Hart v. Hicks

• Decision Date: 04 June 1895
• Parties: Hart et al., Appellants, v. Hicks
• Court: Missouri Supreme Court

31 S.W. 351

129 Mo. 99

Hart et al., Appellants, v. Hicks

Supreme Court of Missouri, Second Division

June 4, 1895

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Numa F Heitman for appellants.

(1) There was no variance at all between the allegations and the proof, because there was sufficient evidence tending to show the conspiracy alleged. Peterson v. Speers, 29 Pa. St. loc. cit. 491; State v. Wolcott, 21 Conn. loc cit. 281; Mussel Slough Case, 5 F. 680; 2 Wharton's Evidence [3 Ed.], sec. 1205; Riehl v. Ass'n, 104 Ind. 73; Keeley v. State, 55 N.Y. 566; Bloomer v. State, 48 Md. 525; Schultz v. Christian, 9 Mo.App. 588; People v. Spies, 122 Ill. 1; Boyd v. Jones, 60 Mo. 454; Bank v. Russell, 50 Mo 531. (2) The sufficiency of the evidence of conspiracy to form a foundation is a question for the jury. State v. Ross, 29 Mo. 32; Oldham v. Bentley, 6 B. Monroe, 428; Helser v. McGrath, 58 Pa. St. 458. (3) Slight evidence of collusion is all that is required. 2 Rice on Evidence, ch. 30, p. 864, sec. 333; 2 Whart. Evidence, sec. 1205; Bigelow on Fraud, ch. 10, sec. 6, p. 167. Also the authorities cited by the above authors. (4) There was no material variance between the allegations and the proof, even if this court should agree with the lower court that there was not sufficient evidence tending to prove the conspiracy alleged. (5) The evidence clearly shows a cause of action. Freidenheit v. Edmundson, 36 Mo. 228; Young v. Bircher, 31 Mo. 136; Goetz v. Ambs, 27 Mo. 29; 16 Am. and Eng. Encyclopedia of Law, p. 989, and notes 2, 3, 4 and 5; State v. Moffett, 1 Greene (Iowa), 147; Calef v. Thomas, 81 Ill. 478; Trauerman v. Lippincott, 39 Mo.App. 478.

Kinley & Kinley for respondent.

(1) Before acts or declarations of alleged conspirators can be introduced against a defendant alleged to be a co-conspirator, the conspiracy or unlawful agreement must be first clearly shown. Hence the acts and declarations of Mrs. Conroy and family were properly excluded by the court on the trial of this case. State v. Ross, 29 Mo. 51; State v. Daubert, 42 Mo. 238; 3 Greenl. Ev., sec. 94; State v. Duncan, 64 Mo. 266. While a conspiracy may be proved by circumstantial evidence like any other fact, still before acts of alleged co-conspirators can be admitted in evidence, it must be proven. Keeley v. State, 55 N.Y. 566; Clayton v. Anshaving, 6 Rand. (Va.) 285; Preston v. Bowers, 13 Ohio St. 1; Kimmerle v. Gleting, 2 Grant (Pa.), 85. (2) The husband of Mary J. Hart being in the actual possession of the premises where his family lived, any alleged trespass to such possession or damage done thereto, could not be recovered by the wife, hence the claim made by her for nominal damages, because of the alleged tearing down of the partition, can not be sustained. "The husband has a marital right to the possession, and that possession is exclusive." This is true, even of real estate in which the wife has the legal estate. Hunt v. Thompson, 61 Mo. 153; Brownlee v. Fenwick, 103 Mo. 420; Kanaga v. Railroad, 76 Mo. 215; Wilson v. Geraghty, 70 Mo. 518.

OPINION

Burgess, J.

The plaintiff Mary J. Hart, her husband, O. Y. Hart, joining with her, prosecutes this action against the defendant, who had previously been her landlord, for damages in combining with other tenants of defendant, to wit: Mrs. Emma Conway and family, and one John Rogers, who occupied the first floor and basement of the same building, while plaintiff occupied the second floor, to drive the plaintiffs and their family out of said building. At the conclusion of the evidence offered by plaintiff, the defendant interposed a demurrer thereto, which was sustained. Plaintiffs then took a nonsuit with leave to move to set the same aside, and, the motion being overruled, they appealed.

The petition alleges that, on the twenty-first day of November, 1892, while plaintiffs and family were absent from home, in pursuance of a conspiracy entered into by defendant, said Conway and Rogers, the entrance door to the building occupied by plaintiffs, was closed by said Rogers and Conway, and they maliciously and unlawfully refused to open said door when the plaintiff Mary and her daughter returned to said house for the purpose of going to the part occupied by them, so that she was compelled to seek shelter elsewhere until an hour after dark that night, when they and their family were enabled to get in; that on the next day in pursuance of said conspiracy to drive plaintiffs and their family from said house the defendant unlawfully broke into and took possession of this said house, and then and there forced and broke open and from its hinges and carried away the door leading from the stairway of said premises into said second floor, and tore down the partition at the head of said stairway which separated said second floor from the balance of said house and protected it from the cold coming in from the outside door, thereby rendering the part of the house occupied by plaintiffs unfit for occupation.

The petition then alleges that, in pursuance of said conspiracy, defendant, on the twenty-fourth day of November, 1892, procured and caused the entrance door to said building to be opened in the nighttime and left open, so that the cold air from the outside was let into their apartments, by reason of which plaintiffs and their children were taken sick, suffered great pain, and incurred heavy expenses for nursing and medical attention; that on the twenty-fifth day of November, 1892, in furtherance of said conspiracy, and in the absence of the husband of said Mary, one D. L. Elder was sent to the house for the purpose of terrorizing and frightening the said Mary, and did threaten to arrest her, thereby greatly frightening and terrorizing her and her daughter; that again, on the twenty-sixth day of November, 1892, one J. Cunningham in pursuance of the direction of defendant, intruded himself into plaintiffs' home, and demanded that he should be permitted to go into the bath room, on said second floor, which was part of the premises rented by plaintiffs, and, by threatening to break the door open if it was not opened, compelled her to open the same, and told her that if the door was not left open that she would be arrested, at the same time displaying an officer's star. The damages are laid at $ 5,000, for which judgment is asked.

The answer admits that plaintiffs are husband and wife, and denies all other allegations, except as specifically admitted. Then by way of special defense it avers that the house, the second floor of which was occupied by plaintiffs, was a tenement house, occupied by different tenants, and the entrance halls and water closets pertaining thereto were used and enjoyed by all of them alike, as plaintiffs well knew, and with their knowledge and consent. The answer then proceeds as follows:

"Defendant further states that after having occupied said upper part of said house said O.Y. Hart asked to have a temporary partition put across a portion of said hall so as to protect himself and family from the scent of cooking arising from the lower floor and defendant consented thereto, with the understanding and agreement that said partition should not be constructed or used so as to hinder the...