Where, as here, the petition seeks only injunctive relief against a continuing trespass, and in response thereto the defendant answers, seeking recovery of a sum for breach of a contract, the voluntary dismissal by the plaintiff of his petition carries the answer with it. The petition is based on an action arising ex delicto. The answer seeks recovery on a cause of action arising ex contractu. Such a plea can not be maintained except in equity where it appears from the allegations that the plaintiff is either a non-resident or insolvent.
DECIDED JANUARY 17, 1945.
J. H. Dorsey, hereafter called the plaintiff, brought suit against A. M. Holloway for injunctive relief. It appears from the petition that the plaintiff owned a turpentine farm, in connection with which he had the usual labor quarters and a house in close proximity thereto which the superintendent occupied. Five or six years prior to November 22, 1943, the defendant had been employed by the plaintiff as superintendent. On the date named the relationship of employer and employee was terminated by mutual consent. The plaintiff alleged that the services of the defendant became unsatisfactory. After the termination of the relationship the defendant continued to occupy the superintendent's dwelling, although it was agreed that when the relationship was terminated he was to move off the premises. It is alleged that
thereafter he prepared to enter the pulpwood business — a competitive business with that of the plaintiff as to labor. He did not vacate the house in which he was living and began to induce the plaintiff's laborers to move away, and did actually procure two families to move from the plaintiff's farm with a view of going into the employment of the defendant. The defendant used the superintendent's house as headquarters for recruiting the plaintiff's laborers, and thus created unrest among them. Such conduct had caused and was causing the plaintiff irreparable damage. The defendant was charged with being a trespasser both as to interfering with the plaintiff's labor and occupying the superintendent's house. A rule nisi was issued requiring the defendant to show cause why the prayers of the petition should not be granted, pending which the defendant was restrained from interfering with the plaintiff's labor. At the interlocutory hearing the defendant filed demurrers, both general and special, to the petition. The plaintiff amended his petition to meet the special demurrers, after which the demurrers, both general and special, were overruled. Exceptions pendente lite were filed. In due time the defendant filed his answer, in which he denied the main allegations of the petition, and in addition filed a plea in the nature of a cross-action, the gist of which is as follows: "However, defendant shows that there was no termination of the contract, and that before the contract was terminated plaintiff was obligated to pay to defendant $890 for the automobile furnished by defendant at direction of plaintiff, or in lieu thereof give to defendant a new car, to pay defendant $50 for five set of gear, $50 for two set of gear, $25 for one set of blacksmith tools, $50 for one set of carpenter's tools, $100 for set of mechanical tools, $75 for an 80-rod roll of heavy-gage wire, and was to pay for the horse furnished by defendant, and pay the defendant the market value thereof, the market value of said horse to-day being $200; all other items hereinabove enumerated were under the contract to be paid for by plaintiff to defendant, except the horse, and the horse was to be paid for by plaintiff, and defendant paid the market value therefor. That under said agreement the plaintiff was to pay the defendant for said hereinbefore-enumerated articles at any time upon demand, and defendant now makes demand therefor. And in addition thereto plaintiff is indebted to defendant earned salary to this date in the sum of $68.52, that is up to December
31, 1943, and damages in an amount to be later determined, for breaching said contract."
At the interlocutory hearing the restraining order was continued until the trial term. As to the dwelling house, the defendant was permitted to occupy the same until December 31, 1943. The plaintiff filed a demurrer to that portion of the plea in the nature of a cross-action. The demurrer alleged: "(a) That said alleged items of indebtedness constitute no defense to plaintiff's petition. (b) That said alleged items of indebtedness are not germane to any issues involved in said cause and are not responsive to the allegations of said petition. (c) Under the rules of pleading, such allegations of alleged indebtedness can neither be set up as a counter-claim or as an answer in the nature of a cross-bill." This demurrer was never passed on by the court. Before the case was sounded for trial the plaintiff voluntarily dismissed his petition. At the trial term the defendant insisted upon a trial of his plea in the nature of a cross-action. The trial court denied him a trial on his plea, the court holding that the voluntary dismissal of the petition by the plaintiff had the effect of dismissing the cross-action. The defendant excepted. This is the sole question to be determined by this court.
It will be noted that the plaintiff in his petition asked for no damage. He asked only for a restraining order against a continuing trespass. This is the extent of the plaintiff's suit. The allegations in it as to the former relationship are merely allegations of inducement. The defendant's plea alleged a cause of action arising ex contractu. Our understanding of the law is that a claim arising ex contractu can not be asserted against the opposite party's ex delicto action, and vice versa, except where the opposite party is either a non-resident or insolvent. Standhardt v. Hardin, 145 Ga. 147
(88 S.E. 565). The Code, § 3-113, controls this question. This section reads as follows: "All claims arising ex contractu between the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defense, all claims against the plaintiff of a similar nature with the plaintiff's demand." InRansone v. Christian, 49 Ga. 491, 506, the Supreme
Court said: "It is impossible to escape from the conclusion that by claims of a similar nature with the plaintiff's demand, is meant claims arising ex delicto or ex contractu, accordingly as the demand of the plaintiff is ex contractu or ex delicto." See also Horton v. Pintchunck, 110 Ga. 355 (35 S.E. 663);Georgia Power Company v. Banks, 56 Ga. App. 774
(194 S.E. 63). The general rule is that actions ex contractu can not be joined with actions ex delicto. "It is well settled that damages ex delicto can not be set off against an action ex contractu except in equity cases of insolvency or non-residence. Arnold
v. Carter, 125 Ga. 319, 324 (54 S.E. 177); Strickland v.Bank, 141 Ga. 565 (81 S.E. 886); Potts-Thompson Liquor Co.
v. Capitol City Tobacco Co., 137 Ga. 648 (74 S.E. 279); Civil Code (1910), § 5521." Williamson v. Calhoun, 49 Ga. App. 631
(176 S.E. 653). There are other cases to the same effect. We do not deem it necessary to call attention to other authorities. Anyone interested in pursuing the decisions further may do so by referring to the annotations in Ga. Code Ann., under § 3-113. The court did not err in the judgment to the effect that when the plaintiff dismissed his petition this carried the plea and answer with it.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.