137 Wis. 478 | Wis. | 1909
The first three assignments of error will he considered together. They involve these subjects: (1) Did the complaint present a case of an executed conspiracy to injure by wrongfully depriving respondent of his wife’s affections? (2) Can there be such a conspiracy as between husband and wife? (3) Was there sufficient proof of such a conspiracy as to render evidence of what was said or done by one in the absence of tire other admissible against
1. No question is raised but that a conspiracy to injure respondent by depriving him of his wife’s affections and society was alleged. The infirmity claimed is that the complaint failed to state facts reasonably indicating an execution thereof. In deciding that, the pleading must be tested by the broad liberal rule of the statute that “in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed, with a view to substantial justice between the parties.” Sec. 2668, Stats.1 (1898). More and more, as time continues, the beneficent purpose of that statute is appreciated and disposition to give it the broadest scope which can reasonably be done is evinced. It is one of the most significant of the indications found throughout the Code that its builders purposed to sweep away, so far as possible, the technicalities and hindrances of common-law procedure; superseding it by a new system as near the ideal as practicable of a plain, simple, easy method of presenting controversies for judicial treatment and the solution thereof — one that would always give dignity to the substance of things, overlooking mere solvable indefiniteness and nonprejudicial imperfections. In harmony therewith it has been iterated and reiterated that “criticisms of a pleading will not support a challenge for insufficiency ... if sufficient can be discovered, reasonably, by judicial construction to sustain it.” The sole test is, “Will the language used permit of a reasonable construction which will sustain” the pleading? Emerson v. Nash, 124 Wis. 369, 380, 102 N. W. 921. Eailure to appreciate the force of this rule and the extent of the change wrought by the Code, results in waste of energy of counsel, useless expense to clients and to the public.
The complaint after stating, in appropriate language, the formation of a conspiracy to injure by depriving respondent of the affections and society of his wife, charged that the persons so wrongfully conspiring “did finally acquire, from
2. We are not familiar with the supposed rule counsel con
The common-law doctrine undisturbed by statute, that a husband and wife by themselves cannot be guilty'of a criminal offense when the gist thereof is conspiracy, is familiar. 2 Bishop, New Grim. Law, § 187; Wright, Grim. Conspiracies, 221. The basic feature thereof is that a husband and wife are but one, and that since it takes two or more persons-to form a conspiracy, the husband and wife alone are incapable thereof but are so when acting with one or more others. That principle by no means goes to the extent of exempting a wife from the consequences of criminal acts in execution of a conspiracy jointly with her husband which are of themselves subjects of criminal prosecution. The parties may be prosecuted jointly with or without any other person being charged, the conspiracy not being the gist of the offense, and both convicted. State v. Clark, 9 Houst. (Del.) 536.
The authorities relied upon by the learned counsel and which it seems moved the learned trial court to rule in counsel’s favor to the extent of holding that an action "for conspiracy will not lie against husband and wife, on the supposition that the complaint in one aspect might be treated as a pleading in an action to remedy such a wrong, are all, so far as any bearing on the question is concerned, criminal cases. There is no such a thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone. When the unlawful combination is the offense, as in criminal prosecutions, then the principle invoked by counsel applies.
In a civil action for damages for an executed conspiracy, as is very familiar, the gist of the wrong is the damage's. The combination may be of no consequence except as bearing upon rules of evidence. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; State ex rel. Durner v. Huegin, 110 Wis. 189, 255, 85 N. W. 1046; Randall v. Lonstorf, 126 Wis. 147, 105 N. W. 663. The circuit court seems to have thought it was necessary to reject from the complaint as sur-plusage the allegation to the effect that the defendants conspired together with bad intent to accomplish the wrong. Hot so, since the action, as before indicated, was not for the conspiracy but for damages on account of the consummation of the purpose of it, the two acting in concert. That would make a criminal offense before reaching the consummation as to persons not under disability, as stated in Randall v. Lonstorf, supra. The disability would not militate against capability of the two in concert to wrongfully damage the intended victim and become responsible to him therefor. The rule of evidence, as in any ordinary case of a wrongful act committed pursuant to an agreement to do it, would apply. It is sufficient, if actual damage is the result, for a remediable wrong. In that case whether one or more are concerned may be immaterial to the cause of action, but whether there was a subsidiary agreement by two or more persons to do the act
The foregoing is well supported by authority elsewhere referred to by counsel for respondent. Price v. Price, 91 Iowa, 693, 60 N. W. 202; Young v. Young, 8 Wash. 81, 35 Pac. 592. Also the following: Stanley v. Stanley, 21 Wash. 570, 68 Pac. 187. In each of these instances it was conceded, as it seems, that husband and wife, accomplishing by concert of action deprivation of another of his marital rights,, are both liable for the resulting damage.
