*1 BARSH, Trader, Sole d/b/a Fidelity Cas Line, American & Truck Richmond, Corp. Inc., ualty Company, Manufacturing Cor Va., and Kerr Glass Error, poration, Plaintiffs v. MULLINS, of the Estate Administrator
H. L. Deceased, FISHER, Melvin Defendant in Error
No. 37792.
Supreme Oklahoma. Court of
Jan. 1959. Opinion
Dissenting 1959. Jan. April 14,
Rehearing 1959. Denied
Application Second Peti- File Leave May 12, Rehearing 1959. Denied tion *2 Rucker, Cox, Tulsa, Tabor & Welcome Pierson,
D. City, plaintiffs Oklahoma in error.
Rainey Barksdale, & George Inglish, B. Okmulgee, Blackstock, Arthurs Bristow, & defendant in error. therefore, Commerce under the Interstate JACKSON, Justice. qualified Safety regulations was not Mullins, ad- by H. L. action This drive in interstate commerce. Fisher, Melvin estate of ministrator of *3 wrong- to hold defendants Plaintiff seeks damages for deceased, to recover conspir a liable inuring under the rule when damages for ful death and acy re conspirators exists each of the estate. benefit deceased’s of sponsible any said for the one of acts between a collision from Death resulted conspirators furtherance of -done in a by deceased driven an automobile Gower, conspiracy. In v. 70 Okl. Blasdel an Hall, who was by Thomas truck driven 178, 644, first 173 P. rule is stated Barsh, and Obie employee of d/b/a John syllabus paragraph of follows: However, nei- Company. Barsh Produce conspiracy to have “When a is shown are Barsh Hall, nor Obie Barsh ther John accomplishment existed for prede- Plaintiff’s parties action. to this par- object, conspirators each the. parties exe- cessor settled with these ticipating conspiracy are re- in such sue not to a release and convenant cuted sponsible the acts of one for parties were other Four their favor. conspirators said done in furtherance The material the release. also included in conspiracy.” of such Glass Kerr this action are defendants Barsh, Spence, 63, 35 Corporation Roy also v. See Powell 169 Okl. Manufacturing Plaintiff P.2d 925. Roy Truck Lines. Barsh d/b/a on recovery defendants seeks from said conspiracy, A in Clark defined the accident time of grounds that 347, 263, Sloan, 37 P.2d is a v. 169 Okl. truck, Barsh Hall, of the the driver persons to do combination two more carry- Company engaged were by act, lawful act an unlawful or to do a Prod- Barsh ing conspiracy in which out a gist civil action means. The of a unlawful defendants each of said uce damages con conspiracy for not the co-conspirators. spiracy. shipper. Defend- Kerr is a Defendant purposes We will further assume for hire, public carrier for a ant Barsh is opinion that there was sufficient of this Interstate Commerce duly licensed conspiracy tending to a establish evidence Company is Barsh Produce Commission. question jury on a so as to create al- Defendants trucker. a non-licensed this issue. together and with conspired legedly conspir- argue if a that even Defendants permit non- “such non-licensed trucker acy proved they liable are not because masquerade as a’ com- trucker to licensed was no causal connection between there protection guise under mon carrier the'object -conspiracy and the acci- hire, permits, carrier the common rely Bradley dent. Defendants v. Roy Barsh licensing defendant rates and Co., 51, 184 Okl. 84 Chickasha Cotton Oil Company” which Truck d/b/a held that one P.2d 629. In case we both in violation of State practice was unlawfully permitted oper- who another law. and Federal permit ate a truck not liable party injured negligence' accident the truck was a of the of the At the time driver, shipment mer- where unlawful use of interstate carrying an jury had no causal connection with defendant Kerr. the truck chandise for plaintiff. injury. The unlawful the truck verdict for use of' substantial returned purposes to be mere condition and for the of this was said not assume willWe injury. justified contributing in find- cause of the jury was How- opinion that the ever, necessary for us to negligence Hall ing that determine controlling the acci- that case is in- proximate cause whether was a which sta,nt case., and, eye necessary only Nor vision one decide Hall had dent. 848 non-acting conspirators City Cleveland, 1951, are liable v.
whether
East
co-conspira-
negligent
their
acts of
St.
Ohio
849 right plaintiff of action “It the contention expressly reserved release railway companies, persons might have two who the Okmul- against other plaintiff’s gee Kansas, causing Northern and the Okla- caused or assisted tort-feasors, Gulf, Subsequently, against homa & joint damage. a verdict principal, jury returned decisions of this and of court upon deriva- jurisdictions the defendant’s courts of other are cited based $600 agents. We acknowledgment acts of its the effect for the that an tive agent plaintiff released that the release of satisfaction held joint with directions one principal reversed defendants sued as two other, In the judgment defendant. tort-feasors will not relieve enter opinion we said: unless body such instrument shows effect. intended to have such case, the facts in “Under (cid:127) Co., Lawyer-Cuff Bland Okl. v. defendant only which the negligence announce P. The cases cited 885. possibly company could applicable the rule of those facts em- agents or negligence cases, question in and the decisive pumper Colpitts, whose ployees, *5 case, it, whether instant as we is view the caused wrong valve and the turned joint railway companies the two instead watercourse flow into the oil to * * (cid:127)* ** tort-feasors. pipe line. of the “It is not contended the defend liability de- “Therefore, the of the any way ant participated in arise, in act company can pipe line fendant or Okmulgee acts of the or Northern doctrine all, only virtue of the by if its employee, motorman or other which respondeat superior.” of injury caused or resulted syllabus paragraph of In the second there was no act or concurrent acts is held: negligence part on the of defendant “Where the master is liable a third which, way, contributed to the solely party for the tort of his servant . ** injury by respondeat reason of the doctrine of “ ** Assuming that Okmul- superior, independent no or concur- Railway Company, gee Northern ring negligence act of the master motorman, negligent, through its shown, release the servant valid pri- negligence arid that such was the liability operates from for the tort death mary proximate cause of release the master.” n plaintiff’s intestate, defendant Kansas, In Hammond Co., v. Ry. O & G. secondarily company only be would 72, 731, 732, 109 Okl. 234 P. the defendant respondeat principle on liable railway company leased portion of its superior, liability principal of the ' railway tracks to another company. An * * agent. acts of his employee lessee railway negligently “ * * * . words, In other the doc- killed plaintiff’s deceased. Plaintiff ad- respondeat superior-is trine applied ministrator released the lessee and contin- case, in such release of the one prosecute ued to against action defend- who committed the tort inures to the ant lessor. We held that the defendant principal.” benefit of the lessor was at one time liable because it acquiescence had its silence and led appears The of this rationale view to be public to believe that the lessee was agent prin- when the is released the portion authorized to exercise a of defend- , is-deprived cipal right of his reimburse- of. franchise, ant’s but that the release of the opinion Kruse, The ment. Losito v. 136 railway company lessee released the de- 183, 705, 24 St. N.E.2d 126 liability. Ohio A.L. 707, fendant body In the .from of the 1194, opinion following language: we contains said: R. 850 pendent
