Hunt v. Simonds

• Decision Date: 31 March 1854
• Citation: 19 Mo. 583
• Parties: HUNT, Appellant, v. SIMONDS et al., Respondents.
• Court: Missouri Supreme Court

19 Mo. 583

HUNT, Appellant,

v.SIMONDS et al., Respondents.

Supreme Court of Missouri.

March Term, 1854.

1. An action does not lie for a conspiracy to do a lawful act. Thus an action will not lie against the officers of insurance companies for combining to refuse to take insurance on a boat, however malicious their motive.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by Hunt against the officers of the various insurance companies in the city of St. Louis, to recover damages for an alleged conspiracy to ruin him in his business. The petition alleged that the plaintiff, for a period of about nineteen years, had followed the business of a steamboat captain and pilot, as a means of support for himself and his family, and during all that time had been, and had enjoyed the reputation of being, a prudent, competent, and trustworthy captain and pilot; that by reason of his long and constant employment in this business, he was not well qualified for any other pursuit; that in November, 1852, he purchased a steamboat, at an expense of $12,000, for the purpose of carrying freight and passengers between St. Louis and New Orleans, and that said boat was in every respect well equipped. sound, seaworthy, and suitable for the trade for which she was purchased; and that afterwards the defendants, “in combination, confederacy, and conspiracy together, wilful and malicious, and with intent to injure and wholly ruin the plaintiff in his trade and occupation, without cause, refused to take any insurance on said boat;” and that it was agreed between the defendants that they would not take insurance upon any boat in which the plaintiff was interested, or with which he was in any way connected, whereby the plaintiff was compelled to sell his boat and abandon his business. He claimed damages to the amount of $100,000. A demurrer to this petition was sustained, and he appealed to this court.

U. Wright, Leslie & Barrets, for appellant.

I. Action on the case, in the nature of conspiracy, lies for a civil injury. 7 Cow. 445; 7 Pick. 342; 17 Mass. 182, 186; Brightly's Rep. 143; 1 Binney, 172; 12 Vermont, 533; 2 Bay, 203; 2 Hall, 277; 6 C. & P. 239; 8 S. & R. 522; 5 Watts & S.192; 6 Watts, 306; 10 Barr, 372; 8 Barr, 369; 2 Hall, 214; Taylor, 80. The scope of the action is much wider than that of the writ of conspiracy, (7 Cow. 445, 7 Pick. 549, 6 Watts. 306,) and wider than that of an indictment for conspiracy 4 Halstead. Damage is the gist of the action, not the conspiracy, and as a consequence of this, one or two conspirators may be found guilty in the civil action. Taylor, 80; Henchman v. Ritchie, Brightly's Rep. 143; 2 Mass. 112; 17 Mass. 182, 186.

II. The conspiracy set out in this case is actionable. A conspiracy is defined to be an agreement or combination to do an unlawful act, or a lawful act for an unlawful end; 1 Bouvier, 316; Henchman v. Ritchie, supra; 4 Metcalf, 111; 5 Harr. & J. 581-2. The law has no legal means to an unlawful end. A combination to ruin and impoverish a man in his business is unlawful per se. A baker may refuse me and my family bread, but the bakers of a city cannot lawfully combine and confederate, to the end that I get no bread. So an insurance company may refuse to underwrite for me, but the underwriters may not combine and confederate to deny me insurance--to break up my vocation. The demurrer in this case admits that the combination was malicious, and for the purpose of ruining the plaintiff in his business, and that this purpose was accomplished. In 7 Cow. 445, it was decided that an action lies against a conspiracy to lessen the profits of a vocation. A fortiori, it lies against a conspiracy to destroy the vocation.

Glover & Richardson, Haight & Shepley, Hudson & Thomas, Krum & Harding, and Kasson, for respondents.

I. The action for a conspiracy has long since become obsolete, and has been superseded by the action on the case in the nature of a conspiracy. The action did not lie at common law in any case, except where the conspiracy was to indict the party of treason or felony of which he was afterwards acquitted. 2 Wheaton's Selwyn's N. P. 1077.

