Dickson v. Young

• Decision Date: 19 October 1926
• Docket Number: 37730
• Citation: 210 N.W. 452,202 Iowa 378
• Parties: E. G. DICKSON, Appellant, v. H. C. YOUNG et al., Appellees
• Court: Iowa Supreme Court

210 N.W. 452

202 Iowa 378

E. G. DICKSON, Appellant, v. H. C. YOUNG et al., Appellees

No. 37730

Supreme Court of Iowa, Des Moines

October 19, 1926

Appeal from Davis District Court.--D. W. HAMILTON, Judge.

Plaintiff appeals from a judgment sustaining a demurrer to his amended and substituted petition as amended.

Reversed.

Mabry & Mabry, Roberts & Roberts, and T. P. Bence, for appellant.

Bates & Dashiell, Charles H. Elgin, Payne & Goodson, Henry C. Taylor and Heinrich Taylor, for appellees.

Verne J. Schlegle, for appellees J. G. Stone and John Waybill.

MORLING J. DE GRAFF, C. J., and EVANS and ALBERT, JJ., concur. VERMILION, J., not participating.

OPINION

MORLING, J.

This case was recently before us (Dickson v. Young, 199 Iowa 589, 200 N.W. 210, to which reference may be had for a more complete statement of it). Within the period allowed by the statute of limitations, the plaintiff filed an amended and substituted petition, alleging that the defendants maliciously "conspired, colluded, and confederated together" in instituting and maintaining criminal proceedings against plaintiff for violation of the "espionage act," in which he was exonerated; that the proceedings, which are set out in detail, were instituted and conducted by defendants maliciously and without cause. After our decision referred to, plaintiff amended by striking out the words "conspired, colluded, and confederated together" and substituting in their place the words "acted together jointly, and aided and abetted each other." Defendants thereupon demurred, upon the ground that the amendment pleaded a new cause of action which occurred more than two years before, and was therefore, barred by the statute of limitations. The demurrer was sustained.

The defendants' theory is that the cause of action set out in the amended and substituted petition was one for conspiracy, and that, when the charge of conspiracy was eliminated, the cause of action pleaded was necessarily changed to a different one. This court is committed to the doctrine that a conspiracy is not actionable civilly unless something is done which without the conspiracy would constitute a cause of action. Jayne v. Drorbaugh, 63 Iowa 711, 17 N.W. 433; Beechley v. Mulville, 102 Iowa 602, 70 N.W. 107; Bitzer v. Washburn, 121 Iowa 462, 96 N.W. 978; Hall v. Swanson, 201 Iowa 134, 206 N.W. 671; Young v. Gormley, 119 Iowa 546, 93 N.W. 565.

In civil actions in which plaintiff alleges a conspiracy, the gravamen, gist, or cause of action is not the conspiracy, but the wrong which the conspirators committed in the execution of it, and from the commission of which the plaintiff has sustained injury. Conspiracy is important only to charge each of the participants in it with responsibility for the acts of the others in carrying out its purpose. The petition need not allege the existence of a conspiracy. If it does allege conspiracy, the allegation may be disregarded. If it is not proved, the plaintiff may show by other evidence guilty participation of all of the defendants in the tort which constitutes the cause of action. If plaintiff fails to show guilty participation of all, he will still be entitled to judgment against the one or more whom he proves to be guilty. Dickson v. Yates, 194 Iowa 910, 188 N.W. 948; Young v. Gormley, 119 Iowa 546, 93 N.W. 565; Brackett v. Griswold, 112 N.Y. 454 (20 N.E. 376); Green v. Davies, 182 N.Y. 499 (75 N.E. 536, 3 Ann Cas. 310); Boesch v. Kick, 97 N.J.L. 92 (116 A. 796); Goble v. American R. Exp. Co., 124 S.C. 19, 115 S.E. 900; Silliman v. Dobner, 165 Minn. 87, 205 N.W. 696; Howland v. Corn, 146 C.C.A. 227 (232 F. 35); Perry v. Hayes, 215 Mass. 296 (102 N.E. 318); Britton v. Young, 36 Ind.App. 622 (74 N.E. 905); City of Boston v. Simmons, 150 Mass. 461 (23 N.E. 210); Kile v. Anderson, 182 Wis. 467 (196 N.W. 762). It necessarily follows that the...