“A settlement release of the with and tortious conduct lia- so bility master. servant will exonerate the was not derivative. It is not neces- Otherwise, sary be de- the master would for us to lia- determine whether the prived right bility reimbursement conspirator of his non-acting would after servant, claim primary be if derivative a case where be object could settlement with the servant cause dam- was to age person enforced the master.” to the injured. It in such conspirators the non-acting however, held, that a release court independent would be considered master partial by the satisfaction negligence as commanding or fol- advising This the servant. would not release commission of the tort liability servant which caused lows because the injury, and to that extent A would be liable primary release and not derivative. they if had operate committed the act with the master could their own hands. Kansas, See Hammond prejudice. v. Ry. O. Co., & G. supra. In the instant We must now determine whether case defendants in way participated no liability, the instant case the defendant’s the driver’s negligence injured which any, primary or derivative. In 11 Am. plaintiff. Nor did participate in Conspiracy in sub- stated § Jur. Company’s alleged negli- non-acting stance that the gence in unqualified placing an driver conspirator may by invoking be established road, conspire did not respondeat superior. Reid rule of damage cause plaintiff anyone else. Holden, 125, 130, v. N.C. S.E.2d *6 they If were ever liability liable such was court said: the by reason of participation their alleged in that, “It would seem as to a con- joint venture, a and to that extent their spirator committed no overt act who liability for negligence acts these damage, in the of his resulting basis could’ possibly not greater be than that of co- liability for the conduct of a principal for the negligent acts its conspirators close resemblance bears agent or partner that of a for the tortious principal liability of a to basis acts partner of another in which he did not respondeat su- under the doctrine of participate, and of which he had no ad- agent.” perior of his for the torts vanced knowledge. liability The in the In that case the court judg- held that a latter case is also upon based the rules of conspirator ment in favor of the acting was principal agent respondeat superior, against a bar to an action non-acting and is derivative in nature. See 68 C.J.S. conspirators. This is the- law Oklahoma Partnership footnotes, 168 and § and Bar- judgment where a is rendered in favor of rett and Seago’ Partners and Partner- subsequent a agent an action filed ships, 1, 6, Vol. pages 459 § and 460. principal. noted, It against the is to be There however, magic is no judgment that a in favor of a “conspir- word acy” in is not civil joint true tort-feasor a bar to ac- cases. an In a civil conspiracy the gist of joint against tion other tort-feasors. Lewis action is not conspiracy Cir., 463, but the damages. 57 Ingram, v. 10 F.2d certiorari In most cases a where 614, 16, conspirator U.S. 77 has denied 287 53 S.Ct. L.Ed. been held liable for acts his co-conspirators, 533. In that case sued object defendant was of the conspirator. conspiracy rejected The court damage as a de- was to particular plaintiff. prior If, judgment claim that a fendant’s by plaintiff, contended alleged conspirators liability other there can be injuries favor of the caused negligence the action co-conspirator was bar to him. The of a and his expressed employee, though basis for so holding was it was object not the guilty defendant anyone, fact of inde- damage such lia-
851 upon unqualified employed could not have necessarily based bility must true principal It is liability driver. This does not follow. governing rule accord- agent, qualified Hall driver its was not for the acts tortious ing It therefore Commis- the Interstate Commerce derivative nature. therefore Safety sion’s regulations those who even if but follows release of that the extin- Produce negligence Company been licensed primary had guilty of the nevertheless, con- un- have, employed an other could liability guishes qualified desired. spirators. driver so Plaintiff further that Kerr Plaintiff further contends contends independent guilty of independent negligence guilty defendant Kerr was joint qualifications failing to check as a negligence is liable so Machine, Foundry claimed driver. regard Marion & without tort-feasor therefore, Supply Duncan, and, v. liability conspirator Co. Old. P.2d plaintiff Hall sought not to sue to recover release and covenant defendant shipper grounds could on the and Barsh Produce independent inde liability such contractor who contracted extinguish Kerr’s pipe haul oil unfit pendent field defendant negligence. hauling Answering pipe. unskilled in immediately fol- which In the discussion (cid:127) this contention, we said: lows, necessary in mind bear “Ordinary or not is neither only problem hauling considered whether inherently dangerous unlawful. independent negligence nor Kerr was duty shipper in addi- proximately is under no causing the accident participation state the motor to ascertain whether to its claimed tion complied considered carrier has with the motor conspiracy. of the acts Some inquire na- was a vehicle laws into that it tend establish might equipment. inquiry assumes spirator, present adequacy ture of his our but inherently conspirator and dan- An is not an as a automobile derivative *7 gerous whether Kerr machine.” question of the sole relates to negligence independent guilty was Plaintiff observes that in the last men- which accident proximately causing the tioned case the suggested court if the that acting prevent release would shipper had aided or abetted trucker in benefit inuring to the conspirators from his violation of the law could not Kerr. contend that independent the trucker was an Apparently, plaintiff independent contractor. negligence One act of tending that in such case the would charged against permitted Kerr trucker is that shipper become the servant of the that shipment to haul inter- so Produce Barsh shipper would then have a to see duty knowing that Barsh Prod- state commerce qualified, that the was driver and therefore Company uce did not have Interstate guilty independent Kerr would permit. neg- be If this was Commission Commerce qualifications ligence failing check per independently negligence se considered appear driver. It does this conspiracy, it of the not for the reason negli- in in itself constitute actionable an aider would Kerr and abettor constituted See 35 governing gence. Federal statutes Master Servant of the violation Am.Jur. Furthermore, commerce, 548. Marion Ma- neg- shipments interstate such § did hold that chine case the court had no causal connection alone ligence destroy abetting would the in- Bradley aiding v. Chickasha Cotton accident. merely dependent contractor but relation supra. there Co., argues Plaintiff Oil arguendo that such contention was in that assumed connection if Barsh causal assumption In this by making Company licensed correct. had been Produce mistakenly influenced certain court Commission Commerce Interstate Bradley language v. Chickasha sue used was also void. This is with- contention Co., supra. that case the Cotton Oil In out merit for numerous reasons. permitted contrac- knowingly defendant County The jurisdiction Court had au- permit tor to use its in violation of thorize the execution of the release and constitute might law. The court said this covenant not sue; therefore, even if that part proof of a master and servant part of the order directing further suits relationship there was other evidence if void, it would not follow relationship. dis- tending show such balance of the order