| Mo. | Mar 15, 1854
delivered the opinion of the court.
The petition in this case charges the defendants, who are officers of various insurance companies in St. Louis, with having combined, confederated and conspired wilfully and maliciously to injure and wholly ruin the plaintiff in his trade and occupation as commander of a steamboat, and having for that
The present action, then, is founded upon the idea that the defendants are responsible for an injury sustained by the plaintiff in his occupation, because they conspired to effect that injury, although the means employed were not, in themselves, illegal or immoral.
A writ of conspiracy, properly so called, did not lie at the common law in any case but where the conspiracy was to indict the plaintiff of treason or felony, and a verdict had been rendered in his favor. 1 Saund. 230, note 4. Jones v. Baker, 7 Cowen, 449. This remedy required that two persons, at least, should be charged, and the judgment must be rendered against two, upon the ground that the conspiracy being the basis of the proceeding, it was necessary to the establishment of the conspiracy that two should be convicted.
The writ of conspiracy has given place to the action on the case, in the nature of a writ of conspiracy, and this action may be sustained against one alone. Skinner v. Gunton, 1 Saund. 228. Laville v. Roberts, 1 Ld. Raym. 378-9. Jones v. Baker, 7 Cowen, 445. Hutchins v. Hutchins, 7 Hill, 107. Kirtley v. Deck, 2 Munf. 22.
In a criminal prosecution for a conspiracy, the conspiracy is the criminal act for which the defendant is to be punished, and the indictment will lie although no act has been done in
In a civil action on the case for a conspiracy, tbe gist of tbe action is the damage which tbe plaintiff has sustained by tbe acts of tbe defendants, and tbe allegation of a conspiracy need not be proved. 1 Saund. 230, note 4. Laville v. Roberts, 1 Ld. Raym. 378. Sheple & Warner v. Page, 12 Verm. Rep. 533. In Hutchins v. Hutchins, 7 Hill, 107, it is said: “ Tbe conspiracy or combination is nothing, so far as sustaining tbe action goes ; tbe foundation of it being the actual damage done to tbe party.” It is upon this ground only that those cases rest, which allow a recovery against one defendant when tbe others are acquitted.
As it is tbe settled law that, in an action on tbe case in tbe nature of a writ of conspiracy, tbe plaintiff may have judgment against one defendant, although be may have no cause of action against the others, we are assisted in determining tbe character of the case which will support such action ; and tbe conclusion would seem to be unavoidable, that the action can only be sustained' against several, where tbe acts complained of would sustain an action against one of the defendants ; in other words, that the number of the defendants sued, and the allegation that they conspired together, do not authorize tbe plaintiff to maintain his action, when be could not maintain it against one defendant, if sued alone. In Wellington v. Small et al., 3 Cushing, 149, it is said by tbe Supreme Court of Massachusetts, “As to tbe first of these averments, (that there was a conspiracy,) it may be remarked that, if an act is done by one alone, which is no cause of action, a like act is not rendered actionable by being done in pursuance of a conspiracy. In an action on tbe case in tbe nature of a conspi
In the present case, it is alleged that the object of the conspiracy was to injure the plaintiff in his business. I lay out of view the expletives in the petition of “impoverishing and ruining the plaintiff,” for the degree of injury designed and effected has nothing to do with the question, whether the petition states a cause of action. It is also alleged that the defendants, in the acts which were designed to effect their object, were influenced by malice toward the plaintiff. The important allegation in determining whether this action will lie, is that which states the acts of the defendants, which were intended to effect their object. The act charged is, that they refused to take insurance upon the plaintiff’s boat.
Now it is believed to be beyond controversy that each of the defendants might have declined to take any insurance on the plaintiff’s boat, and that, too, from hatred and malice towards the plaintiff, and such individual woilld not have been liable to an action for such refusal. Nor is it supposed to be less clear that the whole of the defendants might, without combination with each other, have refused the insurance, and none of them would have been subject to an action. If, then, the action can be maintained, it must be on the ground that the defendants have agreed, among themselves, that each would take no insurance on-the plaintiff’s boat, and thereby he was injured. If this fact will sustain the action, it must be because the conspiracy itself is an important part of the cause of action. Yet it is clear, from authority, that the conspiracy need not be proved, and that it is not the ground of the action.
It is argued here that the conspiracy of the defendants was to injure the plaintiff in his lawful business, and although such injury was effected by conduct not in itself illegal, yet the defendants are responsible for an injury done to the plaintiff by
It appears by an examination of the cases that, to render the parties to a conspiracy liable to a civil action, the acts which they agree to do must be unlawful. In Mott v. Danforth, 6 Watts, 306, it is said, that an action on the case lies wherever the plaintiff is aggrieved and damnified by unlawful acts done by the defendants, in pursuance of a combination and conspiracy for that purpose. In Jones v. Baker, it is said: “ The plaintiff showed damage, and if it resulted from the wrongful acts of the defendants, or either of them, he was entitled to recover.” In Adams et al., v. Paige et al., 7 Pick. 550, it is said : “ It is not necessary, to maintain an action on the case, that there should be any moral turpitude in the act complained of. It lies wherever a damage is occasioned by a wrong done.” In Gregory v. The Duke of Brunswick, 47 Eng. Com. L. R. 281, Carr. & Kir. 30, Chief Justice Tindall held that, although persons attending the theatre had a right to express their free and unbiased opinions on the merits of actors, yet they had no right to go there upon a preconcerted plan to málce such a noise that a particular actor, without regard to the merits of his performance, should be driven from the stage, and that, for damages resulting to plaintiff, from such acts, the defendants were liable in an action on
There are dicta in some of the cases to the effect that a civil action may be maintained for damages resulting from a conspiracy, where no act has been done in pursuance of the agreement. In Patten et al., v. Gurney et al., 17 Mass. 186, the Chief Justice, in delivering the opinion of the court, says : “ If the fraud is actually committed, it is not necessary to allege a conspiracy, which is, of itself, a criminal act, and may be indicted or sued for, although the act intended to be done is left unexecuted, provided any damage happen in consequence of the conspiracy.” In Haldeman v. Martin, 10 Barr, 372, the Chief Justice says: “A conspiracy to do an illegal thing is actionable, if injury proceed from it.” Now it is not consistent with the authorities, that an action can be maintained for a conspiracy, without any act to carry out its object, and it is not readily perceived that damage could result to a plaintiff from a mere agreement of defendants to do certain acts which they never attempted.
In the present case, the act charged upon the defendants, as having been done by preconcert, was an act which each and every one of the defendants had a right to do, and was no violation of any right which the plaintiff could claim under the law. He had no right in law to demand insurance upon his boat from one or all of the'"defendants, nor that they should insure cargo upon his boat, and, consequently, their refusal to insure, from any motive, however improper, could give him no right to sue them. The moment it is established that the conspiracy is not a substantial ground of action, it follows that no action can bo brought to recover damages for the joint act of several, unless the act itself is illegal.
This is a case in which the plaintiff alleges that he has suf
The judgment ou the demurrer is affirmed.