Cracraft v. Cochran

Cole, J. Action for slander. The petition states' in substance, that on the 15th day of October, 1862, the defendant spoke of, and concerning the plaintiff, these false and defamatory words, to wit: “ He broke into my store last night; he broke into my store last night, and stole ten dollars. I had shut up my store and had gone down street a piece; I then returned and went into the store, and I found him there; he had broken in the back window, and I missed ten dollars from the drawer. Young Cracraft broke into my store, and I missed ten dollars. Young Cracraft broke into my store last night and stole ten dollars. Young Cracraft broke into my store, and there are ten dollars gone. When I went into the store, he was standing, with the money drawer in his hand, and had taken ten dollars,” &c., &c., all being stated in one count; . The defendant moved that the plaintiff be ordered to elect on which part of the first count he will stand, and that the rest may be stricken out; because said first count is double, and contains more than one cause of action. The Court sustained the motion, and plaintiff excepted and re [303] fused to elect, and thereupon judgment was rendered against him for costs, from which he appeals. The defendant relies upon the following section of the Revision to sustain his motion: “ § 2903. If the matter of the petition, answer or reply, is not put into distinct counts or divisions, and numbered as herein contemplated, or if one such division contains in the petition more than one cause of action, or if one division in the answer contains more than one affirmative defense, or set-off, or counterclaim, or cross-demand, or if one division in the reply contains more than one affirmative defense to any set-off* counterclaim, or cross-demand, the party so neglecting to divide and number, may, on motion, be ordered to divide and number, and the party so pleading double, in the contemplation of this section, may be, on motion, ordered to elect on which part of such double count or division he wi.ll stand; and to strike out the rest.of it, or to re-divide such count or division máde bad by such duplicity.” The appellant claims, that his petition contains but one cause of action, and that the count is not double, for that it contains but one conversation or discourse made at one and the same time and place, and to the same persons. When a pleading comes within the meaning of § 2903; quoted above, the right of election, as to which alternative of the action to be had under said section, belongs to thd party making the pleading, and not to the party assailing it. That is, the pleader has the right to elect on which part of such double count or division he will stand, and to strike out the rest of it, or to re-divide such count or division. But the count below gave to the party assailing the pleading, his election of the alternatives, by sustaining the motion and ordering the plaintiff to stand upon a part and strike out the rest, without permitting him to choose the alternative of re-dividing such count. This was error, Again, the petition avers, that the words were spoken [304] '¡on a-particular day'-named;-and then goes on to detail the words as having been spoken-in the same-connection, and for the-publishing thereof claims damages. It is true that the-words set-out in the petition charge the-plaintiff, in effect, ' with.-two-offenses, one ,of store breaking (Rev. §4235), and the other of larceny (Rev.-§ 4237) ;--but-such charges were, as appears by -the petition) made in the same-, conversation and-at-the same timej-andof course gave but one right of action. - It is -well -said-by-Strong J., in Secor and others v. Sturgis and others, 16 N. Y., 548, that -“ in the case of torts; each trespass,- or conversion, or fraud, gives a right-of action, and iut a single o'?je, however, numerous-the-items of wrong-or damage-may he." - ■ Underthis rule, it matters not -how numerous were the offenses charged in the-same conversation-; they, together, constitute-but one cause of action: A plaintiff could not sue -and recover for one of- the slanderous charges specified, and then bring another action for another of the slanderous Charges made-in the-same conversation ;- for the reason that he has but -one cause of action growing out of the same conversation,'5 although- the- items - of slander' were numerous. • To allow a-' party-'thus to bring- several actions for the same slanderous-course,- would be to sanction the splitting-of actions, which both the common law and the Code prohibits.- - • Each-count, or-division of the petition- should, of itself, contain a complete and distinct cause of action. Rev., §§ 2875) 2934, 2935.' ‘ It follows, therefore,-that the conversar tion-of slandferótis discourse set out in the- petition, being but ione and'the same conversation, • could not properly form', the - basis- of two distinct counts, since -the plaintiff ■has but-'one cause-of action therefor.' The- plaintiff-need hot) necessarily, set out the -whole conversation, or prove all the conversation as set'out1-in his petition; it is sufin cient if he set out or prove- so- much thereof as constitutes [305] tbe charge of one criminal offense; but he may set out and prove the whole, or an actionable part thereof; or the defendant may prove not only that portion of the conversation set out, but he, as well as the plaintiff, may go .further, and prove all- the conversation occurring at the same time, for the purpose of showing the quo animo it was published. 1 Chitt Plead., 405; 1 Starkie on Slander, 874. In our view, the petition contains but one cause of action, and the motion of defendant should have been overruled. The judgment below is, therefore, Reversed.'*’