#### Powell, Appellant, vs. Powell, Respondent.

*March 25*

April *13, 1915.*

*Slander: Counterclaim.*

In an action for slander the defendant may counterclaim for a slander uttered at the same time and place as the slander set up in the complaint. The entire word-encounter is in such case the “transaction,” within the meaning of sec. 2666, Stats.

Appeal from an order of the circuit court for Sauk county: James O’Neill, Judge.

*Affirmed.*

This action was brought to recover damages for. slander. The complaint sets up three separate causes of action. The defendant answered, setting up two counterclaims, to each of which the plaintiff demurred.

The court-sustained the demurrer as to the second counterclaim and overruled it as to the first.

The plaintiff assigns error in overruling the demurrer to the first counterclaim, which is as follows:

“Further answering the allegations of the first cause of action in said complaint contained, and as and for a counterclaim thereto, the defendant alleges that on the 6th day of May, 1913, at the time and place and as a part of the conversation therein referred to, the said plaintiff in the presence and hearing of one Eloyd Darrow, Lula Powell, Ehnina Powell, Albert Wagner, and other persons, did maliciously speak and publish to, of, and concerning this defendant the following false and scandalous defamatory words, to wit: ‘You are a pup, the biggest pup that ever livedthereby charging and intending to charge that this defendant was a person of low, mean, and disreputable character and habits. That in addition to said false and defamatory words, and on the same date and under the same circumstances and in the hearing of the same persons, the plaintiff did maliciously speak and publish to, of, and concerning the defendant the following false, scandalous, and defamatory words, to wit: ‘Where is that watch you stole from your father *V*thereby charging and intending *505to charge that the defendant stole bis father’s watch; and defendant further shows as a part of his said counterclaim that by reason of the utterance of such false and defamatory words the defendant has suffered great damage to his reputation and great mental anguish, all to his damage in the sum of two thousand dollars ($2,000).”

Eor the appellant the cause was submitted on the brief of *Grotophorst, Evans & Thomas. .*

Eor the respondent there was a brief by *James A.*Stone, attorney, and. *John A.*Aylward> of counsel, and oral argument by *Mr. Ayhoard.*

KeewiN, J.

The first cause of action charged that on May 6, 1913, “in the town of Excelsior, county of Sauk, state of Wisconsin, the defendant, in the presence and hearing of Eloyd Darrow, Lula Powell, the plaintiff’s wife, and others, maliciously spoke of and concerning the plaintiff the following false and defamatory words: ‘You stole straw from your mother. You are a thief.’

“Eurther complaining, plaintiff alleges that by reason of the utterance of such false and slanderous words the plaintiff has suffered a great damage to his reputation and has suffered a great mental anguish, and has been damaged in the sum of two thousand dollars ($2,000).”

To this cause of action the defendant set up the counterclaim set forth in the statement of facts.

The decisions of this court construing the Code favor settling all controversies, so far as may be, in one action. In an action by plaintiff for assault and battery committed by the defendant on him, an assault by plaintiff on defendant in the same affray was held pleadable. *Pelton v.*Powell, 96 Wis. 473, *71*N. W. 887; *Gutzman v.*Clancy, 114 Wis. 589, 90 N. W. 1081. If in the same encounter, in an action by plaintiff for assault and battery, defendant may counterclaim for assault and battery committed on him, it seems clear that *506in a slander action tbe defendant may plead a slander arising at tbe same time and place as tbe slander set np in tbe complaint. It bas been beld by tbis court that tbe word “transaction” in sec. 2656, Stats., as applied to assault and battery cases, includes tbe entire physical encounter. *Pelton v. Powell, supra; Gutzman v. Clancy, supra.*It seems plain, therefore, that in slander cases “transaction” must include tbe entire word-encounter.

In *Pelton v. Powell, supra,*it was sought to limit “transaction” to contract relation, but that contention was overruled. Page 415. , If tbe counterclaim grows out of tbe same transaction and also defeats or modifies tbe plaintiff’s claim, it may be pleaded under Wisconsin decisions. *Dietrich v. Koch,*35 Wis. 618; *Weatherby v. Meiklejohn,*56 Wis. 73, 13 N. W. 697; *Heckman v. Swartz,*55 Wis. 173, 12 N. W. 439. As to meaning of “transaction” as defined by tbis court, see *Emerson v. Nash,*124 Wis. 369, 382, 102 N. W. 921; *McArthur v. Moffet,*143 Wis. 564, 128 N. W. 445. True, there is some conflict of authority, as pointed out in *Gutzman v. Clancy,*114 Wis. 589, 90 N. W. 1081, and *Wrege v.*Jones, 13 N. Dak. 267, 100 N. W. 705. We think, however, that this case is ruled by former decisions of this court heretofore cited, therefore the order of the court below is right and must be affirmed.

*By the Court.*— Tbe order appealed from is affirmed.