Jones v. Spindel

• Decision Date: 24 February 1966
• Docket Number: No. 41735,No. 1,41735,1
• Citation: 147 S.E.2d 615,113 Ga. App. 191
• Parties: Candler JONES et al. v. Gilbert D. SPINDEL
• Court: Georgia Court of Appeals

Page 615

147 S.E.2d 615

113 Ga.App. 191

Candler JONES et al. v. Gilbert D. SPINDEL.

No. 41735.

Court of Appeals of Georgia, Division No. 1.

Feb. 24, 1966.

Syllabus by the Court

1. The general demurrers, on the ground that the petition failed to set out a cause of action for conspiracy, were properly overruled.

2. The special demurrers, based on the nonjoinder of an indispensable party, were properly overruled.

Gilbert D. Spindel brought an action in two counts, later amended to three counts, against Candler Jones, Curtis Young, Curtis Homes, Inc. and Preferred Homes, Inc. to recover damages for an alleged infringement of his common law copyright. Count 1 of the petition as amended alleged substantially as follows: That the plaintiff was a professional engineer, associated with Modular Components, Inc. as design consultant under an agreement whereby they were to pay him a royalty for each house or living unit of apartment space which Modular built and sold using plaintiff's designs; that the defendants had the plaintiff prepare design sketches for certain apartments to be constructed by them, using building components from Modular; that a portion of the project was completed and the plaintiff received his royalties pursuant to his agreement with Modular; that defendant Jones then obtained the plaintiff's original plans for the remaining projects, with the understanding that the building components would again be purchased from Modular; that defendants Young and Jones obtained building permits and a loan commitment, then proceeded, without authority from the plaintiff, to make exact copies of his plans, which defendant Preferred Homes, Inc. used to manufacture and build the components, which it sold to the other defendants; that the apartments were then built by the other defendants using the plaintiff's plans and not purchasing the components from Modular, as had been agreed; that the plaintiff did not receive royalties from Modular from said misuse of his plans; that although the plaintiff had advised the defendants of his copyright before the construction began, they proceeded to use his designs and refused to pay him for his services; that the above acts were done by the defendants in a conspiracy to pirate, appropriate and use said plans for their own benefit and profit. Count 2 was stricken on demurrer and is not in issue. Count 3 alleges essentially the same as count 1, with the addition of a prayer for punitive damages for the wilful, malicious, conscious and intentional disregard of the plaintiff's rights, etc.

The court sustained the general demurrer to count 2 and overruled general and special demurrers to counts 1 and 3. The appellants' enumeration of errors is as follows: '(1) The court erred in overruling the general demurrers filed by the appellants to appellee's petition because appellee's petition failed to set out a cause of action for conspiracy against these appellants. (2) The court erred in overruling the special demurrers filed by appellants to appellee's petition attacking the nonjoinder of an indispensable party.'

Westmoreland, Hall & Pentecost, John L. Westmoreland, Jr., Donald E. O'Brien, Atlanta, for appellants.

Sheats, Parker & Webb, John Tye Ferguson, John E. Feagin, Paul Webb, Jr., Atlanta, for appellee.

FELTON, Chief Judge.

1. 'There is no such crime in Georgia as conspiracy, but one may be found guilty of a crime caused by acts pursuant to an already formed conspiracy. The crime is the act prohibited by statute, but not the conspiracy alone. The conspiracy of itself is no crime. The conspiracy is an incident to, and one of the means by which, the act is accomplished.' (Emphasis supplied.) Daniels v. State, 58 Ga.App. 599(9), 199 S.E. 572; Annis v. State, 85 Ga.App. 188, 191, 68 S.E.2d 473.

Similary, "Accurately speaking, 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. While the crime of conspiracy may be committed without doing any overt act in pursuance of the combination, no civil liability is incurred for the conspiracy, but only for the overt acts of the conspirators.' 5 R.C.L. 1901, § 41. 'Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.' Woodruff v. Hughes, 2 Ga.App. 361(1), 58 S.E. 551; Wall v. Seaboard Air-Line Railway, 18 Ga.App. 457(2), 89 S.E. 533; National Bank of Savannah v. Evans, 149 Ga. 67, 99 S.E. 123; Id., 23 Ga.App. 736, 99 S.E. 393.' (Emphasis supplied.) Reeves v. Maynard, 32 Ga.App. 380(1), 123 S.E. 181; Barnett v. Eubanks, 105 Ga.App. 749, 751, 125 S.E.2d 571 and cit.; Cook v. Robinson, 216 Ga. 328(1), 116 S.E.2d 742. The conspiracy, when alleged, may be pleaded in general terms. Cook v. Robinson, 216 Ga. 328, 329(3), 116 S.E.2d...