Jones v. Monson

• Decision Date: 05 January 1909
• Citation: 119 N.W. 179,137 Wis. 478
• Parties: JONES v. MONSON ET UX.
• Court: Wisconsin Supreme Court

137 Wis. 478

119 N.W. 179

JONES

v.MONSON ET UX.

Supreme Court of Wisconsin.

Jan. 5, 1909.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Lewis L. Jones against Ole Monson and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Appeal from the circuit court for Columbia county from a judgment of $1,608.20, damages and costs to remedy injuries caused by alienating the affections of plaintiff's wife.

The defendants are husband and wife and parents of plaintiff's wife. Plaintiff's claim was that defendants conspired together with bad intent to deprive plaintiff of his wife's affections and cause her to desert him, and accomplished their purpose by compelling the wife, who with her husband were residing with the defendants and had so resided for a considerable length of time prior to their marriage, to seclude herself and baby girl which had been born to them, from him and induced her to refuse to speak to him or recognize him as her husband or permit him to pay her or their child any attention and drove him from the house by ill treatment and forbade him to return or come upon the premises, notifying him that the daughter would not go therefrom to live with him.

Defendants answered putting in issue all the allegations of the complaint as to improper treatment of the plaintiff and with bad intent influencing his wife against him.

Upon evidence tending to support the allegations of the complaint the cause was submitted to the jury on the subject of punitory and that of actual damages as well, resulting in a verdict in defendants' favor as to the former but in the plaintiff's favor as to the latter, the damages being assessed at $1,500. Judgment was entered upon the verdict in plaintiff's favor.Daniel H. Grady, for appellants.

Henry A. Gunderson, for respondent.

MARSHALL, J. (after stating the facts as above).

The first three assignments of error will be considered together. They involve these subjects: (1) Did the complaint present a case of an executed conspiracy to injure by wrongfully depriving respondent of his wife's affections? (2) Can there be such a conspiracy as between husband and wife? (3) Was there sufficient proof of such a conspiracy as to render evidence of what was said or done by one in the absence of the other admissible against both? (4) Was the evidence sufficient to carry the case to the jury on the issue of wrongful intent?

1. No question is raised but that a conspiracy to injure respondent by depriving him of his wife's affections and society, was alleged. The infirmity claimed is that the complaint failed to state facts reasonably indicating an execution thereof. In deciding that, the pleading must be tested by the broad liberal rule of the statute that “in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.” Section 2668, St. 1898. More and more, as time continues, the beneficent purpose of that statute is appreciated and disposition to give it the broadest scope which can reasonably be done is evinced. It is one of the most significant of the indications found throughout the Code that its builders purposed to sweep away, so far as possible, the technicalities and hindrances of common-law procedure; superseding it by a new system as near the ideal as practicable of a plain, simple, easy method of presenting controversies for judicial treatment and the solution thereof--one that would always give dignity to the substance of things, overlooking mere solvable indefiniteness and nonprejudicial imperfections. In harmony therewith it has been iterated and reiterated that “criticisms of a pleading will not support a challenge for insufficiency * * * if sufficient can be discovered, reasonably, by judicial construction to sustain it.” The sole test is, “Will the language used permit of a reasonable construction which will sustain” the pleading? Emerson v. Nash, 124 Wis. 369-380, 102 N. W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944. Failure to appreciate the force of this rule and the extent of the change wrought by the Code, results in waste of energy of counsel, useless expense to clients and to the public.

