Paul v. Ford

117 A.D. 151, 102 N.Y.S. 359, 38 N.Y. Civ. Proc. R. 71, 1907 N.Y. App. Div. LEXIS 209

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1907
• Status: Published

Opinion

Ingraham, J.:

The complaint alleges in one paragraph that on the 10th of August, 1906, the defendants, their agents, servants and employees violently assaulted this plaintiff and violently caught and struck her about her arms and body, and did beat,, bruise, wound and ill-treat the plaintiff; and then and there in the presence of divers persons did falsely and maliciously speak and declare of and concerning the plaintiff certain false, scandalous and defamatory words. •

It is further alleged that the statements so made by the defendants were false and untrue, and were made by the defendants maliciously, and that by reason of the aforesaid assault the plaintiff has been made sick, sore, disabled and distressed, and has suffered severe nervous shock, and that by reason of the slanderous words uttered as aforesaid plaintiff has been greatly injured, all to her damage in the sum of $5,000. There is thus alleged, as part of the same cause.of action, an assault upon the plaintiff’s person and the speaking of slanderous and defamatory words which together caused the plaintiff the damage for which she seeks to recover.

There are here two causes of action, one for assault and one for slander, which, under section 484 of the Code of Civil Procedure, could not be united in the same action, and under section 483 of the Code of Civil Procedure such causes of action must be separately stated, The latter section pro^vides that “ where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered.” This motion was, therefore, properly granted, and the question whether or not thesé two causes of action can be united is not presented.

That these causes of action are separate is recognized by section 484 of the Code of Civil Procedure, which provides that “ The plaintiff may unite, in the same complaint, two or more causes of action, * * * where they are brought to recover as foliows : * *• * 2. For personal injuries, except libel, slander, criminal conversation or seduction. 3. For libel or slander.” By subdivision 9 of section 3343 of the Code of Civil Procedure “ a ‘personal injury’ includes libel, slander, criminal conversation, seduction and malicious prosecution ; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another.” An action for assault, therefore, being a personal injury, comes within subdivision 2 of section 484 of the Code of Civil Procedure. An action for slander comes within subdivision 3 of section 484 of the Code of Civil Procedure. Thus causes of action for an assault and for libel or slander are stated as separate causes of action.

In the ease of Anderson v. Hill (53 Barb. 238), where, as here, the plaintiff alleged an assault and the speaking of slanderous words at the same time, there was a demurrer to the complaint, on the ground that causes of action were improperly joined, and the court held that that complaint stated facts constituting a clear cause of action for assault and battery and also a clear cause of action for a-verbal slander, both in a single count, and that two causes of action were alleged and that they were improperly united. The court said-: “ The causes of action are not separately stated, as required by the Code,

* and every other tolerable system or idea of pleading, but both are .intermingled and woven together in a single fabric of manual1 and vocal tort., Causes-of action for words and blows thrown into ‘hotchpot-’ and counted upon in that condition. Nothing is claimed as damages, for the injury arising from the battery as such, and nothing from the injury arising from the slander. Neither cause is claimed to have injured separately, but the injury and consequent damages spring from the union of the two wrongs. Should a verdict be rendered in the plaintiff’s favor, it must necessarily be a single verdict, and it would not appear and no one could ascertain, not even the parties themselves, how much - the plaintiff had been injured in person or how much in character, nór what measure of compensation had been awarded for either injury. Surely justice ought not to be so administered unless the statute imperatively requires it.”

In De Wolfe v. Abraham (151 N. Y. 187) the complaint alleged a cause of action for slander and a cause of action for false imprisonment, the acts of the defendants complained of happening at the same time and being part of a single occurrence. The court held that these two causes of action could not be united in one proceeding. It was said that “ false imprisonment is an injury to the person and is embraced within subdivision 2, while slander is in express "terms excluded therefrom and placed in subdivision 3, * * * It does not follow that two causes of action, originating at the same time, arose as matter of law' out of the same transaction or are proved by the same evidence.” (Citing Anderson v. Hill, 53 Barb. 245, 246.)

In the plaintiff’s cause of action as alleged there were at the same time and as part of the same occurrence two wrongs inflicted upon her which under the Code of Civil Procedure are designated personal injuries, one of which was an assault and the other a slander. It does not necessarily follow, that the claim for damages resulting-from these perspnal injuries arose out of the same transaction so as to bring the case within subdivision 9 of section. 484 of the Code, of Givil Procedure. Although the occurrences happened at the samé time, the . transagtioti which gives a cause of action in the one' case, was physical force used against the person of the plaintiff, while in the other case was words reflecting upon her character constituting what is known as an action for slander, the transaction in the. one case being the assault upon the person and in 'the other the actionable words' spoken.. These two injuries each giving a cause of action,'the transaction giving each cause of action was the wrongful act. of the '■ defendants, but such acts were not the-same transaction. , For each of these, wrongs the law awards the plaintiff .a separate cause of’ action, and as they, are not both included within any one subdivision of section 484 of the Code of Civil Procedure they cannot-be united in one action. . .

It follows that-the order app.ealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed.

SeeCode Proc. § 167, revised jn Code QÍ7. Proc. §§ 483,, 484, -REP.