Wrege v. Jones
| Decision Date | 05 July 1904 |
| Citation | 100 N.W. 705,13 N.D. 267 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland county; Cowan, J.
Action by Albert Wrege against John R. Jones. Judgment for plaintiff. Defendant appeals.
Reversed.
Order and judgment vacated, and an order entered granting a new trial.
McCumber Forbes & Jones, for appellant.
One tort may be set up as a counter-claim against another where they both arise out of the same transaction. Pelton v Powell, 71 N.W. 887; Barholt v. Wright, 12 N.E 185; Gutzman v. Clancy, 90 N.W. 1081; Wallace v Homestead Co. et al., 90 N.W. 835; Maxwell on Code Pleadings, chapter 12, p. 544; 22 Am. & Eng. Enc. Law, 359.
The counter-claim arose "out of the transaction set forth in the complaint" and was "connected with the subject of the action;" and plaintiff was insolvent, so the demurrer was improperly sustained. Braithwaite v. Akin, 3 N.D. 365, 56 N.W. 133; Brady v. Brennan, 25 Minn. 210; Lahr v. Kraemer, 97 N.W. 418; Jourdain v. Luchsinger, 97 N.W. 740; Doysher v. Adams, 29 S.W. 348.
If conversation did not as a whole constitute a slander, plaintiff has no cause of action. Kidd v. Ward, 59 N.W. 279.
If words charging one with being a thief or of lack of chastity were not intended by defendant nor understood by the hearers to so impute defendant would not be liable. Egen v. Semrad, 88 N.W. 906; Emmerson v. Miller, 88 N.W. 803; Berry v. Massey, 3 N.E. 942; McCarty v. Barrett, 12 Minn. 398.
In an action for slander in charging plaintiff with stealing a horse, defendant could prove that certain persons had told him that plaintiff had stolen a horse. Hudson v. Dale, 19 Mich. 16. Under the general issue, defendant may show in mitigation of damages that previous to the publication of the slanderous words by himself, similar reports were in circulation and communicated to the defendant. Hewitt v. Pioneer Press Co., 23 Minn. 178; Farr v. Rasco, 9 Mich. 353; Marks v. Baker, 9 N.W. 678; Allen v. Crofoot, 2 Wend. 515; Dell v. McBride, 95 N.W. 717.
It was error not to permit defendant to prove that in a previous conversation between him and the plaintiff on the same day, that plaintiff had slandered defendant by calling him a thief, and otherwise. Warner v. Lockerby, 31 Minn. 421, 18 N.W. 145, 821; Jauch v. Jauch, 50 Ind. 135.
The witness should have been permitted to testify as to the meaning he placed upon the slanderous words. Nedever v. Hall, 7 P. 136.
Defendant may show in mitigation of damages that he was not actuated by any ill will or malice toward the plaintiff and did not intend any injury or damages. Plank v. Grimm, 22 N.W. 470; Kerrains v. People, 60 N.Y. 221; Krippner v. Biebl, 28 Minn. 139, 9 N.W. 671; Williams et al. v. Fuller, 94 N.W. 118.
Intent may be proved like any other fact, and a witness may be asked with what intent he did an act. Seymour v. Wilson, 14 N.Y. 567; Griffin v. Marquardt, 21 N.Y. 121; State v. Crawford, 71 P. 1030. Intention is a question of fact for the jury. St. Martin v. Desnoyer, 1 Minn. 131; Townsend on Slander & Libel, section 91; Marks v. Baker, 9 N.W. 678; see Wilson v. Noonan, 35 Wis. 321; Smith v. Higgins, 82 Mass. 251; Kansas v. Carlisle, 108 F. 344.
When so requested the court should always charge the jury as to the burden of proof. 5 Am. & Eng. Enc. Law, 23; Finley v. Widner, 70 N.W. 433; 1 Jones on Evidence, section 176. Abusive language by plaintiff toward defendant is admissible in mitigation of damages. Warner v. Lockerby, 18 N.W. 145; Jauch v. Jauch, 50 Ind. 135.
D. A. Dwyer and Chas. E. Wolfe, for respondent.
One libel or slander cannot be set off against another. 13 Enc. Pl. & Pr. 89; Townsend on Slander and Libel (3d Ed.) section 362; sections 5274, 5288 and 5289, Rev. Codes; Brathwaite v. Aiken, 3 N.D. 365, 56, N.W. 133; 22 Am. & Eng. Enc. Law, 239, 245, 267; 13 Am. & Eng. Enc. Law, 477; Bishop on Noncontract Law, p. 123, section 292; Allen v. City of Davenport, 87 N.W. 743; Golberg v. Dobbertine, 28 L. R. A. 721.
Five hundred dollars damages are not excessive. McMinemee v. Smith, 93 N.W. 75; Bowe et al. v. Rogers et al., 7 N.W. 547; Stumer v. Pichman, 15 N.E. 757; Upham v. Dickenson, 50 Ill. 97; Miller v. Johnson, 79 Ill. 59; Douglass v. Tousey, 2 Wend. 352.