was void. cussing question, court further Furthermore, part of the order di- said Old. 84 P.2d [184 633]: recting the institution of such action “ ** relationship A is never “may be deemed in the best interest said adjudged and serv- to be that of master ** estate just to recover claims” ant unless the master is shown to not void. Pursuant to his order the admin- had, theory, some control at least proceed istrator did to institute an action alleged over the acts servant which he deemed to be in the best inter- injury. Whatever is which caused the ests of the estate. We have held that there payment mile- concerning “just” no claim these defend- permit, un- age and use of the tax ants because were not of inde- disputed present evidence in pendent negligence proximately causing the this neces- showed a total absence of accident. plaintiff This mean had does not sary element.” right no to institute the The action. trial court overruling erred in mo- Likewise, defendant’s case, is a in the instant there tion for a directed verdict. total lack of to show tending evidence independent Barsh Kerr over control judgment is reversed and the cause or its driver. remanded, with instructions to set aside judgment and to render judgment for de- Finally, plaintiff contends fendants, Kerr Glass Manufacturing Com- re the release and covenant not to sue pany Barsh d/b/a instrument was void leased defendants such Truck Lines. County and of no effect. The order of exe authorizing the administrator to Court DAVISON, HALLEY, JOHNSON, sue cute the release and covenant not to CARLILE, JJ„ WILLIAMS and concur. further directed the administrator: “ * * * proceed in such man- WELCH, J.,C. concurs in result. inter- deemed in the best ner as *8 press, prosecute, est of said estate WILLIAMS, BLACKBIRD and JJ., actions, dis- proceed institute or otherwise sent. provided, to re- by law as Order claims, damages, debts and just
cover persons from all said estate losses to BLACKBIRD, (dissenting). Justice whomsoever, only those excepting agree I cannot with majority opinion. Adminis- named with whom above it, As I read it mentions two considerations enter into herein directed to trator is which against militate upholding the sup- (Emphasis Not to Sue.” Covenant against Barsh, judgment verdict and plied.) Barsh Truck Line and Kerr Glass d/b/a if, applicable contends that Corporation. Plaintiff Manufacturing I use the law, plaintiff did not have a cause of words “considerations” instead of “rea- portion “may” defendants that sons”, “do”, action instead of because quoted void; order above there- of them is only inferentially, one mentioned fore, part of the order abstractly, which orders or discussing the case of Bradley the release and covenant to v. Co., execution Chickasha Cotton Oil 184
853 * ** following operates 49 carrier or broker ”. 629, in the 51, 84 P.2d Okl. b). 332(a, specifically Act U.S.C.A. § words: provides “any person, whether car- use of unlawful "The rier, consignee, any shipper, broker, or or not a condition abe mere said to officer, employee, agent, representative or injury.” contributing cause who, by “any thereof” means of false statement: immediately this follows Then representation, by statement or or use necessary for us “However, it is any bill, lading, false or fictitious bill of con- case whether that to determine . * * * receipt, voucher, deposition, lease, instant case.” trolling sale, by any bill of other means paragraph, * * Then, same * end of the at the device knowingly shall will- opinion states: fully, by any such means or otherwise fraudulently regu- seek to precluded evade or defeat from recover- "Plaintiff is chapter provided lation in this reason for motor any for another ing in event brokers, carriers or shall mine.) be deemed (Emphasis upon aof misdemeanor and conviction of the. with a discussion follows Then it thereof be fined not more than for the $500 regard “release”, its conclusions in offense and not than first more $2000 an- therein obviously control thereto any subsequent offense.” 49 U.S.C.A. § judgment reversing decision nounced 322(c). the foregoing, regard- view of appealed from. Bradley court less what this has held in - course, to the adverse Of determination Co., supra, v. Chickasha Cotton Oil phases of such on either plaintiff involving other case violation of one re- itself for be sufficient would statutes, our State’s must federal rule tena- determination either versal —if applied rule, be here. Under that where be. opinion, neither could but, my ble— the Interstate has Commerce Commission plain- recovery jury awarded Here the person granted a or firm a fran- license or that the determination its based on tiff operate interstate, chise to trucks a com- damages arose out Estate’s Fisher Melvin carrier, duty safeguarding mon “the plain- act of the federal violation public performing while such franchise In- proved, called “The pleaded and tiff non-delegable legally and the franchise Act” in reference Commerce terstate responsible holder is therefore for the II, (Part 49 U.S.C.A. § “Motor Carriers” permits those whom it duct of act under that, except' provides Act seq.). Said et franchise, though persons its such even provided “no common carrier as therein independent contractors(Emphasis provisions subject vehicle” motor Hodges Johnson, D.C.W.D., mine.) v. ** any interstate engage in “shall Va., F.Supp. Applying 491. * * * public highway operation on present case, Roy Barsh, rule to the d/b/a respect such force with is in unless there Line, Roy Barsh Truck to whom Inter- public convenience certificate carrier per- state Commerce Commission issued the Commission au- necessity issued mit, Barsh, under which and Obie John * *” (49 operations: thorizing such *9 op- Barsh Produce d/b/a ; anyone knowingly 306(1)) and U.S.C.A. § truck death-dealing time erating wilfully violating any provisions, and accident, equally is with the liable rule, requirement, any' regulation, or “or injuries due latter for to the concededly thereunder, any term or condition order operation truck, negligent and, certificate, permit, license, any for legal responsibility Truck Line’s said for the penalty a is not herein which otherwise Barsh, and Obie conduct John d/b/a against provided,” an offense is Company, along Barsh Produce with the may proceeded and States the United driver, Hall, Thomas latter’s whom against in “the district court of United act any permitted under its franchise, where such motor it for district States 854 being distinguished only partial from a a consideration primary, a as
mas for relationship by the total and any damage loss (without sustained secondary, one Fisher, the Produce Melvin between Deceased. and servant of master a furnish line to the truck Company and “In executing this F. instrument J. derivative, vicarious, liabili- for conduit Brown, Administrator of the Estate wrong. opinion is majority ty) then the Fisher, Deceased, hereby of Melvin de- present purpose clares his and intent com- plaintiff the majority denies The and, be, to assert claims if needs insti- court and trial jury pensation against persons, tute actions in- firms other death and for him awarded * * corporations other than They have accom- herein. involved juries John Barsh, co-partners Barsh and Obie holding that process of by the plished this Company, Barsh Produce predecessor Brown, plaintiff’s F. d/b/a when J. Hall, Estate, Thomas to recover the balance Fisher Melvin of the Administrator remaining of the damage loss and parties, other sus- delivered executed by Fisher, tained instrument, the said Melvin De- defendants, an entitled than Sue”, (Emphasis mine.) ceased.” To Not And Covenant “Release he, $2,500, in ef- consideration a recited majority