McCormick v. Schtrenck

• Decision Date: 09 February 1910
• Citation: 130 S.W. 720
• Parties: McCORMICK et ux. v. SCHTRENCK.
• Court: Texas Court of Appeals

130 S.W. 720

McCORMICK et ux. v. SCHTRENCK.

Court of Civil Appeals of Texas.

February 9, 1910.

Rehearing Denied June 29, 1910.

Appeal from District Court, Caldwell County; L. W. Moore, Judge.

Action by W. A. McCormick and wife against John P. Schtrenck. From a judgment for defendant on the original cause of action, plaintiffs appeal. Reversed and remanded.

E. B. Coopwood, for appellants. A. B. Storey, for appellee.

RICE, J.

This suit was brought by McCormick and wife against defendant for the recovery of actual and exemplary damages for an assault alleged to have been committed by defendant upon Mrs. McCormick, resulting in serious injury to her. The defendant, after demurrer and special exceptions, replied by plea of self-defense and by plea in reconvention, to recover against plaintiffs for actual and exemplary damages, occasioned by and arising out of a subsequent assault, alleged to have been committed by plaintiff W. A. McCormick on defendant, resulting in serious bodily injury to him.

By a supplemental petition, appellants demurred generally to the allegations of appellee's plea in reconvention, and specially excepted thereto, because the appellants' suit was for damages for an assault made by appellee upon Rosa McCormick, and the answer shows that the assault there set forth was made by W. A. McCormick, and that Rosa McCormick was in no wise responsible or liable for same, or for damages thereby caused to appellee. The appellants likewise specially denied the allegations of appellee's plea in reconvention, and alleged that if W. A. McCormick did make an assault upon appellee, as therein charged, that the same was made at a different time and place than that made by appellee upon Rosa McCormick, did not grow out of same, was in no wise connected therewith, and was not incident thereto, averring that said assault and damages inflicted, if any, by W. A. McCormick, cannot be pleaded in this suit for any purpose, either as justification, or in mitigation, or as an offset, or in reconvention. The general demurrer and special exceptions so set up in appellants' supplemental petition were overruled, to which ruling they excepted.

Mrs. Rosa McCormick and appellee, Schtrenck, were members of the same church, living near each other in the vicinity of the church in the town of Luling. The former, having occasion to go to the church on December 27, 1907, applied to Mrs. Schtrenck, wife of defendant, for the gate keys, which it seems was kept locked, and which were refused her, whereupon she went to the gate, and broke the lock with a rock, and made an effort to get into the window of the church, when she was seen by defendant, who had just come up. A quarrel arose between them with reference to breaking the lock, which eventuated in an assault by each upon the other, as shown from the evidence, and in which each received serious personal injuries. After they were separated, it seems that W. A. McCormick, husband of Mrs. Rosa McCormick, ascertained what had occurred, and during the afternoon of the same day made an assault upon and seriously injured defendant, Schtrenck, which fact formed the basis of the latter's plea in reconvention. A jury trial resulted in a verdict in favor of defendant against plaintiffs on the original cause of action, and in favor of plaintiffs against defendant's plea in reconvention, and judgment was rendered in accordance with the verdict, from which plaintiffs have appealed, complaining by their first assignment of error that the court erred in not sustaining their exceptions to the defendant's plea in reconvention setting up the subsequent assault by plaintiff W. A. McCormick on appellee in reconvention and set-off, because one tort cannot be set off against another.

We fully agree with appellants' contention that the court erred in not sustaining their exception to defendant's plea in reconvention. The question raised by this exception is not an open one in this state. It has frequently been held that, in an action for damages for tort, the defendant cannot plead in set-off damages resulting from a tort previously committed by the plaintiff. Judge Roberts, in Hart v. Davis, 21 Tex. 411, in discussing a similar question, says: "The question in this case is: Can a tort be set off against a tort, as a libel against an assault and battery with a cowhide? To admit such a plea would establish the rule, in effect, that a trespass might be justified by a previous libel, if the jury should think the injury inflicted by the libel and trespass about equal; or, in other terms, it would permit one who was slandered to obtain his redress by an assault, instead of a suit, provided that he could establish that he had imposed no greater injury on the assaulted than had been done to him by the slander. The common law tolerates no rule which would permit such a retaliation of injuries. Indeed, the simplicity and directness of its remedies disallowed set-offs of any sort. It is consequently to other sources we must look for both the existence and extent of this remedy by set-off. Such a case as this is evidently not included in our statute of `discounts and set-offs.' Hart. Dig. p. 222. Though it has been held that equity will extend the remedy beyond the limits of the statute, still it never has been held, as is believed, to extend to a case of tort like the present." In Shook v. Peters, 59 Tex. 393, the same principle is upheld, citing with...