Hansen v. Nicoll, 40 App. D.C. 228

Hansen v. Nicoll

40 App. D.C. 228 | D.C. Cir. | 1913

Mr. Justice Robb

delivered the opinion of the Court:

The court having directed a verdict upon appellant’s evidence and statement of evidence, we must consider the case as upon demurrer; that is, in a light most favorable to appellant. That such an action may be maintained is well settled by numerous decisions. But it is equally well settled that the gist of such an action is the damage done, and not the conspiracy. In Verplanck v. Van Buren, 76 N. Y. 247, 259, it was held that, in an action on the case for conspiracy and for acts in the nature of a conspiracy, the damage is the cause of action, the conspiracy being mere matter of aggravation. It was further held that where parties, in pursuance of a combination or conspiracy, fraudulently make use of legal proceedings to injure another, an action lies against them by the person injured to recover the damages sustained. In Van Horn v. Van Horn, 56 N. J. L. 318, 28 Atl. 669, an action on the case for conspiracy to injure the plaintiff in her business through false and malicious statements concerning plaintiff’s business and character, the court carefully reviewed the authorities and reached the conclusion that the damage resulting from the malicious acts is the foundation and support of such an action; that, such being the foundation of the action, one of several defendants may be found guilty and the others not guilty; and this notwithstanding that no conspiracy is proven. In support of their conclusion the court cited Parker v. Huntington, 2 Gray, 124, where the action was against two for maliciously conspiring to have the plaintiff indicted, and where the court observed that the charge of conspiracy was never deemed essential, it being mere surplusage, and hence that there might be a recovery against one or both. The court also cited Wellington v. Small, 3 Cush. 145, 50 Am. Dec. 119, *237which was an action on the case for conspiracy, and in which the court found that the gist of the action is not the conspiracy, but the damage done to the plaintiff. Many other cases were cited, but it is unnecessary to review them here.

The first specific act of which appellant complains was the publication in various newspapers of statements by Mr. Wálsh to the effect that appellant was a blackmailer. Since the action abated as to Mr. Walsh, and there is no evidence from which the jury would be justified in finding that either of the appellees was in any way responsible for such publications, it is apparent, we think, that this item of alleged damage must be eliminated from further consideration. The second specific act complained of was the inducing of Miss Watson to leave the jurisdiction of the supreme court of the State of New York for the purpose of depriving appellant of her testimony in the three equity suits which he had brought against Mr. Walsh and her. In the first place, when these suits were brought appellant had no enforceable contract with Miss Watson, as the appellate division of the supreme court of the State found and as the evidence before us clearly shows. . There was therefore no legal basis for these equitable actions, and the testimony of Miss Watson could not have been of any assistance to appellant. There are other inconsistencies in appellant’s position. When lie moved the court, in the original actions, for an extension of time in which to file verified complaints, he represented to the court that he was still counsel for Miss Watson in the actions, and, of course, authorized to act for her. Notwithstanding this, he discontinued those actions and thereupon brought the equitable actions against her and Mr. Walsh, upon the theory, of course, that she had settled the claims upon which the original actions were based. Since these equitable actions were brought after Miss Watson became of full age, and after she had made said settlement, it is difficult to perceive how any subsequent attempted ratification of her original contract with appellant could have affected the situation. Moreover, while it is alleged that the inducing of Miss Watson to leave the jurisdiction prevented appellant from establishing, by her tes*238timony, “certain essential and material facts,” we are left entirely in the dark as to what those facts were. In other words, this averment is a mere conclusion of the pleader. Assuming that she would have testified to a settlement of her claims against Mr. Walsh, the attorneys through whom such settlement is alleged to have been made were available as witnesses. Appellant, of course, knew when, if at all, she ratified her contract with him, and yet he did not testify, but suffered a judgment to be entered against him by default. To have recovered in those actions it would have been necessary for him to show the existence of an attorney’s contract, and a settlement in disregard of his lien growing out of that contract. As above suggested, if an attorney’s contract existed, his own testimony should have been sufficient to establish prima facie that fact, and, if a settlement had been made, that should have been easily proven without the testimony of Miss Watson. Upon the facts before us, therefore, we cannot say that appellant was damaged by the failure of Miss Watson to testify in these equitable actions.

The third and last item of damage relates to the disbarment proceeding. This item is easily disposed of. It does not appear that Miss Watson would have given any testimony favorable to appellant had she been a witness before the referee; and, as previously pointed out, while she was within the jurisdiction, appellant waived his right to take her testimony. Assuming that the evidence submitted and offered would warrant the inference that there was concerted action to keep this young woman out of the jurisdiction of the courts of New York, we agree with the trial court that it does not appear that any .actionable damage resulted to appellant therefrom. Judging from the frequency of the alleged settlements with her and the great notoriety engendered by her presence in New York, it is perhaps not strange that efforts were made tending to her effaeement.

Judgment affirmed with costs. Affirmed.