McLean v. Dickson , 58 Mont. 203 ( 1920 )

MR. JUSTICE HURLY

delivered the opinion of the court.

- Plaintiff, for complaint, alleged that she was in the actual use and occupation of certain rooms located in Chinook, and entitled to certain privileges connected with her tenancy, and that she occupied said rooms as a place of abode and for the carrying on of her means of livelihood as a hairdresser and manicurist; that the defendants, “conspiring together and acting wrongfully and maliciously,” did and committed certain acts, by which they harassed, annoyed and vexed plaintiff in the use and enjoyment of said premises, in that: (a) The defendant Jacob Dickson repeatedly attempted- to force entrance into said premises, and at other times did wrongfully enter therein without her consent; (b) that defendants locked and barred the doors leading out of plaintiff’s premises; deprived her of the use of lighting facilities and of the bath and toilet accessories appurtenant thereto; (c) that defendants maliciously uttered- and caused to be circulated false and defamatory statements concerning plaintiff, and concerning her occupation as aforesaid; (d) did wrongfully and maliciously "urge and solicit persons intending to engage plaintiff’s services as a manicurist and hairdresser not to so engage her, whereby plaintiff suffered loss of business; (e) did falsely charge plaintiff with having committed crimes and thereby, without probable cause, induced poliee officers to seek entrance into said premises in the night-time, and to threaten plaintiff with arrest, by reason of which plaintiff suffered mental distress and suffering; (f) that, in the absence of plaintiff, defendants entered said premises without her consent, and fastened and barred the doors thereof, whereby plaintiff was compelled to seek refuge elsewhere; (g) that defendants wrongfully and maliciously seized and detained wearing apparel and personal belongings of plaintiff and her goods and accessories used in her said occupation, all of the value of approximately $1,500. It is further alleged that by reason of such acts, plaintiff has been damaged in the sum of $5,000. She demanded judgment: First for $5,000; and, second, for punitive -damages in the- sum of $15,000.

All of the foregoing, with the exception of the formal allegation as to plaintiff’s occupancy of the premises, is set forth in one paragraph, as one cause of action.

The defendants served and filed a motion demanding that [1] plaintiff be compelled to “separately state and number the causes of action united in one cause of action,” upon different grounds, asserting in effect that the complaint sets forth causes of action for damages based upon the following: (1) Eviction; (2) unlawful interference with her occupation; (3) acts of defendant James L. Dickson, to which the other defendant was not a party; (4, 5) deprivation of use of bathroom and lights; (6) defamatory statements; (7) defamatory statements derogatory to plaintiff’s business; (8) urging plaintiff’s clients to refrain from dealing with her; (9) entrance of police officers to her apartment; (10) barring doors of the apartment; (11) conversion of her property. This motion was sustained, and, the plaintiff refusing to plead further, judgment of dismissal was entered, from which this appeal was taken.

It is urged by plaintiff that a motion was not defendant’s proper remedy, and that defendants should have demurred, and the decision of this court in Bandmann v. Davis, 23 Mont. 382, 59 Pac. 856, is cited in support of her position. An examination of the opinion in that ease, however, shows that the point raised on this appeal was not under consideration. There the defendant at the trial objected to the introduction of evidence because one of the causes of action arose ex delicto, whereas the other arose ex contractu, and was not separately stated and numbered. The court said: “A motion to exclude evidence, or an objection to receiving it, is not the remedy for the intermingling in one count of several causes of action; nor is there remedy other than demurrer, by which the complaint may be attacked upon the ground that causes of action are improperly united therein.”

It is clear that under the pleadings in the foregoing ease, if the' defendant wished to urge the objection that two separate and distinct causes of action had been united in one complaint, under section 6534, Revised Codes, a demurrer, and not a motion to separately state and number, was the proper remedy.

In Galvin v. O’Gorman, 40 Mont. 391, 106 Pac. 887, where three separate causes of action were stated in one count, and no objection to the form of the complaint was made until plaintiff had rested upon the trial, the court held: “The proper practice in such a case is outlined in 5 Encyclopedia of Pleading and Practice, 336, where it is said: ‘The clear weight of authority, however, is that the proper remedy for a failure to state separately is a motion to make the complaint more definite and certain by separately stating the causes of action.’ This same ruléis stated in Pomeroy’s Code Remedies (4th ed.), section 341 (#section 447), and is approved in City Carpet Beating etc. Works v. Jones, 102 Cal. 506, 36 Pac. 841.”

In Cohen v. Clark, 44 Mont. 151, 119 Pac. 775, a defendant, who had moved to have the plaintiff separately state and number certain alleged causes of action, was held to have waived the right to object upon the appeal that the complaint was indefinite and uncertain, for the reason that objection had not been made upon that ground.

