Rudd v. Dewey

• Decision Date: 21 October 1903
• Parties: WILLIAM RUDD v. MORRIS M. DEWEY, Appellant
• Court: Iowa Supreme Court

96 N.W. 973

121 Iowa 454

WILLIAM RUDD v. MORRIS M. DEWEY, Appellant

Supreme Court of Iowa, Des Moines

October 21, 1903

Appeal from Crawford District Court.--HON. Z. A. CHURCH, Judge.

ACTION for alienation of affections of plaintiff's wife. Verdict for plaintiff for $ 1,200 damages. From judgment thereon defendant appeals.

Reversed.

Conner & Lally for appellant.

Salinger & Korte and Shaw, Sims & Kuehnle for appellee.

OPINION

MCCLAIN, J.

By the answer of defendant two issues were raised which are material for consideration: First, that resulting from the general denial of each and every allegation of plaintiff's petition; and, second, that arising from the allegation that "whatever relations he [defendant] had with plaintiff's wife were with the knowledge, acquiescence and consent of the plaintiff." Plaintiff moved to strike out the second division of defendant's answer for the reason that the allegations thereof were redundant irrelevant, and constituted no defense, and for the further reason that the same were neither an admission, denial, nor confession and avoidance. When this motion was argued, and again when the evidence was introduced, there was some colloquy between the court and counsel as to whether counsel intended by the second division of the answer to admit the fact of illicit intercourse between defendant and plaintiff's wife. Counsel for defendant insisted consistently throughout that the second division contained a sufficient admission of the fact for the purpose of the pleading, in order to entitle him to introduce evidence of the matter pleaded by way of confession and avoidance, and that at the same time there was no such admission as to relieve the plaintiff from the obligation to prove that fact, in view of the general denial contained in the first division of the answer. The court took the view that the second division of the answer contained an admission of fact of illicit intercourse, and overruled plaintiff's motion to strike out that division. When the court came to instruct the jury, it stated the defenses of defendant as follows: "For answer, defendant says, first, that he denies each and every allegation made by the plaintiff; second, he admits that he had unlawful sexual intercourse with plaintiff's wife, and says that he had such intercourse with the knowledge, acquiescence, and consent of the plaintiff. * * * The burden is on the plaintiff to show a preponderance of the evidence for the truth of the allegations of his petition." And the court gave the following instruction: "As the defendant admits that he had unlawful sexual intercourse with plaintiff's wife, you will treat that fact as proven, and it is unnecessary for the plaintiff to prove that claim in his petition. But before plaintiff can have a verdict, he must prove every claim made in his petition, except that defendant had intercourse with plaintiff's wife, by a preponderance of the testimony. That is, he must so prove that he was damaged as he claims in his petition, and all other allegations of both counts of the same, except the fact of intercourse." By this instruction the jurors were plainly told that the colorable confession made in the second division of the answer for the purpose of supporting an allegation of new matter by way of avoidance obviated the necessity of proving the matter thus colorably confessed, although in another division of the answer all the allegations of plaintiff's petition were denied.

It is evident that this was an erroneous interpretation of the effect of the division of the answer in which the defendant sought to confess and avoid plaintiff's allegations. By the rules of the common-law, the defendant is not allowed in his pleadings to present simultaneously several distinct answers to plaintiff's allegations. There must be but a single issue for determination by the jury. Stephen, Pleading, 131; Perry, Common-Law Pleading, 303. In equity, however, the defendant may interpose as many defenses as he has under the facts of the case, and this is allowed also in pleadings at common law, by virtue of the statute 4 Anne, chapter 16, section 4; and by the reform procedure, as in force in all the states in which the code system prevails, distinct defenses are allowed to be pleaded simultaneously, each being stated in a separate division of the answer, consistent in itself, and sufficient to constitute a defense to the action. Pomeroy, Remedies, sections 715-725; Bliss., Code Plead. section 342; Daniel, Equity Procedure (4th Am. Ed.) 713, 714. As to whether defendant, interposing distinct defenses in separate divisions of his answer, may rely upon defenses inconsistent with each other (that is, of such nature that if one is true the other cannot be true), the authorities in which the code system has been interpreted are in conflict; and it has sometimes been said that inasmuch as the defendant must plead truthfully, he cannot rely at the same time on two or more defenses which are absolutely inconsistent with each other. Derby v. Gallup, 5 Minn. 119 (Gil. 85); Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec. 579. But in many cases the decision of the question has been made to turn, not on the right to plead inconsistent defenses, but on the question whether the distinct defenses pleaded are in fact necessarily inconsistent. Rhine v. Montgomery, 50 Mo. 566; Weston v. Lumley, 33 Ind. 486. Any uncertainty of the law in this respect, however, has been definitely settled in this state by Code, section 3620, which is as follows: "Inconsistent defenses may be stated in the same answer or reply, and when a verification is required, it must be to the effect that the party believes one or the other to be true, but cannot determine which"--and is the same, in substantial effect, as section 2937, of the Revision of 1860, the first provision on the subject in our statutory history. Under our Code it has uniformly been held, in a series of decisions, the first of which was rendered before there was any specific provision on the subject, that defendant might, in different divisions of his answer, plead a general denial and a confession and avoidance, and that the effect of the general denial will not be nullified by the colorable confession necessarily alleged in connection with the avoidance. Grash v. Sater, 6 Iowa 301; Shannon v. Pearson, 10 Iowa 588; Quigley v. Merritt, 11 Iowa 147; Treadway v. Sioux City & St. P. R. Co., 40 Iowa 526; Barr v. Hack, 46 Iowa 308; Heinrichs v. Terrell, 65 Iowa 25, 21 N.W. 171. And on the same reasoning it has been held that the pleading of matter in confession and avoidance in the reply does not waive the general denial, which, by virtue of Code, sections 3576, 3622, 3648, is interposed to all allegations of new matter in the answer by operation of law. Day v. Mill Owners' Mut. Ins. Co., 75 Iowa 694, 38 N.W. 113; Nichols v. Chicago G. W. R. Co., 94 Iowa 202, 62 N.W. 769; Schulte v. Coulthurst, 94 Iowa 418, 62 N.W. 770.

But even in states where inconsistent defenses are not allowed the remedy is by motion to strike or to require an election; and, if the two defenses are allowed to stand, the colorable confession in one division, which is introduced or implied in order to support matter in avoidance, does not waive the general denial pleaded in another. Pomeroy, Remedies, section 724; Siter v. Jewett, 33 Cal. 92. The theory of the courts in some states where there is no specific provision allowing inconsistent defenses, that, as the defendant should allege the truth, he ought not to be allowed to rely upon different states of fact inconsistent with each other, as against plaintiff's claim, is, after...