opinion theorizes that it was collecting precluded the estate fect solely co-conspira- the acts of defendants’ against damages of its remainder tors, Barsh, and Obie John d/b/a parties thereto though even defendants Company, and the truck driver Though the thing. any such intended never (beneficiaries Thomas Hall of the above intention abrogates the opinion majority agreement) plaintiff’s injuries; that caused instrument, since executing the party liability merely that defendants’ sec- liability that, if defendants’ recognizes it ondary through and derived their relation- several, of tort as in the case joint and ship parties primarily (as with those liable type would of this feasors, release “a a master that of for the acts of his serv- unnecessary, them”, is release ; ant) and therefore that the Fisher Es- belabor that opinion, this purpose of tate’s release of Hall and Barsh Produce connection, v. see Boucher In this point. Company (involving only part a of its dam- 866, 312, 43 N.W.2d Thomsen, Mich. 328 was, ages) legal effect, a total release there- the annotations A.L.R.2d damages, precludes of all its it from not be amiss (However, to. recovering damages additional what- foundation concrete is there show defendants, simply soever be- instru- language of the recognition this liability only their cause “derivative.” majority quoted in the than ment other of the cases cited None majority there “the cus- referred opinion and authority holding. these, for such a Of general release.” language tomary only which anything has to do with follows: is as language This conspiracy is the North Carolina case Holden, of Reid v. N.C. 88 S.E.2d agreed understood “It 125, 130, from which majority quotes compromise ais settlement following: disputed claim and that doubtful that, “It payment conspira- made is not to would seem liability admission tor who committed no overt as an act result- strued party parties damage, ing liability the basis part of the here- of his released, co-conspirators liability is ex- for the conduct of his and said settlement bears close resemblance to the denied basis pressly compromise a principal and to as a avoid the doc- made respondeat superior buy peace. their trine of litigation *10 (Emphasis agent.” tort mine.) his of n ‡ ‡ ‡ ‡ ‡ “ *' * * opinion consideration this An the for examination the in this readily to sue case representing not North Carolina reveals that the covenant
855 without “In a for purely damages suit civil part is dictum caused quoted by conspiracy, not authority. plaintiff, This court should order to any in cited persons overruling tort, the verdict connect for with the a basis use as court, and respondeat invoke in the trial either the judgment rule entered superior what consider plaintiff of I or the which depriving rule makes each thus co-conspirator loss, speculation recoupment agent spokes- just a rea- enterprise.” man of what all court as to unlawful other some conspirator’s (Emphasis rationale, mine.) son, behind a or co-conspira- his the acts of being liable That pertains merely statement to evi form other tors, as to what surmise or its dence and the manner of proving a con a liability, in bears theory, liability, his spiracy is reading obvious from the case may resemble resemblance, by analogy, or, of Schultz v. Frankfort Marine Accident & jurisdic- remains in this The the most. fact Plate Co., 537, Glass Ins. 151 Wis. 139 a that in tion, generally, the nation and over 386, 390, 520, N.W. L.R.A.,N.S., 43 cited conspirator jointly and each conspiracy, authority Text’s footnote as sole resulting damages all severally liable for revealed, it. As will hereinafter be no such Ingram, Lewis v. conspiracy. See from proof present aid was needed in 463, 53 C.C.A.Okl., F. certiorari denied to connect Kerr Glass Manufacturing Com 614, 533. 77 L.Ed. 287 U.S. S.Ct. pany, Atkins, through Manager, its Traffic “Conspiracy”, it is Am.Jur., sec. stat- operation with the unlawful of the death- ed: present dealing truck in case. Atkins’ parties testimony own Furthermore, between does this. connection “The established, support, whatever was cited case seems having been lend at least conspiracy by inferentially, proposition pursuance of to the done in one conspirator responsible considered conspirators is one acts all conspirators; co-conspirators (after the act all is connected joint with, proved of, tort- part therefor or a equally liable be the con are they independently, spiracy) apart of whether feasors, regardless conspiracy idea, parties agency respondeat superior. to the original either the irrespective involved the cited case fact participate alleged therein actively purpose annoy to be for the not did ing, harassing intimidating plain to which extent benefited Schultz, get tiff in order to him thereby. to leave any of law mine). spiracy “Every after the common party to all the other already formed person entering into a entrance, [*] design.” parties acts committed [*] either furtherance deemed (Emphasis [*] before [*] kowski, liability insurance testifying in a certain law suit in the event covery employees. The agent, a new trial should private city of Bacher, one of detective Milwaukee, sought Mr. specific be same agency, company, its granted Gordon, manager agency’s and refrain from acts therein. Re which an employer’s one detective- resident Pacz- plain noyed, intimidated the harassed and says: majority 'The committed, performed, largely tiff were Conspiracy, 54, it “In 11 § Am.Jur. and another of the detec by Paczkowski that the in substance is stated employees Heyer, agency’s named who tive conspirator may non-acting of the made a defendant the action. by invoking the of re- rule established There, reversing judgment spondeat superior.” court, after said court had directed trial defendants, Wisconsin of the cited statement verdict wording The exact Supreme said: Court is: *11 856 argued any
“It detec- for is that neither the the acts of one of them is some- Heyer par- from, agency thing are made tive nor different the true defendant; plaintiff rule”, “conspiracy wholly separate ties hence the is complain independent of, “respondeat un- right superior” has not the lia- part Heyer. bility. 18, Conspiracy lawful actions on the In IS it is § C.J.S. liability conspirators But said: the several, and, damages joint civil is conspirator “Each jointly is and sev- prima facie, conspiracy being shown erally for all damages resulting liable plaintiff may give in evidence the the conspiracy. the * Accordingly, the sayings conspirator acts and rule is well settled that where the done or in furtherance of persons two or more enter into a con- purpose, common whether that con- spiracy, any act done by in fur- either spirator party defendant not. be a therance of design the common (Citing authority). argued is It general with plan accordance the be- the was not master defendant Gordon all, comes act of the and each con- was, Heyer but like Paczkowski or spirator responsible is such act. for them, employé agen- the an detective This is true even though results company the insurance cy, specifically were not intended or the' responsible and Bacher ex- * * * agreed specifically means on ”. authority cess of or excess zeal (Emphasis mine.) part Heyer Paczkowski. co-conspirators To are me the rule view the This is also erroneous joint “equally” as tort means liable feasors persons charged are as law. When exactly says, e., i. is lia what each conspirators, prima and a facie case of same, way, ble in identical and to shown, say- conspiracy acts and degree, every same extent and as other. ings conspirator whether a de- of each primarily It does not mean that some are not, in furtherance of the fendant only secondarily, liable