114 Wis. 460 | Wis. | 1902
Counsel for appellants assign six grounds for a reversal of the judgment, each of which has received consideration. We will take them up in the order in which they appear in counsel’s printed argument, stating them in the form of propositions the affirmative of which counsel maintain, and discuss such of the claims under each head as appear to have sufficient merit to require it.
1. Did the trial court err in not directing a verdict for •defendants as requested ? That is submitted under subheads as follows:
(a) “There is an absolute failure of evidence to establish a conspiracy.” The act of combining together, by two or more persons, essential to an actionable conspiracy, is not usually, if at all, established by direct evidence. If that were necessary in order to punish such wrongdoing, judicial remedies to that'end would be exceedingly inefficient. There is a high degree of moral turpitude involved in the deliberation and calculation by guilty parties as to purposes and means, •characterizing unlawful combinations to injure, which instinctively inspires secrecy. Therefore, existence of the element of combination is, peculiarly, a matter for proof by circumstantial evidence. Such evidence was respondent’s sole reliance in this case. Here are the circumstances disclosed, mentioning evidentiary facts as established which direct evidence tends to establish. Obviously we must SO’ view the record in determining whether the court erred in submitting the issues involved to the jury.
Plaintiff was married quite early in life to Christian-Roberts^ a druggist who kept a store at Kewaunee, Wisconsin. He owned the lot where the business was carried on. It was-his homestead. He and his wife lived over the store till he-died in 1891. He left all his property to her. She had lived over the store, in all, some fifteen years, and had aided in carrying on the drug business. Defendant Henry Westen-haver purchased the drug business-, hut not the store building, in 1895, placing HuTbert in immediate charge thereof, who, with the aid of plaintiff, conducted the same for several weeks thereafter. At the end of that time.the Westenhavers moved to Kewaunee and Henry Westenhaver took charge of the drug.
She returned to Kewaunee as free as she went away on the excursion to see Winkler. She was met at the train by the Wesienhavers and induced by them to go to their home to spend the night. They knew of the purpose of her trip to Milwaukee and of the result of it. All the parties to the action spent the night after her return at the Westenhaver home. After the Wesienhavers had retired for the night, 'Hulberi and plaintiff talked over the Milwaukee excursion. He expressed pleasure that the trip had turned out a failure, as he wanted her for his wife. Before they parted for the night they exchanged pledges to enter the marriage state with each other. The next day or thereabouts he secured an interview with her, apparently for the purpose of suggesting, as he in fact did, that she should, in view of their prospective marriage, give him a share of her property. Soon thereafter all the parties to the action met at the Westenhaver home. The Wesienhavers then made known to plaintiff that they were fully informed of her approaching union with Hulberi, and they suggested that in view thereof she should help him by transferring to him some of her property. About a week thereafter he again importuned her to give him part of her property, suggesting $1,500 as a satisfactory amount. She assented, with the express understanding that the property would be enjoyed by the two together as husband and wife. Some time before the engagement he obtained an option to purchase the store lot for $3,500, inducing her to give him such option by saying that he wanted to prevent another person, who desired to obtain the property, from buying it, because such an event might interfere with the drug-store business. He agreed in the written option to pay plaintiff $50 for the privilege to buy, but he in fact did not pay her anything, though he held the option till the property was conveyed to him in April, 1896. About the time the option was
April S, 1896, Hulbert procured the following papers to be prepared for-execution: A deed conveying the store lot to him for the expressed consideration of $3,500; a note for $1,700 and a mortgage upon the property to secure the same-; a note for $1,500. He took the papers to the drug store, where, in the presence of Westenhaver, they were executed and properly delivered, he paying in cash the balance of the consideration for the property required, with his two notes, to make $3,500. After, the securities were so executed and delivered, she bestowed upon Hulbert the $1,500 note, West-enhaver expressing his approval thereof and suggesting that she should destroy the note, which she did by tearing it in pieces, which he and Hulbert burned.