While there is a distinction between a demurrer and a motion, a motion to require causes of action to be separately stated and numbered has many, if not all, of the elements of a special demurrer. It has been held in this jurisdiction to be an abuse of discretion to refuse to allow a plaintiff to reply after the overruling of a motion made by the plaintiff, directed against the answer, the court there holding that a motion for judgment on the pleadings in some respects is merely a demurrer. (Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631.)

A motion, therefore, to require plaintiff to separately state and number her causes of action was a proper method of attacking the complaint. (See, also, Cohen v. Clark, supra.)

It is next contended that because all of the acts of the [2] defendants were in pursuance of a conspiracy against the. plaintiff, but one wrong was committed; hence plaintiff could properly set forth all the allegations of her complaint in one cause of action.

Section 6533 of our statute makes provision for the inclusion in one action of certain causes of action, and then provides: “The causes of action so united must all appear on the face-of the complaint, to belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person.”

In this action plaintiff seeks to recover, among other things, damages for statements in the nature of slander, alleged to have injuriously affected her business and reputation; injury to and conversion of her property, and injury to her person by reason of the entry of her premises by the defendants.

This court, in Cohen v. Clark, supra, said: “Several breaches of a single contract may constitute but one cause of action, and if the several acts pleaded do make up but a single cause of action, one count in the complaint is sufficient to state them. Under equally well-recognized rules of pleading, a plaintiff is prohibited from splitting a single cause of action. * * * But just what constitutes a single cause of action is frequently difficult to determine. At common law the question was easily settled, for the form of the action determined its character. Under the Codes, forms of action are abolished and the facts constituting plaintiff’s complaint must be stated, and the construction put upon a pleading must now determine whether it states one cause of action only or more than one. ‘A cause of action is the right which a party has to institute a judicial proceeding,’ * * * and consists of a union of the plaintiff’s primary right and an infringement of it by the defendant. * * * Manifestly, then, if plaintiff pleads several contracts and a breach of each, he states several causes of action; but if he pleads but a single contract and a breach of it in one or more particulars, he states but a single cause of action, and it is immaterial how the complaint is paragraphed.”

The rule as laid down by Mr. Pomeroy in his work on Code Pleading (4th ed.), section 350, is as follows: “If the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably' * * * that the plaintiff has united two or more causes of action, although the remedial rights ¿rising from each, and the corresponding reliefs, may be exactly of the same kind and nature. If two separate and distinct primary rights could be invaded by one and the same wrong, or if the single primary right should be invaded by two distinct and separate legal wrongs, in either case two causes of action would result; a fortiori must this be so when the two primary rights are each broken by a separate and distinct wrong.”

The supreme court of Wisconsin in the case of Herman v. Felthousen, 114 Wis. 423, 90 N. W. 432, said: “The test to be applied in order to determine whether a complaint states more than one cause of action is whether, looking at the whole pleading, there is more than one primary right presented thereby for vindication. There may be many minor subjects, and facts may be stated constituting independent grounds for relief, either as between the plaintiff and all the defendants, or the former and one of the latter, or between defendants, and there be still but a single primary purpose of the suit, with which all the other matters are so connected as to be reasonably considered germane thereto—parts of one entire subject, presenting to the 'court but one primary ground for invoking its jurisdiction. That was the rule before the Code, and it was preserved thereby in unmistakable language, as this court has said on many occasions.” (See Level Land Co. v. Sivyer, 112 Wis. 442, 88 N. W. 317.)

And in Adkins v. Loucke, 107 Wis. 587, 83 N. W. 934, the court said: “The infallible test by which to determine whether a complaint states more than one cause of action -is, Does it present more than one subject of action or primary right for adjudication? * # * If it stand that test, no matter how many incidental matters may be connected with the primary right, rendering other parties than the main defendant proper or necessary to the litigation for a complete settlement of the controversy as to plaintiff, or for the due protection of their rights as against him or between themselves, there is yet bnt one cause of action, and a. demurrer upon the ground of the improper joinder of causes of action will not lie.”

Manifestly, in this case, the plaintiff alleges the invasion of more than one primary right. She asserts claims upon any one of which, under proper- pleadings, she would be able to maintain her suit. Had she brought separate actions for the injury or conversion of her personal property, for the alleged defamatory words, or the invasion of her premises, her pleadings could not be successfully attacked because she had “split” the cause of action. Each cause, if proven, would establish the invasion of a primary right, each independent of the others.

It is apparent that plaintiff has -failed to distinguish between the separate statement and numbering of different causes of action and a demurrer to a complaint because causes of action have been improperly united in the complaint.

The district court was not in error in directing that the plaintiff be required to separately state and number her causes of action. The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Matthews and Cooper concur.