II. In the modern action on the case, the averment of the conspiracy is immaterial, and need not be proved. The action may be brought against one defendant, or if brought against more, one may be found guilty and the rest acquitted. 1 Ld. Raym. 374; 12 Modern. 208; 1 Saunders, note 4, p. 230; Hutchins v. Hutchins, 7 Hill, 107. It follows from this, that the true test of the action is, whether it can be maintained against one defendant; and that it can only be maintained where there has been an invasion of a legal right. 7 Hill, 107.

III. It cannot be seriously contended that any one of the insurance companies mentioned in the petition, might not, with impunity, and without giving any reason therefor, have refused to insure the plaintiff's boat or freight bills. Insurance companies are under no legal obligation to underwrite. If any one of them may lawfully refuse to take insurance, the refusal will not be rendered actionable by their conspiracy. Wellington v. Small, 3 Cushing, 145-50.

GAMBLE, Judge, delivered the opinion of the court.

The petition in this case charges the defendants, who are officers of various insurance companies in St. Louis, with having combined, confederated, and conspired wilfully and maliciously to injure and wholly ruin the plaintiff in his trade and occupation as commander of a steamboat, and having for that purpose, and with the intent of effecting the object, refused, without cause, to take any insurance upon his boat, whereby he was deprived of all benefit from his occupation, and was compelled to sell his boat and abandon his business. This is the strongest statement of the plaintiff's case, set out in his petition. To this petition, there was a demurrer which was sustained by the court below, and the case is brought here to determine the sufficiency of the petition.

1. Among the numerous cases which have been examined, there has been no one found which presents an aspect like the present. All the cases in which damages have been recovered for injuries produced by individuals conspiring against another, are cases in which some positive act was done by the defendants, in pursuance of a common intent. Here the damage to the plaintiff is alleged to have been produced by the refusal of the defendants to make contracts in the ordinary line of their business. It is obviously the right of every citizen to deal or refuse to deal with any other citizen, and no person has ever thought himself entitled to complain in a court of justice of a refusal to deal with him, except in some cases where, by reason of the public character which a party sustains, there rests upon him a legal obligation to deal and contract with others. Inn-keepers, who are bound to entertain strangers, and common carriers, who are bound to undertake the transportation of goods, are among such exceptions. But such is not the obligation of underwriters. The business of insuring is but a game of hazard, and there are a great many elements entering into the calculations upon which it can be safely pursued. The seaworthiness of every vessel upon which insurance is asked, is made up of its staunchness and suitable equipment, and the skill, competency, and fidelity of its officers and crew; and upon each of these points, very different opinions may be entertained by different persons, as is shown by the cases in which such questions have been in controversy. A man may possess the requisite skill to command a boat, and yet an underwriter may be unwilling to take the hazard of his fidelity, although it may be impossible to prove any particular act of misconduct. While, in the present case, we are to take the plaintiff to be, as is alleged in his petition, a skillful, competent and faithful commander, yet the right of the defendants still remains unaffected, which is to decide for themselves whether they will put their money at risk or not, by insuring upon property under his charge. To assert the contrary is to assert that underwriters are bound in law to insure property whenever insurance is asked, and the vessel is staunch and well equipped, and provided with competent and faithful officers and crew. If, under such circumstances, they are not bound to insure, then the refusal to insure is not the denial of any right belonging to the owner of the property upon which insurance is sought.

The present action, then, is founded upon the idea that the defendants are responsible for an injury sustained by the plaintiff in his occupation, because they conspired to effect that injury, although the means employed, were not, in themselves, illegal or immoral.

A writ of conspiracy, properly so called, did not lie at the common law in any case but where the conspiracy was to indict the plaintiff of treason or felony, and a verdict had been rendered in his favor. 1 Saund. 230, note 4; Jones v. Baker, 7 Cow., 449. This remedy required that two persons, at least, should be charged, and the judgment must be rendered against two, upon the ground that the conspiracy being the basis of the proceeding, it was necessary to the establishment of the conspiracy that two should be convicted.

The writ of conspiracy has given place to the action on the case, in the nature of a writ of conspiracy, and this action may be sustained against one alone. Skinner v. Gunton, 1 Saund. 228; Laville v. Roberts, 1 Ld. Raym. 378-9; Jones v. Baker, 7 Cowen, 445; Hutchins v. Hutchins, 7 Hill, 107; Kirtly v. Deck, 2 Munf. 22.

In a criminal prosecution for a conspiracy, the conspiracy is the criminal act for which the defendant is to be punished, and the...