A few days after the engagement between plaintiff and Hulbert, he purchased for her a marriage engagement ring and himself placed the same on her finger. Eor several months thereafter the relations between the two, to all outside appearances and so far as plaintiff could discover, were in harmony with a consummation of her matrimonial hopes. They spent much of their time in each other’s company. August 7,1896, when plaintiff was preparing to leave Kewau-nee for some time and had it in mind to place her mortgage on record, Hulbert suggested to her that a public record of the mortgage would not look well, since they were to.be man and wife, and that she had better turn the papers over to him; that he was a man of honor and would give her money whenever she wanted it. She complied with his request. She had received, before that, a similar suggestion from Westenhaver.
Shortly thereafter the attitude of all the defendants toward plaintiff changed. The Westenhavers ceased to show the customary regard for her, and IlulbeH made excuses for not making her his wife. He notified her that he could not do so because of objections raised by his relatives. Plaintiff did not give up hope of yet being his wife, though she renewed her negotiations with Winkler with a view to marrying him and was encouraged by IlulbeH to do so, he cultivating a belief in her mind that in case of such an event he would be a member of the Winkler family as her son, and that if she should not form a union with Winkler he might yet take her for his wife. The idea of marriage between plaintiff and Winkler was finally abandoned. IlulbeH did not show any disposition thereafter to take plaintiff for his wife, but urged her to marry Patnode, and she took his advice. At this time she had no home and no property to speak of. Up to the time negotiations with Winkler were broken off, she continued to make protestations ' of love and affection for IlulbeH, and he continued to receive the same as proper. The Westenhavers were fully informed of all this, and gave no indication to' plaintiff of disapproval thereof.
Notwithstanding Hulberfs repudiation of his engagement to marry plaintiff, and the impossibility of her desire for association with him being satisfied, by reason of her marriage to Patnode, he refused to return to her any part of the property he received from her. After her union with Pat-riode she called upon him for the $1,700 note or the money it represented. His ieply was that he would have to consult Westenhaver about it. All'parties met at the Westenhaver home, on which occasion Mrs. Westenhaver approached plaintiff with something like her former show of affection, and pleaded with plaintiff not to make Hulbert any trouble about the property matter. At the same time Westenhaver
Summarizing somewhat, — while the engagement existed between plaintiff and Hulbert, the Westenhavers treated her as a prospective relative; thereafter their attitude changed to one of coldness; later, when there was danger of demands being made upon Hulbert to restore the property, they held out to her, as an inducement to not make him trouble, that they would befriend her if property matters caused her any trouble with Patnode. In other ways they sought to influence her not to try to obtain restoration of the property. They were fully informed of her infatuation with Hulbert, of her disposition to bestow her property upon him, of her expectation that he would make her his wife, of her subsequent expectation that she could enjoy his company as a son'while she was the wife of another. During all the time, their attitude toward her was that of approval and suggestion in the line of her desires. It changed only when they were confronted with the danger that Hulbert might be disturbed in the enjoyment of the property he obtained of her.
