73 Colo. 144 | Colo. | 1923
delivered the opinion of the court.
The defendants’ general demurrer to the complaint was sustained. Plaintiff stood by his pleading and the court dismissed his action. Two alleged causes of action are separately stated in the complaint: The first, defendants claim, is for alienation of affection; the second, for malicious prosecution.
In the first cause, it is alleged that the plaintiff is an unmarried man, sixty-two years of age, and for many years had been living with his mother in her home in Loveland, Colorado, in the full enjoyment of each other’s society, esteem and affection; that defendants, wickedly contriving to injure plaintiff in the esteem and affection of his mother, entered into an unlawful conspiracy, whose object
It is further alleged that the plaintiff has never at any time'been insane or in the condition set forth in the affidavit, and that the defendants well knew, at the time the affidavit was made and filed, that it was false and fraudulent, nevertheless,. by the use thereof and in connection with their wiles, arguments and persuasion, succeeded in causing plaintiff’s mother to believe that he was insane and dangerous, and by continuing such wrongful acts they
The second cause of action, after alleging plaintiff’s residence in Loveland, where he was a law-abiding citizen of good reputation and enjoying the esteem and good will of its citizens, sets forth that the defendants, wickedly contriving and intending to injure the plaintiff in the esteem and good will of these citizens, and to degrade, harass, and injure him, and cause his forcible removal from Loveland and his incarceration in an institution for the confinement of the insane, unlawfully and maliciously conspired together to accomplish such objects, and, in furtherance thereof, caused to be instituted a lunacy proceeding in the county court of Larimer county to determine plaintiff’s mental condition and sanity, and prosecuted the same to a final conclusion; that in pursuance of this conspiracy, the defendant James M. Coulter, at the instigation and with the connivance of the other three defendants,' made and filed in the county court of Larimer county, a false affidavit alleging the plaintiff to be insane, substantially, and in the same language as set forth in the first cause of action which need not be repeated here.
After denying that plaintiff was ever in such condition, it is further alleged that in pursuance, and in the effort to accomplish such conspiracy, the defendants procured to be iásued out of the county court, an order directed to the sheriff of the county to take the plaintiff into custody, and, until the further order of the court, to confine him in the insane ward of the county jail of Larimer county; the order was executed by the sheriff and plaintiff was, for about the period of two days, confined and detained in the county jail pending the determination of the lunacy proceeding; that the defendants caused the county court to appoint two physicians to make inquiry into the matters
We have thus set forth the substance' of the charging parts of the complaint as the best way to determine the questions presented. Evidently the same conspiracy, and most of the acts in pursuance thereof, are alleged in both causes of action.. The damage, if any, which the plaintiff has suffered was caused by the acts done in furtherance of the alleged conspiracy. It is neither important nor necessary for a plaintiff specifically to characterize the nature of his action. If he sets forth facts which entitle him to relief, it should be awarded to him irrespective of the technical name of the action which he has instituted. In Pullen v. Headberg, 53 Colo. 502, 127 Pac. 954, this Court said that in a criminal prosecution for a conspiracy, the gist of the action is the conspiracy, but in civil cases, where the injured party asks damages as the result of the conspiracy, the gist of the action is the damages resulting from it, and not the conspiracy. The court further said that unless a civil action would lie against one of the conspirators, if the act was done by him alone, it will not lie against many, acting in concert. The defendants say that there is an exception to this general rule, but as it is not material here, we do not consider it. Fairly considered, we think the first cause of action is not for damages that the
No authority has been brought to our attention that an action for alienation of affection exists, except as growing out of, or connected with, the marriage relation. In Hamilton v. McNeill, 150 Iowa, 470, 129 N. W. 480, Ann. Cas. 1912D, 604, it is said that such “cause of action is one which could arise only out of and by virtue of the marriage relation.’’ It has also been said that the gist of an action for alienation of affections is the loss of the consortium, that is, the loss of conjugal fellowship, society, cooperation and aid of husband and wife, and that the alienation of affection is merely a matter of aggravation in such an action. Dodge v. Rush, 28 App. D. C. 149, 8 Ann.
The objection below and here to the second cause of action is, since it is one for malicious prosecution, there must be an allegation, inter alia, that the suit maliciously prosecuted terminated favorably to the plaintiff, hence the demurrer should be sustained because there is no such allegation. There are two sufficient answers to this contention. The first is, that, assuming the suit to be one for malicious prosecution, while there may be no direct allegation, either one way or the other, of its termination, yet, in legal effect, the complaint shows that the lunacy proceeding was finally disposed of by a judgment in favor of the plaintiff. It is true that plaintiff alleges that, as the result of the lunacy proceeding, he was committed to, and confined in, the State Hospital for the Insane for a period of about nine months. His pleading also alleges that subsequent to his parole by the superintendent of the hospital, he, through an attorney of his own selection, caused this same proceeding, in the same court, to be re-opened or further conducted, with the result that he was therein exonerated by a jury of the charges contained in this affidavit, that the jury returned a verdict declaring him not insane, and, upon the verdict, the county court issued an order discharging him from all matters alleged against him in defendants’ affidavit. The defendants contend that such subsequent proceedings are entirely void and of no
The other answer is that the present action is not one for malicious prosecution, but for malicious and wrongful abuse of process in instituting these lunacy proceedings upon a false affidavit and for an atrocious purpose. In a suit for abuse of process, it is not necessary to allege or prove the termination of the suit or proceeding. Grainger v. Hill. 33 E. C. L. Rep. 675; Boogher v. Hough, 99 Mo. 183, 12 S. W. 524; Sneeden v. Harris, 109 N. C. 349, 13 S. E. 920, 14 L. R. A. 389; Prough v. Entriken, 11 Pa. 81; Haldeman v. Martin, 10 Pa. 369, 372; Davenport v. Lynch, 51 N. C. 545; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846, 20 Am. St. Rep. 26; Wildee v. McKee, 111 Pa. 335, 2 Atl. 108, 58 Am. Rep. 271; Antcliff v. June, 81 Mich. 477, 45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533.
We are not advised by plaintiff’s counsel why he inserted in his complaint the two causes of action based upon the
The judgment, insofar as it sustained the demurrer to the first cause of action is affirmed, and reversed as to the ruling sustaining the demurrer to the second, and the cause is remanded with instructions to the district court that further proceedings, if any, be in accordance with the foregoing views, with leave to plaintiff to amend his complaint as he may be advised.