Franklin v. Erickson

• Decision Date: 01 June 1929
• Court: Maine Supreme Court
• Parties: FRANKLIN v. ERICKSON et al.

146 A. 437

FRANKLIN

v. ERICKSON et al.

Supreme Judicial Court of Maine.

June 1, 1929.

On motion from Supreme Judicial Court, Aroostook County, at Law.

Action by John Franklin against August Erickson and another. Verdict for plaintiff, and defendant named moves to set aside the verdict. Motion granted.

Argued before WILSON, C. J., and DEASY, STURGIS, BARNES, and BAS SETT, JJ.

W. P. Hamilton, of Caribou, A. S. Crawford, Jr., of Houlton, and John J. Cummings, of Boston, Mass., for plaintiff.

Joseph E. Hall, of Caribou, and Ransford W. Shaw, of Houlton, for defendant.

BARNES, J. This case comes before the court on defendant's motion to set aside a verdict, upon the usual grounds.

The action as tried was for a conspiracy to injure the plaintiff in his reputation and profession by the utterance of slanderous words.

When sued out, the writ charged conspiracy of three, but, at the trial term, discontinuance as to the third was allowed and trial proceeded against defendant Erickson and his sister, Mrs. Elofson. The jury found the latter not guilty, and assessed damages against Mr. Erickson, hereinafter called the defendant.

In January 1922, plaintiff was "student pastor" of the Swedish Luthern Church, in New Sweden, Maine, the church of the defendant.

The allegation is that then and there defendant more or less publicly accused plaintiff of criminal intercourse with a woman then living in that town.

In 1924 plaintiff presented himself for ordination before the supreme body of his church, and his petition was denied, as he testified, because knowledge of the alleged slanderous utterances of defendant was brought to the attention of the ordaining authorities.

The writ is dated October 12, 1927.

A conspiracy at common law may be defined, in short, as an agreement or combination formed by two or more persons to do an unlawful act, or to do a lawful act by unlawful means.

An executed conspiracy is actionable, if it cause damage to person or property of the plaintiff. There is no recovery in a civil action for conspiracy without damage.

This action is on the case for tort. The tort complained of here is slander. As drawn, the writ alleged a joint tort of three persons; as tried, the action was for a joint tort of two.

Conspiracy is a convenient form of declaration against two or more joint tortfeasors.

The averment of conspiracy adds nothing to the nature or gravity of the offense charged.

It is but a convenient mode of declaring for a joint tort against two or more persons. True, the choice of tort in the nature of conspiracy affects the expense of litigation and the applicability of evidence, but the gist of the action, its ground and foundation, is the tort alleged, in this case slander.

It is for the tort proven that a defendant or defendants must respond in damages. Parker v. Huntington et al., 2 Gray (Mass.) 124; Hayward v. Draper, 3 Allen (Mass.) 551; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279; Boston v. Simmons, 150 Mass. 463, 23 N. E. 2. R. A. 10, 6 L629, 15 Am. St. Rep. 230; Page v. Parker, 43 N. H. 363, 80 Am. Dec. 172; Stevens v. Rowe, 59 N. H. 578, 47 Am. Rep. 231; National Fireproofing Co. v. Mason Builders' Ass'n (C. C. A.) 169 P. 259, 26 L. R. A. (N. S.) 148; Brown & Allen v. Jacobs' Pharmacy Co., 115 Ga. 429, 41 S. E. 553, 57 L. R. A. 547, 90 Am. St. Rep. 126; Kimball v. Harmon, 34 Md. 407, 6 Am. Rep. 340; Jones v....