Ward v. Blackwood

• Decision Date: 26 February 1887
• Parties: WARD <I>v.</I> BLACKWOOD, Adm'r.
• Court: Arkansas Supreme Court

Page 624

3 S.W. 624

WARD

v. BLACKWOOD, Adm'r.

Supreme Court of Arkansas.

February 26, 1887.

Appeal from circuit court, Faulkner county.

R. C. Newton and Geo. W. Caruth, for appellant. W. L. Terry and Blackwood & Williams, for appellee.

BATTLE, J.

This action was brought by Massey, in his life-time, against Ward, for damages caused by an assault and battery committed upon him by Ward on the twenty-fifth of August, 1880. Massey having died since its commencement, it was revived in the name of Blackwood, as his administrator. Ward answered, and alleged that, at the time the assault and battery was committed, he was the lessee and keeper of the Arkansas penitentiary; that on the day of the trespass complained of Massey was one of the prison guards in charge of a large number of convicts, engaged at work at Argenta; that some time in the morning Massey negligently went to sleep, and suffered several of the most desperate convicts to escape; that, in the confusion produced by this escape, he went into the yard where Massey was, and struck him two or three times with a piece of thin scantling; that he was damaged to the extent of $1,500 by reason of the loss of valuable dogs, and of the labor of the escaped convicts, caused by Massey's negligence. He asked for judgment against plaintiff for the amount of his damages.

There was evidence introduced in the trial of the action tending to prove among other things, the following state of facts: On the twenty-fifth of August, 1880, Ward was the lessee and keeper of the Arkansas penitentiary, and Massey was in his employment as a guard over a large number of convicts at work in Ward's brick-yard, opposite the city of Little Rock. Three of these convicts forcibly disarmed Massey while on guard, and made their escape. Ward was not in the brick-yard at the time, but came up soon after, and, seeing Massey standing guard with a piece of plank in his hand, accused him of letting the convicts escape, and Massey replied: "I could not help it. They slipped up behind me, back of the lumber pile." Ward, thereupon abused him, and ordered him out of the yard, and, as he turned to go, struck him violently on the back, and Massey fell; and as he got up Ward threw a piece of brick at him, and as he was going out ordered the convicts present to put him out, and they seized him, and threw him down. The injuries inflicted by Ward were serious and painful. On the other hand, there was evidence introduced tending to prove that there was no lumber, at the time of the escape of the convicts, nearer to the place where Massey at a prior time had been placed as a guard, and where Ward found him soon after the escape, than 75 yards; that Massey, several days after the escape, admitted he was asleep when the convicts disarmed him; that the period of the confinement of the three convicts who escaped extended beyond the year 1883; that Ward's lease expired in 1883; and that the labor of the three convicts was worth $675 a year.

The trial court directed the jury to respond to the following interrogatory: "Do you find from the evidence that the convicts escaped through the negligence of Massey?" The jury returned a verdict in favor of plaintiff for $1,800, and to the interrogatory answered, "No." The defendant filed a motion for a new trial, and, the plaintiff remitting $75, it was overruled, and defendant saved exceptions and appealed.

It is first insisted by appellant that he was entitled to judgment on his counter-claim to the extent of the damages proven; that the jury, in disregard of the law and evidence, refused to so find, and that, as to this issue, the verdict was totally unsupported; and that, therefore, the judgment of the court below should be reversed. If it be true the special finding of the jury was contrary to the evidence, it would be no ground for reversal, unless it was prejudicial to appellant; and it was not prejudicial if he had not the right to plead the damages claimed by him as a counter-claim. Had he this right? Appellee insists he had not.

The Code of Civil Practice of this state provides that a defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off, whether legal or equitable, as he shall have. The counter-claim meant by the Code is defined to be "a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." Mansf. Dig. §§ 5033, 5034. The alleged tort of the defendant which constitutes the foundation of plaintiff's action is the assault and battery committed by appellant, and the foundation of the appellant's counter-claim is the escape of the three convicts through the alleged negligence of Massey. It cannot be said that the escape of the three convicts arose out of the assault and battery committed by Ward. Is it connected with the subject of the action? What is the subject of an action?

Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: "It would, as it seems to me, be correct to say in all cases, legal or equitable, that the subject of the action is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises. Thus the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt and the like, would be the subject of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the subject, and are sometimes spoken of as such, yet this cannot be true in all cases; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy, around which all the other elements are grouped, and to which they are subordinate." Pom. Rem. § 775; Bliss, Code Pl. § 126.

This view of what is the subject of an action appears to have been adopted by this court in White v. Reagan, 32 Ark. 281.

A few cases will serve to illustrate what the subject of an action is.

Glen & Hall Manuf'g Co. v. Hall, 61 N. Y. 226, was an action to restrain the defendant from using an alleged trade-mark, "Number 10," on the ground that it was a part of the plaintiff's trade-mark. The defendant admitted that he used the words "Number 10" in his business, but alleged that it was a part of his own trade-mark, and set up that the plaintiff had fraudulently used the same for the purpose of unfairly securing the defendant's customers, and asked, by way of counter-claim, that the plaintiff might be enjoined from using the words in the course of its business to the defendant's damage. The court said: "There will, then, be two distinct cases provided under subdivision 1: (a) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim; (b) a cause of action connected with the subject of the action. The present case falls under the last of these instances. A subject is that on which any operation, either mental or material, is performed; as, a subject for contemplation or controversy. The subject of an action is either property, as illustrated by a real action, or a violated right. In the present...