Where the words are actionable per se, and impute the commission of a crime, the intention with which they were uttered is immaterial. 13 Enc. Pl. & Pr. 256; Hinchman v. Knight, 94 N.W. 1; Whiting v. Carpenter, 93 N.W. 926; Bigelow Odgers on Libel and Slander, Am. Ed. 5; 3 Sutherland on Damages, 650; Hamlin v. Fautl, 95 N.W. 955; Kacker v. Heiney, 87 N.W. 249.
This is an action for slander. The plaintiff recovered a verdict in the sum of $ 500. The defendant has appealed from the order denying his motion for new trial, and also from the judgment.
The complaint alleges that on October 3, 1902, the defendant, in the village of Hankinson, in Richland county, in the presence of divers persons, four of whom are named, falsely and maliciously spoke and published of and concerning the plaintiff the following false, malicious, and defamatory words: The answer interposed by the defendant consisted of (1) a general denial; (2) mitigating circumstances; and (3) a counter-claim. The trial court held upon demurrer that the cause of action set up as a counterclaim did not arise out of the transaction which is the foundation of plaintiff's claim, and was not, therefore, allowable. The case was tried upon the remaining issues, with the result above stated.
The first error assigned is the ruling upon the demurrer. The answer alleged, by way of counterclaim, "that on said October 3, 1902, and at the same time and at the same place and as a part of the same conversation and transaction mentioned and referred to in the complaint, and in the presence of the same persons who are named and mentioned therein, the said plaintiff falsely and maliciously spoke the following false, slanderous, and defamatory words of, about and concerning the plaintiff, to wit: 'Jones, you are a damned robber.'" Damages were prayed for in the sum of $ 3,000. Counsel for defendant urge that "the cause of action set up in the complaint and the cause of action contained in the counterclaim arose out of one and the same transaction," and that for this reason the counterclaim is within section 5274, subd. 1, Rev. Codes 1899, which authorizes one to plead as a counterclaim "a cause of action 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." We cannot agree that the transaction out of which defendant's cause of action arose is the "transaction set forth in the complaint as the foundation of the plaintiff's claim," and are therefore of opinion that the demurrer was properly sustained. The statute just referred to is common to a number of states. Thus far the courts have not arrived at a definition of the term "transaction," as used therein, which is wholly satisfactory. It is quite generally agreed, however, that it is broader in meaning than the word contract," and includes torts; otherwise it would not have been employed. Probably the definition given in Pomeroy on Code Remedies, section 774, is the most accurate and comprehensive, i. e., "that combination of acts and events, circumstances and defaults, which, viewed in one aspect, results in the plaintiff's right of action, and, viewed in another aspect, results in the defendant's right of action." The fact that two transactions originate at the same time and place, and between the same parties, is not the test. The question in such cases is, "Did each cause of action accrue or arise out of the same transaction--the same thing done?" Anderson v. Hill, 53 Barb. 239. It is clear in this case that they did not. The act set forth in the complaint as the foundation of plaintiff's claim, and which gave rise to his cause of action, was the speaking by defendant of the defamatory words charged in the complaint. The act which gave rise to the defendant's cause of action was the speaking by plaintiff of the defamatory words charged in the counterclaim. Each act was complete in itself--a separate tort--and constituted a transaction, within the meaning of the above section. It cannot be said that the utterance of the slanderous words by the defendant resulted in a cause of action in his favor for the plaintiff's tort. The latter arose from a wholly distinct act, namely, plaintiff's utterance of the slanderous words. There was no single transaction, which, "viewed in one aspect," gave plaintiff's right of action, and, in another aspect, defendant's right of action. The transactions were separate. Our conclusion that one slander cannot be set up as a counterclaim against another slander is in harmony with the views of the courts of New York under the same statute (Sheehan v. Pierce, 70 Hun 22, 23 N.Y.S. 1119; Fellerman v. Dolan, 7 Abb. Pr. 395), and, by parity of reasoning, is supported by the following cases: Schnaderbeck v. Worth, 8 Abb. Pr. 37; Barhyte v. Hughes, 33 Barb. 320; Macdougall v. Maguire, 35 Cal. 274, 95 Am. Dec. 98; Anderson v. Hill, 53 Barb. 238; L. S. & M. S. Ry. Co. v. Van Auken, 1 Ind.App. 492, 27 N.E. 119; Terre Haute, etc., Co. v. Pierce, 95 Ind. 496; Keller v. B. F. G. Co., 117 Ind. 556, 19 N.E. 196, 10 Am. St. Rep. 88; Shelly v. Vanarsdoll, 23 Ind. 543; Lovejoy v. Robinson, 8 Ind. 399; Ward v. Blackwood, 48...
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