is good. 49 C. J. 451, 427, 429, Citizens Tel. Co. v. Ft. Wayne & S. Ry. Co., (Ind.) 100 N.E. 310; Boyle v. Mountford, 39 Wyo. 141, 270 P. 537; Grover Irr. & Land Co. v. Lovella Ditch, Reservoir & Irr. Co., 21 Wyo. 204; Nichols v. Brd. of Commrs. of Weston County, et al., 13 Wyo. 1. A cause of action may be pleaded in different courts in order to meet the exigencies of the cases as presented by the evidence, or where there is a reasonable doubt of his ability to plead safely in one mode only. Where entitled to employ more than one count, the pleader cannot be required to elect between. 1 Bancroft 175; Cinamon v. St. Louis Rubber Co., et al., (Mass.) 118 N.E. 327. Where entitled to employ more than one count, the pleader cannot be required to elect between. Empire Ranch & Cattle Co. v. Howell, (Colo.) 128 P. 474, 20 C. J. 6; Cinamon v. St. Louis Rubber Co., et al., (Mass.) 118 N.E. 327. A separate statement or allegation as to punitive damages will not be held to add a count to the petition. 49 C. J. 164, 38 C. J. 422; Antonelli v. Basile, 93 Mo.App. 138; Johnson v. Bedford, 90 Mo. A. 43. An action for a malicious prosecution may be maintained, although there has been no arrest nor imprisonment, provided the elements of a cause of action are present. 38 C. J. 290; Eastin v. Bank of Stockton, (Cal.) 4 P. 1106; Hamer v. First Nat. Bank of Ogden, (Utah) 33 P. 941; Asevado, et al. v. Orr, et al., 34 P. 779; Hess v. German Baking Co., (Ore.) 60 P. 1011; Carbondale Inv. Co. v. Burdick, (Kan.) 72 P. 781; Abbott v. Thorne, et al., (Wash.) 76 P. 302; Overton v. Sigmon Furniture Mfg. Co., et al., (Okla.) 151 P. 215; Harless, et al. v. Consumer's Gas Trust Co., (Ind.) 43 N.E. 457. An action upon the injunction bond is not exclusive. It does not affect the right to sue at common law for malicious prosecution. 38 C. J. 391; Crow v. Sims, (Ohio) 102 P. 741, 32 C. J. 440; Lawrence v. Hagerman, (Ill.) 8 Am. Rep. 674; Spaids v. Barrett, et al., (Ill.) 11 Am. Rep. 10; Hardin v. Card, 17 Wyo. 210; Rock Springs Coal Co. v. Black Diamond Coal Co., (Wyo.) 272 P. 12, 19, 39 Wyo. 379. In an action on an injunction bond, plaintiff is restricted as to counsel fees and those incurred for a dissolution of the injunction. Housely v. Tobin, 41 Wyo. 419.

The cause was submitted for the defendant in error on the brief of G. H. Paul, of Riverton, Wyoming.

The two alleged causes of action were improperly joined, and the court was right in requiring an election since one was upon contract, and the other an action in tort. 3 Code Pl. 2576; Willey v. Nichols, (Wash.) 52 P. 237; Connell v. Higgins, 170 Cal. 20; Thelan v. Steward, 100 Cal. 372. An exception is made by the statute and both causes of action relate to the same transaction. Sec. 5606 C. S. The first ground of the petition was the only one intended. Wilson v. Board, 167 P. 754. Plaintiff could not recover attorney's fees for services in dissolution of injunction unless the services pertaining thereto might be segregated from other matters. Housely v. Tobin, 41 Wyo. 419. The plaintiff in this case has but one cause of action. Sturgis v. Marshall, et al., 8 O. S. 215. The demurrer was properly sustained. Baxter v. Brown, et al., (Kan.) 111 P. 430.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These proceedings in error were instituted by the Lawer Auto Supply, a Wyoming corporation, to review the action of the District Court of Fremont County in sustaining a general demurrer filed by the Teton Auto Company to the amended petition of the corporation first mentioned. This ruling is the only error relied on by plaintiff in error. That portion of the journal entry showing the action of the court concerning the matter reads as follows:

"THEREUPON, the defendant presented to the Court its demurrer, which is alleged in the cross-petition, that the petition does not state facts sufficient to constitute a cause of action, and after argument of counsel, and the Court being fully advised in the premises, the Court sustained the demurrer, to which the plaintiff duly excepted.

"And it appearing to the Court that no further proceedings are asked by the parties plaintiff and defendant:

"IT IS ORDERED, ADJUDGED, AND DECREED BY THE COURT, That the defendant have judgment for its costs herein, taxed at $ 2.70, to all of which the plaintiff, by its counsel at the time duly excepted."

It has been repeatedly held by this court that an order sustaining a demurrer is not such a judgment or final order as may be reviewed by a writ of error or by appeal. Menardi v. Omalley, 3 Wyo. 327, 23 P. 68; Turner v. Hamilton, 10 Wyo. 177, 67 P. 1117; Greenawalt v. Imp. Co., 16 Wyo. 226, 92 P. 1008; Owen v. S. & E. Ry. Co., 19 Wyo. 409, 118 P. 652; Bock v. Nefsy, 29 Wyo. 33, 207 P. 1008.

In the case of the Chicago Portrait Co. v. The Chicago Crayon Co., 217 Ill. 200, 75 N.E. 473, as stated in the opinion:

"Appellant was plaintiff and appellee was defendant in this suit in the Circuit Court of Cook county. That court sustained the general demurrer of the defendant to the declaration and the plaintiff elected to stand by the declaration. The recital of said facts in the record is followed by this judgment: 'Therefore it is considered by the court that the defendant do have and recover of and from the plaintiff its costs and charges in this behalf expended and have execution therefor.' There was no disposition of the rights of the parties or of the suit, but plaintiff prayed an appeal from said judgment to the Appellate Court for the First District and assigned for error that the court sustained the demurrer and dismissed the suit."

Concerning this situation, holding that the appeal should be dismissed, the Supreme Court of Illinois said:

"The judgment was not final and the statute only authorizes appeals from final judgments. The Circuit Court merely sustained a demurrer to the declaration, and neither adjudged that the plaintiff take nothing by the writ or that the defendant go hence without day, and the judgment contained no words of equivalent meaning. There was no...