Enough has been said to show the general features of the case, on the subject of whether there was a conspiracy, as the trial court could reasonably have considered the jury might view the evidence. Many of the matters stated appear by the record beyond dispute. There is evidence therein tending to establish .the rest. Row if we were called upon, in order to sustain the ruling of the trial court in submitting the cause to -the jury on the subject under discussion, to decide that any express agreement between appellants to defraud respondent is indicated with sufficient clearness to any more than arouse a strong suspicion in that regard, something short of evidencing the existence of a corrupt agreement as within reasonable probabilities, it is not clear but that we would
A different view from the foregoing might be taken from the evidence. By this we mean that the inferences from the-evidence are not all one way, yet we venture to say that in the history of jurisprudence persons have been convicted and’ executed as being guilty participants in a criminal conspiracy on weaker evidence. True, assuming that the relations between respondent and Hulbert were what she claims, her negotiations with Winkler, both before and after her engagement with Hulbert, are hard to understand. They indicate that her mind was unbalanced to the point or beyond that of
(b) ‘The $1,500 note had no value. It was a mere blind to veil the real transaction, which was a gift of the realty to Hulbert. Further, if it was ever in the possession of respondent as a thing of value, it was thereafter bestowed upon Hulbert as a gift.’ Those suggestions of appellant’s counsel do not seem to possess sufficient merit to warrant any extended discussion. There is ample evidence that respondent’s purpose, when she transferred the real estate to Hulbert, was to give him $1,500, not a specific part of the realty as such; that, in order to effect such purpose, she took from him the note, not as a mere valueless piece of paper, but as a security of the value of $1,500, and then delivered the same to him as a gift for that amount, and in view of her expectation to become his wife, the understanding between the two being that the
(c) ‘The engagement, if there were one, was mutually abandoned.’ Counsel contend for that because after respondent claims the engagement was broken, she followed Iiul-bert’s advice by marrying Patnode, and expressed satisfaction, under the circumstances, with having thus gained a protector whom she respected and a home which she stood sorely in need of. We are unable to see in that any abandon
(d) At this point counsel reassert that there is no evidence of any conspiracy. That subject has been fully treated in what has already been said.
(e) ‘Respondent having sought to recover the amount of the $1,100 note by an action on contract, she ratified the transaction whereby she -conveyed her property to Hulbert,. precluding her from changing her position and maintaining an action so-unding in tort for damages for a conspiracy.’ In submitting that proposition, counsel seem to have misconceived the nature of this action. The gist thereof is the
Applying what has been said to this cause, in any view we may take of the $1,100 note, the prosecution of the action against Hulbert for that did not interfere with the prosecution against all the defendants for damages for the conspiracy. All the defendants might be found guilty in the latter action for damages, including the $1,700 note,' and Hulbert be found liable in an action on the note, in which case one satisfaction covering such element would eliminate it from both actions.
2; Did the court err in respect to the form and contents •of the special verdict ? That must be answered in the affirma
“Did the defendants Harvey Hulbert, Henry Westenhaver, and Ally Westenhaver, his wife, fraudulently and unlawfully*481 combine and conspire together to cheat and defraud plaintiff out of her property by a scheme substantially as follows, to wit: That said Hulbert should court and make love to plaintiff and lead her to believe that he was intent on marrying her; that he should become engaged to marry her; that by means of the influence and control which the marriage engage-' ment would enable said Hulbert to acquire over plaintiff, he should induce her to transfer her property to him without any, or for an inadequate or nominal, consideration; that lie should then break the engagement and refuse to marry plaintiff; and that, if she should then seek to recover back her property, the defendants should charge plaintiff with un-chastity and threaten to expose and disgrace her, and thereby frighten and prevent her from making any attempt to regain her property from said HulbertV’
By stating all the details set out in the complaint as to the manner the alleged fraudulent scheme was to be carried out, the court suggested the existence of evidence as to each of them. There was none whatever respecting any agreement to charge plaintiff with unchastity and to threaten to expose and disgrace her and to thereby prevent her from endeavoring to recover her property from Hulbert; yet, by the answer to the question, the jury found that there was. That indicates, clearly, that they were either misled by the question, or that they were perverse; which of the two we are unable to say. The conspiracy to rob plaintiff may have been formed and some one of the details alleged to have been agreed upon not have been included in the understanding, and not have been essential to plaintiff’s right to recover. All the alleged details having been made a part of the question, while as to one, a matter of considerable significance bearing on the real point in issue, there was no evidence, it did not admit of a direct answer for or against the appellants. It admitted only of an answer in their favor. The answer the other way, as before indicated, showed that the jury did not understand the question at all or that they purposed to find for respondent
