Cook v. Robinson

• Court: Georgia Supreme Court
• Writing for the Court: QUILLIAN
• Citation: Cook v. Robinson, 116 S.E.2d 742, 216 Ga. 328 (Ga. 1960)
• Decision Date: 06 October 1960
• Docket Number: Nos. 20953,20954,s. 20953
• Parties: Obie L. COOK v. Robert H. ROBINSON et al. OBLE L. COOK PRINTING EQUIPMENT COMPANY v. Robert H. ROBINSON et al.

Page 742

116 S.E.2d 742

216 Ga. 328

Obie L. COOK v. Robert H. ROBINSON et al.

OBLE L. COOK PRINTING EQUIPMENT COMPANY v. Robert H. ROBINSON et al.

Nos. 20953, 20954.

Supreme Court of Georgia.

Oct. 6, 1960.

Noah J. Stone, Atlanta, for plaintiffs in error.

No. 20953:

Wilson, Branch & Barwick, J. Frank Ogletree, Jr., M. Cook Barwick, Howard & Storey (James C. Howard, Jr., & Robert W. Storey) Fryer & Harp, Noah J. Stone, Casper Rich, Atlanta, for defendant in error.

No. 20954:

Wilson, Branch & Barwick, J. Frank Ogletree, Jr., Howard & Storey (James C. Howard, Jr., & Robert W. Storey) Fryer & Harp, Casper Rich, Noah J. Stone, Atlanta, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Justice.

1. 'A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where civil liability for a conspiracy is sought to be imposed the conspiracy itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. Mills v. Moseley, 50 Ga.App. 536, 538(2), 179 S.E. 159. Thus, where the act of conspiring is itself legal, the means or method of its accomplishment must be illegal.' Vandhitch v. Alverson, 52 Ga.App. 308, 310(1), 183 S.E. 105, 106; Clein v. City of Atlanta, 164 Ga. 529, 534, 139 S.E. 46, 53 A.L.R. 933; Foster v. Sikes, 202 Ga. 122, 42 S.E.2d 441; Nat. Bank of Savannah v. Evans, 149 Ga. 67, 99 S.E. 123; Lambert v. Georgia Power Co., 181 Ga. 624, 628, 183 S.E. 814; Johnson v. Ellington, 196 Ga. 846, 847, 28 S.E.2d 114; Luke v. Dupree, 158 Ga. 590, 597, 124 S.E. 13.

2. While the conspiracy is not the gravamen of the charge, it may be pleaded and proved as aggravating the wrong of which the plaintiff complains, enabling him to recover in one action against all defendants as joint tort-feasors. National Bank of Savannah v. Evans, supra; Bentley v. Barlow, 178 Ga. 618, 173 S.E. 707.

3. The conspiracy may be pleaded in general terms, and this is true although the jurisdiction of the court to render judgment against one or more of the defendants depends upon allegations and proof of the conspiracy. Peoples Loan Co. v. Allen, 199 Ga. 537, 558, 34 S.E.2d 811; Walker v. Grand International Engineers, 186 Ga. 811, 820, 199 S.E. 146.

4. If no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one; but, where a cause of action is alleged, the fact of conspiracy, if proved, makes any actionable deed by one of the conspirators chargeable to all. Young v. Wilson, 183 Ga. 59, 187 S.E. 44; Horton v. Johnson, 187 Ga. 9(5), 199 S.E. 226; Wall v. Wall, 176 Ga. 757(4), 168 S.E. 893; Grant v. Hart, 192 Ga. 153, 156(5), 14 S.E.2d 860; Peoples Loan Co. v. Allen, supra. The liability is joint and several. Smith v. Manning, 155 Ga. 209(2), 116 S.E. 813.

5. 'The law recognizes the intrinsic difficulty of proving a conspiracy. The allegations with reference to conspiracy are treated as matters of inducement leading up to a more particular description of the acts from which the conspiracy may be inferred. * * * Less certainty is required in setting out matters of inducement than in setting out the gist of the action. * * * The conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. The rule is to allow great latitude in setting out in the complaint the particular act upon which the conspiracy is to be inferred, and even to allow individual acts of the conspirators to be averred. 'To show conspiracy, it is not necessary to prove an express compact or agreement to the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met together either formally or informally, or entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or by writings they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design. And any one, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto as if he had been an original member.' 1 Eddy on Comb. § 368.' Woodruff v. Hughes, 2 Ga.App. 361, 365, 58 S.E. 551, 553; Huckaby v. Griffin Hosiery Mills, 205 Ga. 88, 91, 52 S.E.2d 585; Horton v. Johnson, 192 Ga. 338, 346, 15 S.E.2d 605.

6. 'Whether or not a combination formed for injuring another in his business be lawful, so far as the purpose is concerned [such as setting up a lawfully competitive business], if unlawful means are used effectuating that purpose, resulting in damages the conspiracy is actionable.' 15 C.J.S. Conspiracy § 10, p. 1006; Burrus Motor Co. v. Patterson-Pope Motor Co., 50 Ga.App. 801, 810, 179 S.E. 171; Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S.E. 353, 69 L.R.A. 90.

7. Where, under an application of the announced principles of law in the foregoing divisions of the syllabus, in an action for damages against three named defendants, it is alleged that the defendants have damaged the petitioner in a named amount by their wilful, deliberate, wrongful, and unlawful deeds, omissions, silences, breaches of trust, loyalty, and confidence, committed or omitted pursuant to a conspiracy among them unlawfully to destroy and ruin the petitioner's printing business by establishing a competitive printing business; and it is alleged that one of the defendants was the petitioner's general manager in charge of the printing business and occupied a confidential and fiduciary relationship to the petitioner as his general agent; that another of the defendants, acting as an official, agent, and employee, as president of the third defendant, a corporation receiving and retaining the benefits of its president's acts, bore a confidential and fiduciary relationship to the petitioner, as his agent, employed to effectuate a sale of the petitioner's printing business as a going concern; and it is alleged that the first defendant set up a competitive printing business; converted funds, materials, supplies, and equipment belonging to the petitioner's business for use in the competitive business; used the petitioner's facilities and labor to print material advertising the competitive business; used petitioner's ledger of accounts listing his customers to solicit business for the competitive business; and induced named employees of the petitioner to breach their contracts of employment with the petitioner and accept employment in the competitive business; and it is alleged that the second defendant kept silent when he knew that the first defendant was setting up a competitive business, and assured the petitioner that the first defendant was co-operating with him fully in the sale of the petitioner's business, when such was not the case; and it is alleged that the third defendant, through its president, the second defendant, sold enumerated items of machinery and equipment to the first defendant for use in his competitive business, all of which acts are alleged to have been performed pursuant to the combination among the defendants to unlawfully destory and ruin the petitioner's business--the petition stated a cause of action against each of the defendants as against the second and third defendants' general demurrers.

8. Where,...