Dixon v. Reconciliation, Inc.

• Decision Date: 15 April 1980
• Docket Number: No. 42688,AM-FM,42688
• Parties: Johnny DIXON, doing business as J. D. Productions, Appellant, v. RECONCILIATION, INC., doing business as KOWHRadio Station, Keith Donald, and Carl Allison, Individually and Severally, Appellees.
• Court: Nebraska Supreme Court

Page 230

291 N.W.2d 230

206 Neb. 45

Johnny DIXON, doing business as J. D. Productions, Appellant, v. RECONCILIATION, INC., doing business as KOWH AM-FM Radio Station, Keith Donald, and Carl Allison, Individually and Severally, Appellees.

No. 42688.

Supreme Court of Nebraska.

April 15, 1980.

Syllabus by the Court

1. Conspiracy. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

2. Conspiracy. An action of conspiracy sounds essentially in tort. The principal element of conspiracy is an agreement or understanding between two or more persons to inflict a wrong against or injury upon another. It involves some mutual mental action coupled with an intent to commit the act which results in injury. Without the scienter, persons cannot conspire.

3. Pleadings: Petition. The petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.

4. Pleadings: Demurrer. A general demurrer tests the substantive legal rights of the parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from the facts which are well pleaded. A petition is sufficient if, from the statement of facts set forth therein, the law entitles the plaintiff to recover.

5. Pleadings: Demurrer. Pleadings are to be liberally construed, and if with such construction a petition states a cause of action against a defendant and in favor of the plaintiff, a demurrer thereto should be overruled.

6. Conspiracy. To state a cause of action for conspiracy, it is necessary for the pleader to allege not only the conspiracy and the doing of the wrongful acts, but also facts showing that damage resulted therefrom.

7. Conspiracy: Corporations. To set forth a claim of conspiracy between a corporation and its corporate employees, the petition must allege that the latter are acting outside the scope of their authority or other than in the normal course of their corporate duties.

Jarve L. Garrett, Omaha, for appellant.

H. Daniel Smith, Omaha, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

Plaintiff below, Johnny Dixon, doing business as J. D. Productions, hereinafter referred to as "Dixon," appeals to this court from the action of the District Court for Douglas County, Nebraska, sustaining the demurrer of the defendants to Dixon's third amended petition which sought damages for an alleged civil conspiracy between the defendants, Reconciliation, Inc., doing business as KOWH AM-FM Radio Station, hereinafter referred to as "KOWH;" Keith Donald, general manager of said radio station, hereinafter referred to as "Donald;" and Carl Allison, sales manager of said radio station, hereinafter referred to as "Allison." The petition alleges that the defendants did jointly and severally conspire among themselves and with others for the purpose of intentionally injuring, either directly or indirectly, the plaintiff's promotional business in general and, specifically, his promotion of a B. T. Express concert. As previously mentioned, the trial court sustained the demurrer and dismissed Dixon's third amended petition. The sole issue in this appeal is the correctness of the ruling by the trial court.

We have in this state recognized a cause of action for damages resulting from civil conspiracy. The general nature of the action is set out in Peters v. Woodman Accident & Life Co., 170 Neb. 861, 104 N.W.2d 490 (1960), wherein we stated: "A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means." Id. at 869, 104 N.W.2d 496. In Frank H. Gibson, Inc. v. Omaha Coffee Co., 179 Neb. 169, 137 N.W.2d 701 (1965), we cited with approval language from the earlier case of Reid v. Brechet, 117 Neb. 411, 220 N.W. 590 (1928), as follows:

An action of conspiracy sounds essentially in tort. * * * The principle (sic) element of conspiracy is an agreement or understanding between two or more persons to inflict a wrong against or injury upon another. It involves some mutual mental action coupled with an intent to commit the act which results in injury. Without the scienter persons cannot conspire.

Id. at 179, 137 N.W.2d 708. See, also, Davidson v. Simmons, 203 Neb. 804, 280 N.W.2d 645 (1979); Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962); Trebelhorn v. Bartlett, 154 Neb. 113, 47 N.W.2d 374 (1951); Rettiger v. Pierpont, 145 Neb. 161, 15 N.W.2d 393 (1944). The general rule in this state appears to be in accord with W. Prosser, Law of Torts 293 (4th ed. 1971), where that eminent authority states:

There has been a good deal of discussion as to whether conspiracy is to be regarded as a separate tort in itself. On the one hand, it is clear that the mere agreement to do a wrongful act can never alone amount to a tort, whether or not it may be a crime; and that some act must be committed by one of the parties in pursuance of the agreement, which is itself a tort. "The gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff." It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable.

Having stated the general nature of the action involved in this appeal, we believe it would be helpful at this time to set forth applicable principles of pleading with reference thereto. It is a statutory requirement that petitions must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. Neb.Rev.Stat. § 25-804(2) (Reissue 1975). The statutes also provide that a defendant may demur to a petition when it appears on its face that the petition does not state facts sufficient to constitute a cause of action. Neb.Rev.Stat. § 25-806(6) (Reissue 1975). "It is unimportant how meritorious a cause of action a litigant may have. It cannot avail him anything if he fails to properly state in his petition concerning it sufficient actionable facts. A petition which fails to plead actionable facts is vulnerable to a general demurrer." Johnson v. Ruhl, 162 Neb. 330, 335, 75 N.W.2d 717, 720 (1956). See, also, State Auto. & Cas. Underwriters v. Farmers Ins. Exchange, 204 Neb. 414, 282 N.W.2d 601 (1979).

A . . . general demurrer . . . "tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from the facts which are pleaded. A petition is sufficient if from the statement of facts set forth therein the law entitles the plaintiff to recover."

Clyde v. Buchfinck, 198 Neb. 586, 592, 254 N.W.2d 393, 397 (1977). See, also, Cizek v. Cizek, 201 Neb. 4, 266 N.W.2d 68 (1978); Dangberg v. Sears, Roebuck & Co., 198 Neb. 234, 252 N.W.2d 168 (1977); Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568 (1958). We have also held that pleadings are to be liberally construed, and if with such construction a petition states a cause of action against a defendant and in favor of the plaintiff, a demurrer thereto should be overruled. Pefley v. Johnson, 30 Neb. 529, 46 N.W. 710 (1890).

With the foregoing rules in mind, we must, therefore, determine what facts must be alleged in order to state a cause of action for conspiring to injure a business relation. To state a cause of action for conspiracy, it is necessary for the pleader to allege not only the conspiracy and the doing of the wrongful acts, but also facts showing that damage resulted therefrom. Commercial Union Assurance Co. v. Shoemaker, 63 Neb. 173, 88 N.W. 156 (1901); Reed v. Occidental Bldg. & Loan Ass'n, 122 Neb. 817, 241 N.W. 769 (1932); Rankin v. Bigger, 128 Neb. 800, 260 N.W. 202 (1935). Of interest in this connection is Stewart Land Co. v. Perkins, 290 Mo. 194, 234 S.W. 653 (1921), wherein the court held that a petition alleging that plaintiff was engaged in a lawful business and that defendant without cause or excuse, and actuated alone by malice, conspired with others to interfere with and destroy plaintiff's business, and in pursuance of such conspiracy has actually interfered with and damaged the business, sufficiently stated a cause of action on the case for unlawful conspiracy.

We now examine the allegations contained in Dixon's third amended petition. Concededly, this petition is not a model of good pleading. However, in addition to the general allegation that the defendants did jointly and severally conspire among themselves and...