Much ground might be covered in analyzing tbe verdict question by question and showing tbe useless and prejudicial features thereof, but we forego doing that because it has been covered in principle in tbe cases cited, particularly in Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. Tbe court has often criticised special verdicts, severely, for faults in matters of form where no reversible error was found, hoping to secure a better administration of tbe special verdict statute. It is feared that tbe frequency with, which judgments have been •affirmed notwithstanding defects of form in special verdicts, it being suggested that trial courts have a wide discretion as regards the questions to be submitted for such a verdict, has led to the belief, to some extent at least, that there can be no prejudicial error in such matters. If such be the fact,, there can be no better opportunity to correct it than in this case, with twenty questions for a verdict, consisting of nearly a thousand words, only five at the most being needed, which might be clearly expressed in seventy-five to a hundred words. A special verdict may be framed with so many needless questions covering undisputed matters and matters of mere evidence, and questions covering the same facts in different forms, as to obscure -the few facts in issue, — turning a statute, intended to be a valuable aid in arriving at the truth as regards the rights of parties, so as to have the very opposite effect. It is considered that we have a striking example of such contrary effect in this case. The purpose of a special verdict is not, as seems to be supposed by some, to enable parties to cross-question the jury and make disclosures as to their mental operations in reaching conclusions upon the turning facts in a case, or to test the intelligence of the jury by an exhibition as to whether they so fully comprehend the case as to be able to find their way through a labyrinth of questions by a consistent line. Instead of framing a special verdict so as
3. Did the court err in its instructions to the jury? Counsel for appellants complain of this language used in regard to the question submitted, intended to cover the issue as to the formation of a conspiracy, to which we have referred at some length:
“It is not enough for the plaintiff to show that the conspiracy alleged in her complaint was formed and existed and that in-the execution of it she was defrauded out of her property, if that was the fact. . . . The plaintiff cannot succeed in this action unless she proves to your satisfaction by a clear preponderance of the evidence that the $1,500 note was obtained from her by Hulbert through a conspiracy and in the execution of it; and unless she makes that proof in that degree you must answer that question ‘No;’ but if she does, your answer to it should be ‘Yes.’ ”
In that the court seems to have industriously informed the jury not only how to answer the particular question the instruction was directed to, but the one which preceded it, in order to enable the plaintiff to recover. That method of instructing a jury, in taking a special verdict, is so clearly destructive of the rights of parties to' the benefits of the special verdict statute, as to have come to be regarded as prejudicial error almost as a matter of course. New Home S. M. Co. v. Simon, 104 Wis. 120, 80 N. W. 71; Sheppard v. Rosenkrans, 109 Wis. 58, 85 N. W. 199; Musbach v. Wis. Chair Co. 108 Wis. 57, 84 N. W. 36.
Some matters are presented by appellants’ counsel for consideration, to which we have not referred specially if at all; but since they are either not prejudicial to appellants, or be
By the Gourt. — The judgment is reversed and the cause remanded for a new trial.
(speaking independently). There is one matter presented for consideration in the brief of appellants’ counsel, not mentioned in the opinion of the court, which seems to me ought not to be passed over without some expression of judicial views in respect to it, even though they do not go on record with the indorsement of the court. Want of indorsement does not always mean absence of concurrence in what is said on a subject as much as want of harmony respecting the necessity for treating it. In this connection we should say, to avoid misapprehension, that the instruction hereafter mentioned is deemed by my brethren to be a reasonably clear statement of the law in language which, in sub- . stance, has received the approval of this court. In such a situation, probably silence, as a general thing, is not inconsistent with a full discharge of judicial duty; though it is thought that individual expression of views on such occasions is often beneficial. With this apology, so to speak, — justification, perhaps, is the better term for the occasion, — I will speak briefly of the omitted matter to which I have referred.
Appellants’ counsel complain of this instruction given to the jury:
“If you are satisfied that any witness who testified on either side of this case knowingly and intentionally testified falsely in regard to any fact which is material to the case, then although you are not bound to disbelieve all the testimony given by that witness, you are at liberty to do so, excepting in so far as such testimony is corroborated by other credible evidence or by facts and circumstances in proof.”