Gatzow v. Buening

• Decision Date: 27 February 1900
• Citation: 106 Wis. 1,81 N.W. 1003
• Parties: GATZOW v. BUENING ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 1

81 N.W. 1003

GATZOW

v.BUENING ET AL.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John Gatzow against Henry G. A. Buening and another. Judgment for plaintiff. Defendants appeal. Reversed.

Action for damages for injuries caused by an alleged unlawful conspiracy and acts done pursuant thereto. The complaint stated in substance as follows: July 30, 1897, plaintiff employed and paid defendant Schubert, a liveryman, for the services of a hearse and carriage for use at the funeral of the former's 4 year old child, which was to be buried from his residence in the city of Milwaukee, Wis., on the 1st day of April, 1897. The hearse and carriage, with teams and drivers, as agreed upon, were sent to plaintiff's residence and there properly located in front of such residence to await the termination of the funeral services therein. Defendants entered into an agreement to deprive plaintiff of the use of the hearse and carriage and to cause them to be taken away from his residence at about the instant they would be needed to convey the child's body and attending friends to the grave side. Such agreement was entered into with a malicious design to humiliate and injure plaintiff, which was fully accomplished. Just as the funeral services at the house were over, and the coffin containing the child's remainsabout to be placed in the hearse, defendants, pursuant to the agreement above stated, caused the drivers of the hearse and carriages to take the vehicles away, leaving plaintiff to resort to such means as he might be able to procure to continue the funeral. When such occurrence took place there were a large number of people in attendance at the funeral, to whom plaintiff was unable to explain the rude breaking up of the funeral arrangements. The conduct of the defendants as aforesaid, caused plaintiff great humiliation and mental distress, to his damage in the sum of $5,000, besides the loss of $8 paid for the use of the vehicles.

Defendant Schubert denied all the allegations of the complaint regarding an agreement between himself and Buening, or any agreement, to deprive plaintiff of the hearse and carriage, or either of them, or any design to maliciously or otherwise injure plaintiff. The allegations regarding the preparation for the funeral were admitted, including the allegation that the hearse and carriage were furnished to plaintiff and afterwards taken away so that they were not used at the funeral. All allegations of the complaint not specifically admitted or denied, were denied generally.

The answer of Buening stated that there was a liverymen's association in the city of Milwaukee at the time of the occurrence in question, of which he was secretary, and Schubert a member; that one of the by-laws of such association prohibited, under penalty, any member thereof from furnishing vehicles of any kind to any liveryman who hired them out at less than the association prices, and that it was said defendant's duty, as secretary of the association, to do whatever he did on the occasion complained of, in order to prevent violations of the association by-laws; that after the hearse and carriage left Schubert's barn to go to plaintiff's residence, the witness was notified that Schubert was violating the laws of the association by furnishing vehicles to Nieman, a liveryman and undertaker who had charge of the funeral in question and who was not a member of the liverymen's association; that Nieman, on such occasion, as he was in the habit of doing, furnished carriages and vehicles at lower prices, and paid his employés less, than the association permitted; that on being informed of the facts he (Buening) communicated with Schubert's place of business by telephone and was requested therefrom to have the driver of the hearse communicate with his employer's place of business by telephone; that he complied with such request and the result was that the hearse and carriage were taken away from plaintiff's residence and he was deprived of their use; that defendant merely performed his duties to the association, without any specific agreement with Schubert to injure plaintiff, and without malice towards him.

