Shaeffer v. O.K. Tool Co. Inc.

• Decision Date: 06 January 1930
• Citation: Shaeffer v. O.K. Tool Co. Inc., 148 A. 330, 110 Conn. 528 (Conn. 1930)
• Court: Connecticut Supreme Court
• Parties: SHAEFFER v. O. K. TOOL CO., INC.[*]

148 A. 330

110 Conn. 528

SHAEFFER v. O. K. TOOL CO., INC.^[*]

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from Superior court, Fairfield County; Carl Foster, Judge.

Action by Frederick P. Shaeffer against the O. K. Tool Company Inc., for services rendered, to which was filed a counterclaim for vexatious suit, brought to the superior court, where a motion to strike out the counterclaim was denied, and case was tried to the court on the counterclaim. Judgment for defendant, and plaintiff appeals. Error judgment reversed, and cause remanded, with directions.

This action was brought on the common counts by writ dated July 30, 1927. On October 3, 1927, the plaintiff brought a suit against the defendant in New York state, based upon the same cause of action as set forth in the substituted complaint thereafter filed in this action. On October 28, 1927, before the plaintiff had filed any complaint in substitution for the common counts, the defendant filed an answer and counterclaim, the latter sounding in tort, setting up the bringing of the New York action by the plaintiff, and alleging that it set forth the same cause of action as the plaintiff's cause of action in this suit, that it was brought without any justification whatever, solely to harass the defendant, and that it was a vexatious suit. Thereafter on November 10, 1927, the plaintiff filed his substituted complaint under the common counts, setting forth a cause of action for professional services rendered under an agreement with the defendant, which cause of action was the same as that set forth in the New York action. A motion to strike out the counterclaim was denied by the court (Baldwin, J.), the plaintiff filed a withdrawal of his action, and the parties went to trial on the allegations of the defendant's counterclaim. The court found that the plaintiff did not act in good faith in instituting the action in New York, and that that action was brought with malice and without probable cause. It also found that the New York action had been stayed by the Supreme court of the state of New York, and that such stay had not been vacated. The court reached the conclusions that the judgment of the Supreme court of New York staying the action there pending was final unless vacated by appropriate procedure, that the plaintiff was guilty of instituting a vexatious suit against the defendant in the state of New York, and gave judgment for the defendant to recover of the plaintiff $2,500 under its counterclaim.

allegations of counterclaim in reference to commencement of foreign suit held insufficient to state cause of action for abuse of process.

Robert H. Gould and David W. Price, both of Bridgeport, for appellant.

Joseph G. Shapiro, Harry B. Dinerstein, Harry A. Goldstein, and Charles S. Brody, all of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J. (after stating the facts as above).

The action of the court in denying the plaintiff's motion to strike out the counterclaim is not assigned as error, and that question is not before us. Lest we should seem to approve the procedure followed, we feel constrained to say that the counterclaim, upon which the judgment in this action is based, was not one which could properly be filed, and should have been stricken out on motion. " A defendant, by a counterclaim under the statute, cannot bring in for adjudication any matter that is not so connected with the matter in controversy under the original complaint that its consideration by the court is necessary to a full determination of the rights of the parties as to such matter in controversy, or, if it is of a wholly independent character, is a claim upon the plaintiff by way of set-off." Harral v. Leverty, 50 Conn. 46, 63, 47 Am.Rep. 608. The right of set-off, whether legal or equitable, has always been confined to rights of action arising from contract. In an action ex contractu, therefore, it is not permissible to file a counterclaim sounding in tort, unless the subject-matter of the counterclaim is so connected with the matter in controversy under the original complaint that its consideration is necessary for a full determination of the rights of the parties. Downing v. Wilcox, 84 Conn. 437, 80 A. 288.

The matter in controversy under the original complaint in this action was the alleged contract of employment of the plaintiff by the defendant and the rendering of services thereunder. The subject-matter of the counterclaim is the bringing of a vexatious suit by the plaintiff against the defendant after this action was brought and while it was pending. It has nothing to do with the contract sued upon. The cause of action alleged in the counterclaim arose from facts subsequent to and independent of those on which the plaintiff's cause of action rests. Incidentally there would seem to be a lack of justification, at the time the counterclaim was filed, for the allegation that the New York suit set forth the same cause of action as that set forth in this action, since the substituted complaint had not then been filed, and any cause of action could have been set up which could properly be brought under the common counts. The counterclaim should have been stricken out on motion. No appeal having been taken from the action of the judge who denied the motion to strike out, our consideration is confined to the claimed errors of the court upon the trial.

The appeal may be treated as making three assignments of error in the conclusions of the trial court: First, in holding that the institution of the New York action constituted the bringing of a vexatious suit under the laws of that state; second, in holding that there was not probable cause for the bringing of that action; and, third, in holding that a tort had been committed though the action complained of as vexatious was still pending in the courts of New York. Counsel for the defendant seek to avoid the issues thus raised by the claim that the cause of action upon which it relies is not that of vexatious suit or malicious prosecution, but that of abuse of process, and claim that in such an action it is unnecessary for the plaintiff to allege or prove that the action was brought without probable cause, or that the proceeding complained of has terminated.

The action of malicious prosecution lies where a civil or criminal action has been instituted with malice and without probable cause, and has terminated unsuccessfully. The plaintiff must allege and prove that the original action whether civil or criminal, was instituted without probable cause, with malice, and that it terminated in his favor. Abuse of process is the misuse of process regularly issued to accomplish an unlawful ulterior purpose. The gravamen of the complaint is the use of process for a purpose not justified by law. The distinction between malicious prosecution or vexatious suit and abuse of process, as tort actions, is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process, but in its abuse. The distinction in the elements essential for recovery in each tort is that in the action for abuse of process the plaintiff is not bound to allege or prove the termination of the original proceeding nor, in most jurisdictions, the want of probable cause, while both of those must be proven in an action for malicious prosecution or vexatious suit. While distinctions between these kindred actions have not been observed in all cases, they are generally recognized by text-writers and in the great majority of the cases. 38 Corpus Juris, 384; 1 Ruling Case Law, 101; Burdick on Torts, p. 323; Bigelow on Torts (8th Ed.) 228, 232; Cooley on Torts (3d Ed.) p. 354; Wood v. Graves, 144 Mass. 365, 11 N.E. 567, 59 Am.Rep. 95; Zinn v. Rice, 154 Mass. 1, 27 N.E. 772, 12 L.R.A. 288; White v. Apsley Rubber Co., 181 Mass. 339, 63 N.E. 885; Malone v. Belcher, 216 Mass. 209, 103 N.E. 637, 49...