Martin v. Ebert

• Decision Date: 14 April 1944
• Citation: 245 Wis. 341,13 N.W.2d 907
• Parties: MARTIN v. EBERT et al.
• Court: Wisconsin Supreme Court

245 Wis. 341

13 N.W.2d 907

MARTIN

v.EBERT et al.

Supreme Court of Wisconsin.

April 14, 1944.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed.

This action was begun on June 28, 1940, by George C. Martin, plaintiff, against Charles J. Ebert, Jacob J. Schaefer, J. E. Normandin, Peter L. Hoffman, Peter T. Schoemanna and Frank Clark, defendants, to recover damages for injuries growing out of an assault and battery committed upon the plaintiff. The issues were submitted to the jury. The jury returned its verdict finding in favor of the plaintiff, upon which judgment was entered on September 2, 1943, from which the defendants appeal.

Other facts will be stated in the opinion.

Padway & Goldberg and David Previant, all of Milwaukee, for appellants.

P. F. Leuch and Tibbs & Tibbs, all of Milwaukee, for respondent.

ROSENBERRY, Chief Justice.

After stating the residence and business of the parties and setting forth that the plaintiff was employed by one Anton Wendling to do work upon the premises owned by Leo W. Lukoski, which operations it is alleged the defendants had determined to halt by any fair or foul means, plaintiff in his complaint alleges:

‘(9) Plaintiff is informed and verily believes and, upon such information and belief alleges the fact to be, that the defendants herein, on or about the 28th day of October, 1939, formed a conspiracy to prevent any further progress looking toward the completion of said job at 7208 West Fond du Lac avenue, Town of Granville, Milwaukee County, Wisconsin; and pursuant to such conspiracy theretofore formed by the defendants, on said 28th day of October, 1939, at about 1:30 p.m., while plaintiff was on a scaffold five feet high, engaged in his lawful occupation as mason on the job at the aforesaid premises, your plaintiff was set upon and brutually assaulted by the defendants and co-conspirators.

‘(10) Plaintiff alleges that pursuant to the said conspiracy theretofore formed by the defendants herein to halt the construction operations on the job at the aforesaid premises, while he was on the scaffold, as aforesaid, performing his duties as mason, your plaintiff was attacked by one of the defendants and co-conspirators, which assailant's fist struck your plaintiff's face, causing his head to strike with great force and violence against the wall of the building on which he was working as such mason; that, as your plaintiff tried to regain his position on the scaffold, said assailant again struck him with his first; that, immediately thereafter, your plaintiff was again struck on the back of his head by a brick or other implement unknown to your plaintiff flung from the rear by a second assailant, who was one of the defendants and co-conspirators; that thereafter, as your plaintiff endeavored to crawl off the scaffold, his first assailant struck him mercilessly with the flat side of a brick on top of your plaintiff's head, whereupon your plaintiff was rendered unconscious from said blow and fell from said scaffold to the ground and suffered a broken skull and numerous other bodily injuries.’ The injuries sustained as a result of the assault are fully described.

Upon this appeal the defendants' basic contention is that because of the allegations contained in the complaint to the effect that the defendants acted pursuant to a conspiracy, no recovery could be had unless a conspiracy was established and found by the jury. This contention cannot be sustained.

The gist or gravamen of a civil action for conspiracy is not the conspiracy itself but is the civil wrong which is done pursuant to a conspiracy and which results in damage to the plaintiff. Wachowski v. Lutz, 1924, 184 Wis. 584, 594, 201 N.W. 234.

Alleging that certain persons have entered into a conspiracy does not in and of itself allege a cause of action and in any except exceptional circumstances it need not be alleged in order to impose liability for the wrong on all who have conspired to commit it. Judevine v. Benzies-Montanye Fuel & Warehouse Co., 1936, 222 Wis. 512, 269 N.W. 295, 106 A.L.R. 1443. See also 15 C.J.S., Conspiracy, p. 1037, § 25 and cases cited.

In a civil action for damages for an executed conspiracy, the gist of the wrong is the damages. The combination may be of no consequence except as bearing upon rules of evidence. Jones v. Monson, 1909, 137 Wis. 478, 119 N.W. 179,129 Am.St.Rep. 1082.

Whether a conspiracy exists may determine what persons are liable for the injuries inflicted. The distinction between liability for civil and criminal conspiracy must always be borne in mind. In a civil action for damages instituted for conspiracy, the gist of the action is the damage; while in a criminal prosecution for conspiracy, the gist of the action is the conspiracy. Martens v. Reilly, 1901, 109 Wis. 464, 84 N.W. 840, 844.

In that case, it was said: ‘The unlawful act would have been actionable if no one had been concerned in it but Mrs. O'Connor. The others combined with her to do such unlawful act. The object of the combination was accomplished and there was resulting damage to plaintiffs. So the case fits the legal test at every point. The damage stands out significant, independent of the combination. The combination connects all parties with the damage that were guilty participants in the wrong.’

The precise question raised by the contention of the defendants was disposed of adversely to them in Kile v. Anderson, 1924, 182 Wis. 467, 196 N.W. 762. That was an action for conspiracy for fraudulently and maliciously procuring the suspension of a pastor from the church. It was held that a finding that there was no conspiracy did not negative the liability of the individual defendants for the wrongful acts done, and further, that the allegations of the conspiracy in the complaint may be regarded as matters of aggravation or inducement and as not necessary to be proved.

In Gatzow v. Buening, 1900, 106 Wis. 1, 81 N.W. 1003,49 L.R.A. 475, 80 Am.St.Rep. 1, the jury found there was a conspiracy and that the acts complained of were...