are and others conspiracy is evidence unlawful derivatively, If liable. all are same on the co-conspirator not under rule level, equal status, liability, or in as to respondeat superior, but under that is, and the act one intents and all conspiracy law which makes rule of the purposes, every act of other member of spokesman agent of all each conspiracy, liability their therefor enterprise. plain- the unlawful several, joint, as as well then I can see damages in a for civil caused tiff suit why liability no reason the total be cannot invoke, by conspiracy may pur- adjusted manner, part in a severable any person connecting pose of paid damages by some, rest and the tort, respondeat either the rule su- others, just recovered from intended perior or the rule above stated rela- to be done—and done—in this case. acts and admissions tive connection, In Am.Jur., this see 45 “Re elementary spirators, this so lease”, Though Kruse, sec. 36. Losito v. require the citation not to of au- 183, 707, 24 Ohio N.E.2d St. ' thority support. in its A.L.R. majority, cited was a tending to hold is evidence there case, negligence master-servant instead of a Gordon and Bacher under defendants case, and conspiracy is therefore no au rule, and the conspiracy defendant thority majority’s theory (contrary ' company under this same insurance any authority I seen) that- lia ' as well as under the rule rule re- co-conspirators bility of derivative, superior. (Citing spondeat authori- opinion quotes in that case from another emphasis (Most mine.) ty).” case, following: above, may deduced, “It is an old From rule law that party of a charged liability, the members with a however *12 plaintiff’s petition a suit alleged with in sub- threatened informally, or defendants, may settle stance with buy peace, together that law, may John waiting Barsh, Obie controversy, without Barsh Produce his own d/b/a a suit trial of entered into a to vio- the a suit at law or by ship- set- late the Act any such Interstate Commerce already begun, and that commerce, ping faith would merchandise in interstate good made tlement carrier, a re- a common operates as as trucks owned and protected fully operated affected, according Company, by Barsh parties the lease to permit operate; has I. mine). no (Emphasis C. C. which so to its terms.” Hall, by and that a certain one was driven prin- above recognized the The trial court pass physicial who could not examina- jury its ciple it Instruc- when told the required tion of for holders drivers plain- if found for No. that it tion permits; that, I. C. C. in the course total should, determining the tiff, it after carrying conspiracy, out this unlawful en- damages which he was amount truck had the accident of which arose out paid as $2,500 therefrom, titled, deduct injuries damages which total release delivered consideration for the $200,900 sum sought. was we aforesaid); and (as Hall and others presume jury followed that the must As will majority opin- be noted from the direction, as accepting said settlement ion, it recognizes the existence of con- tanto”, “pro plaintiff's claim satisfaction spiracy driving and that the the truck Yet, a verdict extent. or—to that by Hall, a physically incapacitated driver $76,000 vacated judgment in the sum regulations, proxi- I. C. C. was the mention- by majority opinion without opinion mate cause of the accident. That ing this: erroneously assumes, however, that even though may the defendants have been Ingram, While it true that Lewis v. conspiracy, supra, they members of were pointed was out that the defend- “non-acting” charged conspirator Majority ant was members. The has as that liability meaning personal, term “no-tu- rather than vi- confused acting.” carious, Apparently they attempted the court construe no distinction accident, term to refer liability to the rather than (what majority between the formation, furtherance, “non-acting” conspirators or terms) and “act- conspiracy; regard ing” conspirators. opinion the defendants in that conspirators, theory to, treated, “non-acting” on the conspira- case referred all they independent “joint guilty tors as tort-feasors.” no negligence causing quote the accident. To theory majority's Even apparent opinion: majority “non-acting” the defendants were con- spirators, “In discussion which immedi- liability only, “derivative” follows, necessary tenable, ately it is to bear applicable it would not be problem only in mind that con- ample I this case. find evidence in the is whether or not jury sidered Kerr support record to a conclusion independent negligence guilty were both members proximately causing spiracy, actively the accident in participated gen- in a participation to its operate addition claimed eral scheme to vio- motor trucks in conspiracy. Act, Some of the acts lation of Commerce the Interstate supra. did, might tend considered to establish If it is immaterial conspirator, present they, but our was a employees, agents or of their inquiry derivative they acted, assumes through whom officers conspirator relates intended, foreseen, sole have Kerr was question of whether doing, injury Fisher, so death Melvin independent negligence proximately family, member of his or to his es- pre- causing accident which would would have tate resulted. *13 owns, acting con- release of the vent he also had a basement spírate a inuring Trenton”; from to the benefit house at “25 North that in <rs 1946, mine.) Tulsa, (Emphasis right Kerr.” after the witness left building little at 27 Trenton North my opinion, expressive of above was made into an room for insulated misapprehends the theory. It involved ripening bananas; that there tele- two are conspiracy true in basis of a phones Trenton; at 25 North his that entity, forgets person, that once a brothers, Barsh, part- and Obie are a John party conspiracy, is a de- to a or common nership under the firm Barsh name of accomplish sign, either an unlawful 1952, Company, 6, April and on thing thing by or to do a lawful unlawful (the they accident) now, date means, responsible he for the acts own four building and rent trucks his co-conspirators fur- anyone of his in done business; their that, moved to when he scheme, he in- therance of that whether Joplin, he arrangements made Kerr foresaw, tended, not. such acts or pad his leave bills freight book of Therefore, that the evidence established agreements company’s and lease with said conspiracy parties the defendants Atkins, Mr. understanding with the to violate the Interstate Act Commerce when Kerr had a load bottles wanted operating, carrier, as a common in inter- hauled, Atkins would him call collect per- commerce, state I. without an C. C. down; he would send that between mit, it did is immaterial that defendants 1946 and Mr. wit- called the Atkins nothing contributing to the accident which ness on a hauling; number occasions for had, carry Hall in out driving the truck to during years all the he has hauled for purposes conspiracy. im- It Kerr Glass Manufacturing Company, he liability, material to their that the defend- has transacted such At- business with Mr. ants, Roy Barsh or Kerr Glass Manufac- kins, friend, whom “20 he has known turing Company may not have dictated years”; brother, John, odd has also way unlawful car- years; known Atkins for that when the out, they may had ried have witness has a need one of Barsh anything do with selection Hall “gives Produce’s trucks he -ring them a as the driver of the truck which did telephone piece and asks if hauling though there is evidence that — equipment lease”; that, I could in con- participated actively in both. haulage nection with glass from the Roy that, Barsh testified in he Roy Kerr Glass in the name Tulsa, Oklahoma, Joplin, moved from