Tanderup v. Hansen

• Decision Date: 03 April 1894
• Citation: Tanderup v. Hansen, 5 S.D. 164, 58 N.W. 578 (S.D. 1894)
• Parties: TANDERUP v. HANSEN.
• Court: South Dakota Supreme Court

5 S.D. 164

58 N.W. 578

TANDERUP

v.HANSEN.

Supreme Court of South Dakota.

April 3, 1894.

Syllabus by the Court.

1. All forms of actions are abolished, and the subtile and refined distinctions in relation to trespass which perplexed the pleader at common law are wholly abrogated. Fictitious averments are contrary to the letter, and especially to the spirit, of the new procedure.

2. Under a statute which provides, in effect, that owners, or persons charged with the keeping, of trespassing animals, shall be liable to pay compensatory damages to the party injured thereby, and that such damages may be recovered in a civil action, before a court having jurisdiction thereof, and that the proceedings shall be in all respects the same as any other civil action, a complaint which states, in ordinary and concise language, the facts constituting a cause of action, is not invalidated because the pleader further states that “plaintiff elects to waive the tort,” and then proceeds to state a cause of action-in the same complaint, for the same injury-upon a fictitious contract for the sale and delivery of the property destroyed, and alleges a promise on the part of the defendant to pay such damages; but such unnecessary allegations may be regarded as mere surplusage, and an objection to the introduction of any evidence under such complaint, for the reason that it fails to state a cause of action, should be overruled.

Kellam, J., concurs in decision for reasons stated in supplemental opinion.

Appeal from circuit court, Turner county; E. G. Smith, Judge.

Action in assumpsit by J. P. N. Tanderup against Hans P. Hansen. Defendant had judgment. Plaintiff appeals. Reversed.

R. B. Tripp, for appellant. French & Orvis, for respondent.

FULLER, J.

This action was originally tried in a justice court upon the following complaint: “That during the times herein stated he was, and now is, the owner and in possession of the N. 1/2 of the S. E. 1/4, and the N. E. 1/4 of the S. W. 1/4, of Sec. 18, T. 96, R. 53; said land being in Turner county, South Dakota. That between the 1st of March and the 20th of April, 1891, the defendant was the owner or in possession of certain cattle, with the care of which he was chargeable. That at divers times between said dates said animals ran upon, and trespassed on, said land, and destroyed a large amount of seed corn, common corn, and fodder thereon, to plaintiff's damage of $30. But plaintiff, further complaining, states that he elects to waive the tort or trespass aforesaid, and, for a second cause of action, states that between the 1st of March and the 20th of April, 1891, at Turner Co., S. D., he sold and delivered to the defendant certain seed corn, common corn, and fodder; that said corn and fodder were reasonably worth $30, which defendant promised to pay; that he has not paid the same, or any part thereof. Wherefore, plaintiff demands judgment for $30 and costs. Chas. H. Goddard, Atty. for Plff.” The answer was a general denial. From an adverse decision in justice court, plaintiff appealed to the circuit court upon questions of both law and fact. After the jury was impaneled in the circuit court, and upon the production of a witness in behalf of plaintiff, counsel for defendant objected to the introduction of any evidence under the complaint, for the reason that the same failed to state a cause of action. This objection was sustained by the court, the action was dismissed, and judgment for costs in favor of the defendant was ordered and adjudged. Plaintiff appeals to this court, and assigns as error the ruling of the trial court on the objection to the introduction of any evidence under the complaint, and the action of the court in rendering judgment in favor of the defendant for costs, and asks that said judgment be reversed.

Had the complaint concisely stated only such facts as would, if proved, entitle plaintiff to recover compensation for the damage caused by defendant's cattle, the pleading would have met the requirements of our statute, regardless of the form and character of the action, as the question of tort was not an element to be considered, either by the court or jury, in fixing defendant's liability. Under section 5569 of the Compiled Laws, which provides, in effect, that owners or persons charged with the keeping of trespassing animals shall be liable to pay compensatory damages to the person whose crop has been injured thereby, and that such damages may be recovered in a civil action before any court having jurisdiction thereof, and that the proceeding shall be in all respects the same as any other civil action, provided the suit is brought within 60 days from the time the property is injured or damaged, allegations in a complaint that waive the tort, and plead an implied contract...