Abendroth v. Boardley

Lyon, J. This is an action brought to recover damages because of the alleged speaking, by the defendant Mrs. Boardley, of certain defamatory words to, of and concerning the plaintiff Mrs. Abendroth. The complaint commences with averments that at the time of the speaking of the defamatory words therein-after mentioned, the defendants were husband and wife, and that when the action was commenced the plaintiffs were husband and wife. Then follows a statement, in the usual form, of defamatory words which it is alleged were spoken by Mrs. Boardley to Mrs. Abendroth in the presence and hearing of other persons. Then follows the statement of a “ second cause of action,” also in the form usual in such actions, which charges the speaking by Mrs. Boardley to third persons, of certain other defamatory words, of and concerning Mrs. Abendroth. In this second cause of action, or count, there is no averment that the plaintiffs were husband and wife, or that the defendants were husband and wife, when such defamatory words were spoken, or at any other time. To the first count or cause of action the defendants answered, making an issue of fact thereon; and they demurred to the second count, on the ground that it did not state facts sufficient to constitute a cause of action, and for defect of parties plaintiff and defendant. The circuit court sustained such demurrer, and [557] the plaintiffs appeal to this court from the order sustaining the same. The only objection made to the second count is, that it omits to repeat the former averments of the mar-triage relations existing between the respective parties, and therefore fails to show that the two husbands are necessary or proper parties to the action. The following decisions of this court are relied upon as showing that such omission is fatal to the count: Curtis v. Moore, 15 Wis. 134; Catlin v. Pedrick, 17 id. 88; Sabin v. Austin, 19 id. 421. The principle decided in those cases is stated very accurately in a head-note to the first case, as follows: “ One count in a complaint, being insufficient in its allegations as to facts constituting the gravamen of the action, cannot be helped out in that respect by the allegations of another count.” After asserting that principle, however, the chief justice, who delivered the opinion in that case, says: “ But in matters of mere inducement the question is quite different. It is not only allowable, but correct practice requires, to avoid unnecessary repetition of the same matter, that in subsequent counts' reference should be made to the first, where the inducement is the same, in which case it is considered as if it were repeated in each count.” (p. 138.) That this is a correct statement of the law on the subject, I have no doubt. The rule is elementary. Now the averments that the plaintiffs are husband and wife, and that the defendants are husband and wife, are clearly matters of inducement, and are not of the gravamen of the action, and a .repetition of these averments should be avoided. 1 Ch. PI. 413; id. 280. But I do not think that these averments form a part of the first count of the complaint. They precede the statement of any cause of action, and are part of what is known as the commencement of the complaint, which is a portion thereof entirely distinct from the counts or [558] statements of the cause of action. The statements properly contained in such commencement are applicable to all of the counts, and it is not only unnecessary, but would be bad pleading, to repeat them. It is correct practice to state in the “commencement” of a declar-. ation or complaint, the character or right in respect to which the parties to the action have been made such; and this is precisely what has been done in this case. 1 Ch. PI. 280. By the Court.- — The order of the circuit court sustaining the demurrer is reversed, and the cause remanded for further proceedings.