Randall v. Lonstorf

Nov 14, 1905
Versions:105 N.W. 663
126 Wis. 147
1905 Wisc. LEXIS 238
WiNsnow, J.

While the right of the general guardian to maintain this action in his own name was not challenged in the tria] court, the query was raised in this court whether the cause of action, if any, was not one in favor of the ward alone, which must be prosecuted by her and not by the guardian. Whatever might be the conclusion were the question a new one, it is foreclosed by the decision in the case of Plath v. Braunsdorff, 40 Wis. 107, where the exact question was raised, and it was held that the objection went only to the competency of the guardian to maintain the action, and, being in abatement only, was unavailable to the defendant after having pleaded in bar.

Proceeding to the merits, we note at the outset that both parties argued the case upon the assumption that, in order to sustain the complaint, it would or might be necessary to overrule the decision in the case of Lonstorf v. Lonstorf, 118 Wis. 159, 95 N. W. 961; and we were strenuously urged upon the one side to reconsider and overrule the ruling in that case,, and upon the other as strenuously to adhere to it. We do not find it necessary, howevei’, to reconsider that decision. That was an action brought by the deserted wife against her mother-*151in-law alone for the alienation of the affections of the husband and her consequent loss of consortium and support, and it was held, following the decision in Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, that such an action could not be maintained. That ruling, however, by no means necessarily or inferentially decides this case. The present action is brought to recover damages resulting from an alleged unlawful conspiracy between a number of people, and presents an entirely different question. An actionable conspiracy, as recently defined by this court, is “a combination of two or more persons for the purpose of accomplishing a criminal or unlawful object by criminal or unlawful means, or a lawful object by criminal or unlawful means.” State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. In a criminal prosecution the gist of the offense is the conspiracy itself. In a civil action the gist of the action is the damage suffered by reason of the conspiracy. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840.

It was argued by the respondent that, inasmuch as this court had held that no action could be maintained by the wife against a single person for the malicious alienation of the husband’s affections, no action could be maintained against a number of persons for the same act done by them in concert, and it was said that the court had laid down that principle in the Martens Case, just cited. While the language of the syllabus in the last-named case may perhaps furnish some ground for this contention, examination of the opinion itself shows that no such broad rule was laid down. Upon page 472 of 109 Wis. (84 N. W. 843), the principle decided is thus stated:

“An act legal in itself, in that it does not offend against the criminal law and the injuries are damnum absque injuria, regardless of its violation of moral standards, whether such act be the one perpetrated or the means used to that end, generally, if not the subject of a civil action for damages if done by one person, is not if done by many acting in concert.”

*152It will be readily seen that under this rule, in order that the concerted act of many should create no civil liability because the same act by one creates none, the act must be one which does not offend against the criminal law, but only violates moral standards. Whatever may be the holdings in other jurisdictions, this is the extent of the rule as adopted in this state, as is clearly shown by the discussion and conclusions reached in the Huegen Case, supra, where the doctrine of the English case of Huttley v. Simmons (1898) 1 Q. B. Div. 181, was rejected. So the question is not whether one person may alienate the husband’s affections without liability to the wife, but whether the conspiracy of many to do that same thing is a violation of the criminal law, and, if so, whether damage has resulted by reason of the conspiracy.

Turning’ to the statute upon the subject of conspiracies, which was under consideration in the Huegin Case, namely, Stats. 1898, sec. 4466a, we find that it is thereby made a criminal offense for any two or more persons to combine or agree together “for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession .by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act.” The first part of this section evidently was intended to cover conspiracies against another in his trade or business, but the second part just as evidently was intended to cover another and broader field, namely, conspiracies maliciously intended to coerce and constrain the action of another by compelling him to do that which is against his will, or to refrain from doing any lawful act which he desires to do. That the allegations of this conrplaint bring the conspiracy within this latter clause, and thus make it criminal, we can entertain no doubt. By these allegations it appears that the defendants maliciously conspired together to prevent the plaintiff from performing her marital duties, from living with *153ber husband, from receiving at bis bands tbat support to which she was entitled, from obtaining a divorce in ber home jurisdiction which should fully protect her rights, and, by reducing her to penury, compel her to- allow her husband to obtain a divorce upon false and fraudulent allegations in a foreign jurisdiction. All these were unlawful constraints upon the plaintiff’s actions and will, which the law condemns. There can be no doubt, therefore, that the conspiracy charged was a criminal conspiracy within the statute.. Whether it would not be criminal at common law, in the absence of a statute, we need not consider.

So all the essentials to a civil action for conspiracy are alleged. The object sought, namely, the breaching of the marriage contract and the desertion of the wife by the husband, leaving her in destitution, was an unlawful object, within the meaning of the word “unlawful” as defined in the Martens Case. Under our statute (Stats. 1898, sec.'4581c) it was also a criminal object. The means employed were unlawful and criminal, within the terms of sec. 4466a of the same Statutes. It is sufficiently alleged that damage followed. There was, then, the unlawful and criminal object, the unlawful and criminal means, and the resulting damage; and it follows that a civil action lies, although there may be no redress for the same injuries inflicted by a single person. If the law could not reach and redress such wrongs as are here charged it would be impotent indeed. No such reproach can be cast upon it. It will not allow conspirators against the marriage bond and the happiness of the family to go “unwhipt of justice” any more than it will allow conspirators against a business or a profession to escape.

By the Court. — Order reversed, and action remanded with directions to overrule the demurrer to the complaint.