Liappas v. Augoustis
| Decision Date | 18 July 1950 |
| Citation | 47 So.2d 582 |
| Parties | LIAPPAS v. AUGOUSTIS et al. |
| Court | Florida Supreme Court |
Brunstetter & Waldin, Miami, for appellant.
Baynes, Garman & Phillips, West Palm Beach, for appellees.
The plaintiff, appellant here, filed suit in the court below to recover damages alleged to have been sustained because of the conspiracy of the defendant-appellees to alienate the affections of plaintiff's wife, who was the niece of defendants. Upon demurrer of defendants, plaintiff's suit was dismissed with prejudice, and he now appeals.
The sole question on this appeal is whether or not Chapter 23138, Laws of Florida, Acts of 1945 (being Chapter 771, Florida Statutes, F.S.A.) operates as a bar to a civil action for conspiracy to commit the wrongs, theretofore actionable, enumerated in said Act.
Section 771.01 of the Act provides that 'The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished.' In Section 771.04 it is provided that 'No act hereafter done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this law.' It is also provided, in Section 771.08, that the law 'shall be liberally construed to effectuate the objects and purposes thereof and the public policy of the state as hereby declared.'
The purpose of the Act, as stated in the preamble, is, inter alia, to prevent the perpetration of frauds, exploitation and blackmail, for which unlawful purposes the remedies therein abolished had been theretofore used by unscrupulous persons. If, for no reason other than to 'effectuate the objects and purposes' of the Act and the public policy of the State, as therein declared, we would be constrained to hold that the Legislature intended to prohibit all civil actions for damages for the named wrongs, whether such wrongs were committed by one person or by two or more acting together. To hold otherwise would inevitably defeat the purpose of the Act, for reasons which are apparent.
However, not only because of the Legislative intent, as we construe it, but also under applicable principles of law, the instant action cannot be maintained.
The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff. Dr. P. Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So.2d 465; Martin v. Ebert, 245 Wis. 341, 13 N.W.2d 907, 152 A.L.R. 1142; Daniels v. Barker, 89 N.H. 416, 200 A. 410. Thus, it is generally held that an act which constitutes no ground of action against one person cannot be made the basis of a civil action for conspiracy. Allen v. Ramsey, 170 Okl. 430, 41 P.2d 658 666, 97 A.L.R. 1259; Martens v. Reilly et al., 109 Wis. 464, 84 N.W. 840, 843; Kamm v. Flink, 113 N.J.L. 582, 175 A. 62, 99 A.L.R. 1; Cooley on Torts, Fourth Edition, Volume 1, Section 74.
Since the right of action for alienation of affections no longer exists, a civil action for conspiracy based on such civil wrong cannot be maintained, unless the mere force of numbers, acting in unison, or other exceptional circumstances, gives rise to an independent wrong. In such case the conspiracy itself becomes the gist of the action. See DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 932; Neustadt v. Employers Liability Assur. Corp., 303 Mass. 321, 21 N.E.2d 538, 123 A.L.R. 134; Fleming v. Dane, 304 Mass. 46, 22 N.E.2d 609. See also the article in 11 Harvard Law Review, page 457 et seq.
As stated in DesLauries v. Shea, supra, 'There can be no independent tort for conspiracy unless in a situation 'where mere force of numbers acting in unison or other exceptional circumstances may make a wrong.' * * * And in order to prove an independent tort for conspiracy upon the basis of 'mere force of numbers acting in unison,' it must be shown that there was some 'peculiar power of coercion of the...
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