The complaint after stating, in appropriate language, the formation of a conspiracy to injure by depriving respondent of the affections and society of his wife, charged that the persons so wrongfully conspiring “did finally acquire, from bad and improper motives and malicious, false insinuations, such influence over plaintiff's said wife, and defendants used such influence to the extent that the love, affections and respect of plaintiff's said wife for plaintiff had been wholly alienated and destroyed.” That is followed by allegations of the perpetration of specific malicious acts for the purpose, as stated, of “forcing and driving plaintiff away from his said wife and child,” and so resulting, concluding with the charge “that by carrying out such malicious conspiracy * * * plaintiff has been wrongfully and maliciously deprived of his wife's affections, society, comfort, and assistance. * * *” What more is required? We are unable to suggest anything and counsel fails in that regard, except upon the hypothesis that the complaint does not charge that the alleged wrongful acts were done pursuant to a formed conspiracy to accomplish the result reached. True, the complaint might have been more logically framed. After charging the conspiracy to injure by accomplishing what in fact occurred, the pleader might well have then charged that pursuant to such wrongful conspiracy to injure with specific malicious intent to effect the purpose thereof, certain acts, specifying them, were done with bad intent, closing with a charge as to the consummation of the conspiracy to the plaintiff's damage. But there is no mistaking the purpose of the pleader to state that the wrongful acts were perpetrated pursuant to the wrongful combination, and that the purpose was accomplished. Moreover, it can hardly be said that rules for judicial construction of a pleading need be resorted to for that purpose, as the quotations we have given clearly indicate. But if it were otherwise the rule for testing pleadings for insufficiency, to which we have referred, easily solves the uncertainty. “All facts,” as stated in White v. White, 132 Wis. 121-127, 111 N. W. 1116, a case similar to this, “reasonably inferable from those expressly alleged are to be regarded as efficiently pleaded.”

2. We are not familiar with the supposed rule counsel contends for, that a wife is incapable of being guilty of a wrong jointly with her husband because of the ancient presumption that what a wife does in that regard in the husband's presence, or so near by as to be within his influence, is presumed to be under coercion of his will. That doctrine so far as it once existed and is not obsolete, relates to a mere rebuttable presumption, not disability. Miller v. State, 25 Wis. 384; 1 Bishop's New Criminal Law, §§ 356-366.

The common-law doctrine undisturbed by statute, that a husband and wife by themselves cannot be guilty of a criminal offense when the gist thereof is conspiracy is familiar. 2 Bishop's New Criminal Law, § 187; Wright on Criminal Conspiracies, 221. The basic feature thereof is that a husband and wife are but one and that since it takes two or more persons to form a conspiracy, the husband and wife alone are incapable thereof but are so when acting with one or more others. That principle by no means goes to the extent of exempting a wife from the consequences of criminal acts in execution of a conspiracy jointly with her husband which are of themselves subjects of criminal prosecution. The parties may be prosecuted jointly with or without any other person being charged, the conspiracy not being the gist of the offense, and both convicted. State v. Clark, 9 Houst. Rep. (Del.) 536.

The authorities relied upon by the learned counsel, and which it seems moved the learned trial court to rule in counsel's favor, to the extent of holding that an action for conspiracy will not lie against husband and wife, on the supposition that the complaint in one aspect might be treated as a pleading in an action to remedy such a wrong, are all, so far as any bearing on the question is concerned, criminal cases. There is no such a thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone. When the unlawful combination is the offense, as in criminal prosecutions, then the principle invoked by counsel applies. Rex v. Locker, 5 Esp. N. P. 107; People v. Miller, 82 Cal. 107, 22 Pac. 934; State v. Clark, supra; Kirtley v. Deck, 2 Munf. (Va.) 15, 5 Am. Dec. 445. These and similar cases are pointless as regards the action here. The last citation was a civil case. The husband and wife were charged with others and the law that they may be so charged notwithstanding the doctrine of unity was passingly referred to as sufficient for the case. Counsel there argued that the principle now insisted on had no application as the gist of the offense was the damage not the conspiracy. The court passed that question, the suggestion before indicated being deemed sufficient.

In a civil action for damages for an executed conspiracy, as is very familiar, the gist of the wrong is the damages. The combination may be of no consequence except as bearing upon rules of evidence. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840;State ex rel. Durner v. Huegin, 110 Wis. 189-255, 85 N. W. 1046, 62 L. R. A. 700;Randall v. Lonstorf, 126 Wis. 147, 105 N. W. 663, 3 L. R. A. (N. S.) 470. The circuit court seems to have thought it was necessary to reject from the complaint as surplusage the allegation to the effect that the defendants conspired together with bad intent to accomplish the wrong. Not so, since the action,...