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, Plaintiff and appellant, v. HANSEN, Defendant and respondent.
• Court: South Dakota Supreme Court

5 S.D. 164, 58 N.W. 578 (1894)

TANDERUP,

Plaintiff and appellant,

v.HANSEN,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, S.D.

Hon. E. Smith, Judge

Reversed

B. B. Tripp, Yankton, S.D.

Attorneys for appellant.

French & Orvis, Yankton, S.D.

Attorneys for respondent.

Opinion Filed Apr 3, 1894

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 N½ of the SE ¼ and the NE¼ of the SW ¼, of S½ 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 Plf.”

The answer was a general denial. From an adverse decision in justice court, plaintiff appeals to the circuit court upon questions of both law and fact. After the jury was impaneled in the circuit court, and upon the production 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 action. This objection was sustained by the court, the action 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 requirments 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 Comp. 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 the complaint that waive the tort, and plead an implied contract and fictitious promise to pay such damages, are unnecessary, and may be treated as mere surplussage. Mr. Maxwell, in his recent work on Code Pleading, at page 101, says:

“At common law, if the action was brought in case, the plaintiff alleged the breach of an implied duty. If the action was in assumpsit, he alleged the breach of an implied promise. The same proof would sustain either case. … The nice distinctions of the common law do not prevail under the code. Therefore neither the implied promise nor the implied duty need be alleged. All that is necessary is to state the facts showing a liability of the defendant to the plaintiff, either under an implied duty or a promise, and the pleading will be sufficient.”

At page 325 he says, further:

“The subtle and refined distinctions which exist under the common law, and form so large a portion of the learning pertaining to pleadings in relation to trespass, are wholly abrogated. … In framing the petition, the wrong must be stated according to the facts. Thus if the action is for malicious injury to personal property, the plaintiff should allege that, on a day named, the defendant, maliciously intending to injure the...