Line, Barsh Truck signed the witness in Missouri, engaged where he is now in blank, “a bunch” of truck lease forms trucking Roy business as Barsh Truck left them with Atkins. iden- The witness Line, twenty-five operating trucks, freight tified certain exhibits that were Joplin banana business Banana bills “Roy made out Barsh name House; previous to that time he Atkins, signed by Truck Line” and Mr. Tulsa, engaged in business where evidencing shipments in com- interstate brother worked for him as a truck John jars glass merce of from Kerr Manu- Glass “off and on driver for four or years, five March, Company in facturing 1952, as well more”; maybe that his truck that John as exhibits that were letters addressed to driving then for him was one licensed “Johnny Johnny Barsh Truck Line” and operate that, in interstate commerce and Barsh, Trenton, Tulsa, 27 North Okla- produce, the witness’ own besides it hauled homa, signed Atkins, Kerr Glass defendant, glass for the Kerr Manufactur- traffic manager, Kerr’s inclosing checks Company of Sand ing Springs, “starting payment hauling, which letters ’37”; indi- possibly ’36 that during that Tulsa, copies cated that carbon of them his office was in rime a little went building “27 North Trenton” Joplin, which he Barsh Truck Line in Missouri. The witness ments with Kerr denied Glass, that he through had arrange- Atkins, [*] “Q. Well, n when was it he [*] could [*] routing call to 27 to take care of out North Trenton Street manager, traffic procur- Tulsa? A. arrangements After had me. making called but other during World War The witness ing years and that when known the when he hand.” When asked Trenton”, ness cut off structions to follows: regard to they wanted to able for comes of that is mailed to order, either why, with it? lease them truck and Barsh Federal with a different sionally for, (Barsh), of drivers “Q. “A. “If, Mr. Atkins would a testified: Roy time, I hold out one-eyed man at the first their my consent. I Produce, knew * * * jf If there is testimony Barsh would Mr. tax calling at a load of they had either hauls truck I (Barsh Tulsa, arrangement.” further ** Kerr you, didn’t individually as him, Hall and Atkins the three money, trucks were Truck spot knuckle, but denied a load call one of Tulsa, trucks driver, Tom made II; Glass’ Produce “it drew worked mail *— a testified glassware It wasn’t over all if “25” lease. get Johnny check every might what Line, what he payable to truck available for such Barsh Oklahoma.” percent and had them, one, trucks, call witness Mr. Atkins or “27 ever he knew for him not in Co.) trucks up Roy Barsh made And occa- do a as a deal call check me for Produce that forefinger Hall, you for gave haulage, check he your Obie Tulsa; pay- rule, over North ask be- we some do that, Hall wit- had a for his in- as had a with would have A. calling Johnny and sionally I I see Mr. Hall ticular driver? A. truck the owner. I checked one. truck I I truck to call them? A. He could call if he want- That’s Atkins brother was ed to. [*] V would talk to n “A. To check with “Q. “Q. Who “Q. “Q. “Q. [*] “Q. Who checked with them? A. “Q. “Q. Barsh further testified would check if ; n * * listing in you, operator right. would Would If What was the reason for If out You would and furnish He had you n n ifc [*] usually had would be out of he would call that would be wouldn’t your had at *14 thereafter Obie, back and tell would willing the Tulsa you [*] times pass n ‡ a authority he would times. him and he needed if brother would truck we with limit expect he it? A. you Yes, [*] n n [*] to lease see one, he called my the driver would my telephone toit my to check limit if driver? maybe satisfactory could lease. brothers Mr. sir. call trucks and n but occa- n [*] ‡ office you your brothers, No, in 1952 find Atkins you and you? send with par- him Mr. had and direc- n [*] ‡ to? sir. A. a a I he “Roy Company”, tory Barsh as testimony excerpts of this from the Other that he left it there the benefit of as follows: are witness brothers; Jop- when he moved to * * Now, as under- “Q. I lin, brothers moved into what he had supposed to it, Atkins was Mr. stand occupied at Tulsa. Joplin your when you at office call that, part testified of his load, Atkins duties is that correct? A. he had Kerr, manager traffic he selected right; call me collect. That’s ****** operators its mer- hauling of ; that he Barsh. chandise had known “A. If Mr. Barsh doesn’t furnish John busi- years, what fifteen but know equipment his own he doesn’t then tells me that April now, was, on ness he equipment, he will furnish leased 1952, engaged in. testified that equipment, He further he does when twenty years; supposed he had known Barsh to instruct the lessor his em- it within scope equipment when they arrive at Sand equipment ployment engage the kind Springs at our warehouse dock to come de- shipments. first needed for Kerr He upstairs to desk in the my on the office nied that had done business Kerr second their bring registra- floor Produce, any pay- or ever made tion papers tractor trailer Then he freight haulage. ments to it for I proceed so can to execute the lease *15 testified as follows: Mr. Roy Barsh. ****** “Q. your handling Now in * * * you
business, please, sir, say “Q. we will Atkins, Now, Mr. Roy Barsh want a load moved that is the truck supposed driver you in- Line, I Truck what do do? A. up come you to ? and see put operator struct our switchboard to ****** Roy long in a Mr. distance call for “A. guess I you say would it that Joplin, Barsh at Missouri. way. “Q. developes suppose Now it “Q. gets up When he there to see available, he what have a truck doesn’t you, you papers? fill out the A. Yes. you to I talk do then? A. When do “Q. papers What are filled out in need, a Mr. I him Barsh tell what we the way of lease —we talking are piece equipment certain to take about now ? A. little lease A form. jars, exam- truck load of or bottles “Q. That between lease is whom? ple Houston, say Texas, and that is, A. Whoever the lessor the name of up I him. It I leave all tell to him. Roy the lessor and Barsh Truck up it, it him furnish then to handle Line. equipment. ****** Now, “Q. suppose that he then you today? “A. Are talking about truck out a truck sends a there “Q. No; talking I am back about appears your place this that to load April 1952. Barsh, Roy Roy belong does not ****** Line, you Barsh do Truck what do then ? A. Unless he tells me that “A. At time lease was than some other truck I don’t Roy per own signed Barsh Truck Line I. A. about it. do anything Atkins. * * * * * * * * * * * * “Q. it occur on “Q. words, Does occasions that you other executed appear trucks for this other than agent load instrument Roy trucks owned Roy Yes, Barsh Truck Barsh? A. sir. Line? There been have cases. A. Now, “Q. practice had been * ** period time, continuing over what “Q. when the vehicle ar- please, sir? rives, Roy if it isn’t Barsh vehicle ****** Well, do do ? you what A. the under- is— standing years, “A. Two or three something Barsh “A. [******] previously. Well, talking * * * to Mr. Roy pears with his vehicle like “Q. Now, that. when the truck driver ready ap- n n n n n n inspection of any make you load do Now, “Q. you it car- when fill out a lease or not as to whether the vehicle you going the med- at that time it is as to know numbers ries ICC Kerr Glass merchan- haul the driver? ical examination n dise, you, * * don’t * * Mr. Atkins? * * * * * * * “A. No. “Q. Now, you any do make check know, any other does “Q. you If at that time equip- as to the driver and Glass Manufactur- person the Kerr presents ment when himself? inspection? such Corporation make ing n n n n n n n n n n n * No, “A. any I don’t check. make myself but would “A. No one * * * * that. authority to do “Q. Now, paying when it comes ****** service, Atkins, fig- for this Mr. who sir, you, please, whether “Q. I ask percent freight ures what the total Line have Truck not the Barsh payable bill is or receivable by type of depot, office, station, part goes and what to the Tulsa, Oklahoma? office . n n n n leased-truck owner? n n *16 n n jK n n n me told when “A. Barsh Roy Mr. you “The Court: Are about talking that Joplin office to moved home he the Roy Barsh transaction ? in Tulsa. an office have he would n Rainey: talking * “Mr. * I am about * * * Roy April, on day Barsh 6th business “Q. you transact Do previous 1952 and thereto. do, only but A. I with that office? n n * * * * Jop- RoyMr. Barsh at I first call when “A. Mr. Barsh told me that he I call get if can’t him lin then I and accept percent would of the revenue not there some- office if he is Tulsa part pa- the handling as his Johnny Barsh an- his brother times pers. words, Johnny other then phone I would and then tell swers the 85% go to the lessor. Roy tell him that locate try equipment piece certain we need a “Q. And you, please, sir, I will ask Houston, jars to haul a load of your practice it if was not custom example. copy transmitting the lease “A. n * * * [*] Johnny Barsh n [*] * * 4* letter, Roy Barsh after the Joplin freight or in moved Tulsa, out, as the might figure been, have that Roy Barsh agent the Tulsa figuring out do that and show the Line. Truck * amounts that went * owner * * * * Barsh Truck Line. leases, Now, sign those “Q. you n n n n # sign I you, A. don’t Mr. Atkins? “A. the only one that Truck Line. I am Barsh execut- agent * * ed the lease * * so I would have to be * * only one figure that would it. say 'agent’ on “Q. does Where ****** you telling A. am of them? I one * * * * * “Q. just agree- verbal Mr. Atkins It now. your go memory you refresh I will I could ask that Mr. ment you previously haven’t lease testified sign those forms ahead Barsh) (John he held no the manner Certificate and in name my Necessity? way. Convenience A. all That handled said,- actually question er this accident 19S2 I but to probably what In- answer given— to the have to write asked I would know ****** terstate Commission Commerce have them if Washington, and ask answer, ‘Well, the gave this “You file there. got such document partic- only in that thing I know respect is, ular need whenever we com- “Q. get it on the To basis equipment of our to handle a truck load recognized as knowledge, isn’t mon glassware, Mr. here I call John Barsh carrier, I he ? A. don’t interstate usually Tulsa and he is the one that recog- have never At least we know. arranges equip- to furnish us with the a common carrier —/ him as nized ment.’ Manufacturing mean the Kerr Glass “Q. answer, you give that Corporation. Did thing dise down go down kind find out what condition it concern about the should have some down to the dock. ment? A. You look name on the side or the office? A. there, Barsh. making lease been freight (freight [*] “A. “A. “Q. “Q. *17 “Q. “Q. “Q. **«(cid:127)»*» of to see else; mimeographing forms come No; No, It * * * you trucks that haul bills are also furnished Do * * * them our [*] bills) come mean on this and check the each of * * I I if Mr. you Yes, not just never highway, necessary, [*] necessary have a where where sir. don’t do that. from? them, Roy make own office. from? A. those didn’t particular ship- shouldn’t your Barsh had ICC there equipment pad A. isn’t does for me to dp go forms and merchan- insignia? We effort to out it, you? those those them any- your Mr. [*] his go to tile witnesses leged in mony mentioned, however, that, in addition to the ants) reliably of including sisting of scribe, mine.) It would take occasion ? That is two.’ him please 1952?’ sir? A. sir, if which I “Question, “Answer, “Answer, T have met him a time or “Question, ****** “Q. [******] of these all (Thomas it, if these the existence of oath on the 12th of plaintiff’s when of * * * more think be answers above-quoted biased writings and convincingly previous connected impractical ‘Yes, you ‘Do ‘He had hauled, questions Hall) evidence than one bear I did. petition. I will ask you testified in this case the 6th given. at sir’.” mute occasions to this personally know all ?’ with in the were asked documents, to thousand than day April, witness conspiracy * * * quote,' you, It should be September, (Emphasis record of the testi- then, please, defend- or de- pages, (more you some hos- con- I al- transportation just Barsh Certainly. [******] “Q. boys You were, the same interested in this weren’t as the two you? A. tained, there was reliable evidence that one or more listing facts shown of a non-existent conspirators in the Tulsa above-quoted testimony, had telephone firm placed, under directory, and main- the fic- a “Roy titious name Barsh Produce
****** Com- Now, pany.” name “Q. you will ask when This similar being I if to taken deposition shortly existing was aft- Tulsa firm “Barsh your Produce and Obie company (which seems to essential Company” be (composed John majority’s it the name of to the yet theory) containing I think evi- Barsh) holder, Barsh, pointed dence I permit Roy out follow- shows the I .C. C. Tulsa ing conspiracy operating opinion statement in the majority aid to questionable removal be accuracy: holder’s permit after the business easily Missouri, and State from “Nor partici- (defendants) did operation give tended to misleading pate in Company’s Barsh Produce al- trucks, reality, belonging, John leged negligence unquali- in placing an Company, a Barsh, * * * or Barsh Obie fied road, driver on the in operating legitimacy cloak of opinion majority says: also Barsh, permit only issued d/b/a “Likewise, case, in the instant there Barsh Line. Truck is a total lack evidence tending ostensibly his relation to Atkins and any independent show control Kerr Kerr Glass Manu- employment sole over Barsh Produce or its presents evidence Company, the facturing (Emphasis driver.” mine.) unique, spectacle of sorry, indeed my It of the law that understanding (in addition (Atkins) serving man case, necessary, it is in or- ben- himself, conceivably derived he der to conspira- hold defendant as -a liable in the course masters it) three efit tor co-conspirator act of a fur- one, Kerr Glass employment of his therance conspiracy, show re- Company. It will Manufacturing he type outside, some had of control or in- testi- called, above-quoted according to dependent of, the conspiracy the co- over em- course mony, it within the conspirator who It committed the act. has Kerr manager Glass ployment traffic always opinion been my (and the authori- operators to haul Company to select ties out) bear me arising control out Company’s and to engage merchandise of, and exercised in furtherance therefor; equipment kind of needed spiracy, enough; and that is the situa- the here- inferred from reasonably be tion here. By reason Roy Barsh’s ar- testimony that this author- quoted inbefore rangement brothers, with Atkins and his it under his exercised ity (at least Barsh, and Obie to enable Roy Barsh John ex- Brothers) arrangement with the *18 to retain Kerr Glass Manufacturing Com- upon, passing the selecting, to tended pany’s business, even hauling after he left operate the particular driver would who Joplin, State and to moved Atkins was report to office and who must truck given authority agent as an of papers the tractor registration for the with Line to Truck lease unlicensed trucks with proceed “can to exe- that he trailer so and operate drivers that would under said RoyMr. Barsh.” From the cute lease permit. Truck Line’s I. C. C. such If un- evidence, quite jury may logically the the