The evidence showed the existence of the liverymen's union as alleged in Buening's answer; that he was secretary and Schubert a member thereof; that Nieman was a liveryman and undertaker doing business outside of the association; that according to the by-laws of the association no member thereof was allowed to do business with any person who did not patronize its members exclusively, or to let a hearse to a private party for a funeral where the undertaker in charge of such funeral was reputed to patronize nonunion members; or to any person whose family, for the occasion, patronized a nonunion livery; that on the occasion in question plaintiff employed Nieman to obtain the carriage and hearse for him, and the engagement of the hearse and carriage of the defendant Schubert was made through Nieman in the name of the plaintiff and without Schubert knowing that Nieman was in any way concerned in the transaction; that the business was done with one of Schubert's employés; that, fearing the transaction might lead to a violation of the rules of the association, Schubert directed the driver of the hearse not to remain at the funeral if a nonunion man was in charge; that after the hearse and carriage left Schubert's barn to attend the funeral, Buening was informed of the facts, particularly that Nieman was the liveryman and undertaker employed by plaintiff, whereupon, pursuant to his duty as secretary of the union, he communicated with Schubert's place of business, giving notice of the violation by the latter of the rules of such union; that Buening was thereupon requested, by or on behalf of Schubert, to cause the driver of the hearse to communicate with the latter's office by telephone, and pursuant thereto Buening went to plaintiff's residence and stated to such driver that his employer wanted to talk with him by telephone. There was considerable evidence that when the driver received word, as aforesaid, he got into the buggy with Buening and drove a short distance, away from plaintiff's residence, but did not use the telephone; that he told Buening there was no need of it because he had orders to return and not allow the hearse and carriage to be used if Nieman officiated at the funeral, whereupon Buening drove back with the hearse driver, and such driver then drove away with the hearse and the carriage driver followed. There was further evidence to the effect that Buening visited plaintiff's residence for the purpose of preventing the hearse and carriage from being used by the plaintiff; that he ordered the driver of the hearse to return to his employer's barn; that he said to Nieman, “I am secretary of the union and authorized to have the hearse go home. I am not going to leave before the hearse goes away. I am going to break up this funeral. I am not going to have this thing go on and this hearse has got to go home.” There was further evidence to the effect that, in Buening's talk with the hearse driver and with Nieman, his conduct was such as to attract the attention of persons in the house and in the vicinity; that when he returned, after taking the driver away to talk with his employer's place of business by telephone, and the driver mounted the hearse and drove away, Buening, by word and manner, evidenced exultation over the success of his efforts to deprive plaintiff of the use of the hearse, saying to Nieman upon driving away, “You see what I can do. Good bye.” There was further evidence to the effect that defendant Schubert ratified whatever was said and done in his behalf in respect to depriving plaintiff of the use of the hearse and carriage, and that all the acts in that regard were in strict harmony with the former's agreement with the liverymen's union. There was further evidence to the effect that as soon as plaintiff and the undertaker recovered from the confusion caused by the sudden and rude taking away of the hearse and carriage, and the consequent disarrangement of the funeral plans, they proceeded with the funeral by placing the coffin in one of the carriages and thus conveying it to the grave. The evidence further tended to show that it was one of the purposes of the liverymen's union to compel every liveryman to belong to it or go out of business and to prevent competition between liverymen and hold up the prices to such a level as the union might see fit to fix.

During the impaneling of the jury defendant's counsel asked questions of the jurors respecting their belief as to the right of persons to form a union for such objects as those of the one in question. Such questions were objected to and the objections sustained, to which rulings due exceptions were taken. When the panel of jurors was complete no objection was made to the jury as a whole. Before the trial commenced, defendants' counsel moved the court to compel plaintiff to elect whether he would proceed in the action for damages for breach of contract or for damages for a tort. The motion was denied and the ruling was excepted to. A further motion was made by defendants' attorneys to strike out all of the allegations of the complaint appropriate to an action on contract, which motion was denied and the ruling excepted to.

Defendants' counsel moved the court to instruct the jury, in substance, as follows:

(1) There being no physical injury in this case, plaintiff is not entitled to recover compensation for mental suffering.

(2) If plaintiff knew that Nieman was unable to procure the vehicles from any member of the liverymen's association, and, with such knowledge, caused Nieman to obtain them in his (plaintiff's) name, withholding from Schubert all knowledge of Nieman's connection with the transaction, there was no agreement between plaintiff and...