3, 4. These branches of the case we shall not discuss at length, analyzing and showing the bearing of evidence. It is-the opinion of the court that the case is by no means so barren of evidence, either on the subject of concurrence of appellants with bad intent to rob respondent of the affections and society of his wife or that of the accomplishment of such purpose with like intent, as to warrant reversing the trial court in those regards.
We will say in passing in coming to the foregoing conclusion, we have given due consideration to the fact that what a father and mother may do in relation to their daughter continuing to reside with her husband, without inference of bad intent arising therefrom, is quite different from what a stranger may safely do as regards such an interference. True, parents may properly, to some extent, watch over the welfare of a daughter after marriage as well as before. True, they may advise her, under some circumstances, contrary to the inclination of her husband and even to the extent of advising desertion of him and may act upon the mind of' the wife successfully to that end from proper motives. Indeed, under some circumstances they might be very derelict in their duty to their daughter if they did not take that extreme course. The relations of a parent and child in their
Some complaints are made of rulings on evidence, all of
Several errors are assigned as to refusals to instruct and Imperfections in instructions given. It would unnecessarily extend -this opinion to a very great length to discuss them in detail. Therefore, we will not do so, hut rest those matters in the main by expressing our opinion that so far as requests were refused, which were applicable to the case, they were substantially covered in the general charge.
Counsel’s requests ÜSTos. 3, 5, 7, 9, 10, 14, 15, and 16 all ■appertain to the right and duty of parents to, in good faith, advise their children for such children’s welfare, not being responsible for mistakes, and, as to whether the acts done and expressions indulged in and advice given by appellants were of that character, the jury should consider the conduct of respondent as shown by the evidence and all the evidence bearing thereon. All that was said to the jury in a charge commendable for its conciseness and restraint to the legal questions involved.
A charge to the jury is not required to contain a discussion of the evidence in connection with legal propositions applicable thereto, nor to state any such proposition more than ■once, nor adopt any particular phrasing of a proposition by •counsel, nor is it advisable to state any such proposition in an argumentative way, and, of course, it is not necessary to indulge in enlarging upon the importance of a particular proposition in its moral or other aspects. To present a multitude of requests invoking a trial judge to do such things is counsel’s i*ight, but whether it is advisable may, at least, well be doubted if not criticised.
Here, the jury were told that “acts of parents” under the circumstances of this case “are presumed to be in good faith and for the purpose of promoting the child’s welfare unless the contrary is established by the evidence.” “So that to recover it is not only necessary to establish by a preponder-
Error is assigned because the court failed to instruct the jury not to consider advice or statements which may have been given or made to the wife subsequent to the separation. Uo evidence is referred to calling for such an instruction and we have not discovered any. True, counsel cites us to evidence introduced on behalf of appellants of a letter written to respondent’s counsel by his wife some over a month after she ceased living with him, to the effect that appellants were not concerned in the separation and that she would not live with respondent on any account, but how her declaration out of court long after the alleged wrongful act was done could be evidence against respondent or suggest the charge requested, especially when introduced in evidence on behalf of the adversaries, is not perceived. At all events, if the jury considered the letter, as we must assume they did, it having been received as competent evidence, they must have disbe
Complaint is made because the court charged the jury, in effect, that respondent could recover on account of the loss of' the affections and society of his child. We do not find any such instruction. The language referred to by counsel is a part of the court’s statement to the jury of respondent’s claim. Nowhere is any such element submitted to the jury. Moreover, it was plainly excluded in the instructions as to the elements of damage.
Again, error is assigned that the jury were instructed the' burden of proof was on plaintiff to "establish the facts essential to his cause of action by a preponderance or greater weight of evidence.” The point of attack is at the word “establish,” the claim being that its use made the instruction-fall short of informing the jury that it was necessary in order to entitle plaintiff to a verdict for them to be satisfied by a preponderance of the evidence of the existence of all the-facte essential thereto. The point is not well taken. True, it were better to use the term so often sanctioned by this, court, “satisfied by a preponderance of the evidence,” or what is still better, in the judgment of the writer, “satisfied to a reasonable certainty by a preponderance of the evidence.” Pelitier v. C., St. P., M. & O. R. Co. 88 Wis. 521, 529, 60 N. W. 250; Ward v. C. M. & St. P. R. Co. 102 Wis. 215, 219, 78 N. W. 442. But the use of the word “establish” was. rather putting it too strong as against respondent than otherwise. Eberhardt v. Sanger, 51 Wis. 72, 79, 8 N. W. 111; Knights of Pythias v. Steele, 107 Tenn. 1, 63 S. W. 1126. In 3 Words & Phrases, 2471, the author, citing these cases, gives as the rule thereof, and quite properly, that the word “establish,” as applied to the quantum of evidence necessary-to warrant the existence of a fact in issue, is more appropriate to a criminal than a civil case.
All matters referred to in the brief of counsel for appel-. lant, which we have not referred to in some Way, have received careful attention, it is thought, resulting in the opinion of the court that the record is free from any harmful error.
By the Court. — Judgment affirmed.