schemes, combinations, lawful were al- at conclu- reasonably arrived the have and grow, lowed to flourish and would not procedure was followed that this sion only competition result in unfair with do- engagement Kerr’s the instance of of the mestic possessing permits, haulers I. C. C. herein; truck, the death involved causing question it only but be a would time of until Hall, approved as the driv- that Atkins and protection regulations, I. C. C. the knew, or should thereof, though even er therefrom, public highways the on would known, incapacitat- physically he was have empty mockery. be an pass physical not the exam- could ed and required working ination drivers The fact that Kerr Glass Manufacturing permits. I. C.C. may Company have known of the forma- operation plaintiff’s case Kerr tion and against conspir- unlawful Even if acy through fail its Company only Manager, would Manufacturing Traffic At- kins, impediment part on the is no any negligence liability. its The absence 964, Wooldridge, case, plaintiff partnership a Missouri corporation or only way that a injured vehicle, a passenger its in another do, through know, anything in an trailer truck. limita accident with a ten-ton employees. The officers, agents, or inju- His principal, judgment damages for said upon imputation to tions namely: defendants, ries three knowledge referred agent’s an Wade, driver; Bldg. Sturgeon, who Local Surety Casualty Aetna & Co. v. 612, service; operated owned 141, Ass’n, tracking 19 P.2d & 162 Okl. Loan facts apply Milling appellant, do not and the County 86 A.L.R. Scott Manufactur As Kerr Glass this case. Company, produce a corporation, whose accepted the benefit of Company ing transported in the truck being Atkins, its Mr. arrangement made between appellant argued, time The accident. Barsh Produce Barsh and appeal, as follows: transportation wares for the “ ‘There is no causal connection be- per employment, course of his alleged tween the the stat- violation of him given duty had formance of plain- by ute Milling Company perform Atkins (as authority the sole injuries, tiff’s there can without position no testified), Company is in said ” recovery.’ no arrangement knowledge deny of said 380; Re (see sec. Am.Jur., “Agency”, There, the court said: Law, 282), sec. Agency, statement of petition “A show reading of will consequenc escape responsibility for the that in the part alleged first it is thereof scheme, operation es of said unlawful the owner of the trucks not had conspiracy. arrangement, and complied the rules statutes and Furthermore, Majority is incorrect regulations Service Public apparent theory in its that Barsh Produce permit op- Commission securing Manufacturing Company and Kerr Glass erate such trucks as a contract hauler liable, Company, in to be must have order upon highways this state. Such negligence which been of some act of regulations pleaded. statutes and Major- the accident. The directly caused petition alleged ap- then that this ity rationalizes follows: pellant, knowledge with full said argues “Plaintiff that there was cau- violation regula- statutes and in that connection if Barsh Produce sal owner, tions em- engaged and Company had been licensed the In- ployed the Sturgeon defendants terstate Commerce Commission Wade, them, op- each of to use and employed unquali- not could highways erate vehicles over This It driver. does follow. fied of this transportation state in the qualified is true that Hall was not a hire of property merchandise *19 the Interstate according driver Com- Company, that and Milling said Safety regula- merce Commission’s appellant ‘procured, and abetted aided tions, but even if Barsh Produce Com- defendants, Al- Sturgeon said F. L. and been licensed could pany they had Wade, them, and in said vi- len each of have, nevertheless, employed an un- said laws and said and olation rules of qualified they driver if so desired.” regulations of the of Missouri’ State that, said by evidence in this case reason unlawful sufficient and of There was question Milling on the of defend acts and conduct of said Com- jury the togo pany, the is liable for all for truck driver Hall’s it became and ant’s damages by negligence it not been the had that occasioned negligence, established Wade, unqualified Sturgeon and under I. of the defendants physically C. C. he was them, in Wooldridge engaged either while v. Scott Coun of regulations. Co., Mo.App., acts and such unlawful conduct. S.W.2d Milling ty petition justify the evidence reasonable inference think this count of a “We conspiracy, conduct the the of existence the and alleges such acts and parties conspiracy a these are jury’s that matters the deter- to show for ” * * * and cases). the statutes mination. into to violate (Citing entered regulations There of the commis- the court recognized, rules and the as does then, Majority, herein If that be we sion. true the gist conspiracy ac- a im- hold, it follows that doctrine of tion is in the injury, the con- rather than the puted spiracy, applies, causal negligence and but the added: many pleaded, author- connection is for “We think in facts this case are that, per- ities hold where two or more sufficient question make a agree together an unlawful sons to do jury as to whether not there was act, conspirators the act of each of conspiracy, and, there a con- were object out of the carrying spiracy, proof that is of value all, is the are spiracy act permitting plaintiff hold one for the dam- jointly severally liable coconspirators responsible for the ” ages conspiracy. by such occasioned * * another, acts of cases) (Citing the sufficien- foregoing demonstrates [******] cy of the evidence support a conclusion Manufacturing Glass that Kerr jury Sturgeon “Defendant F. L. testified At- through manager, traffic Company, its permit, that he no trucker’s had Line, kins, through Barsh Truck Bowman, the that he had Mr. told Barsh, participating actively manager appellant, that was In- to violate an unlawful appellant’s lawful him to haul Act, supra; terstate Commerce products permit, without a fact, as in law—un- were, as well Bowman said for him to send pri- federal der state and both feed, decisions— trucks on down take out the joint tort feasors marily liable many and that he loads hauled * * * truck consequences driving Hall’s appellant thereafter. conspiracy. I see As said furtherance of hired “Bowman testified that he parts of vital it, Majority misconstrues products Sturgeon to haul evidence, princi- disregards legal places mill to them where wanted opinion, applicable. It ples that, are my delivered, and that hauled had unprecedented application aof makes an products lapse many times over the the North Car- theory taken from dictum * * * years. two or three He opinion, supra. could theory Such olina also out the invoices he made of those who been the minds not have the O. had C. D. bills Wade And the “Release and executed drafted possession in his the cash collect- involved herein. If Not To Sue” Covenant ed thereon at injury. the time acted differ- so, obviously they would ** plaintiff de- is thus ently. To hold recovery $76,000 prived the fruits of was at least evidence think this “We predecessor act administra- of his question such to make it for. sufficient tor, intention and con- contrary such not there was to whether jury as contemplation County conspiracy, trary the trial court did and that *20 it, Court, when appearing those before the demurrer overruling not err specifically authorizing its order it entered Conspiracy may evidence. execute the administrator to instru- evi- circumstantial proved direct or is, opinion, justice. a denial proof my dence, ment be inferred respectfully dissent. I therefore facts and the action if the of concerted