National Park Bank of New York v. Louisville & N.R. Co.

• Decision Date: 01 February 1917
• Docket Number: 8 Div. 838
• Citation: 199 Ala. 192,74 So. 69
• Court: Alabama Supreme Court
• Parties: NATIONAL PARK BANK OF NEW YORK v. LOUISVILLE & N.R. CO.

74 So. 69

199 Ala. 192

NATIONAL PARK BANK OF NEW YORK v. LOUISVILLE & N.R. CO.

8 Div. 838

Supreme Court of Alabama

February 1, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by the National Park Bank of New York against the Louisville & Nashville Railroad Company. Demurrers to the several counts of the complaint were sustained, and plaintiff took a nonsuit, and appeals. Judgment sustaining the demurrers affirmed.

Percy Benners & Burr, of Birmingham, Callahan & Harris, of Decatur and Louis F. Doyle, of New York City, for appellant.

Gregory L. Smith, of Mobile, and John C. Eyster, of New Decatur, for appellee.

THOMAS J.

On former appeal count 5 was held subject to demurrer. L. & N.R.R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003.

On the second trial, count 5 was amended, and counts A, B, C, D, E, F, and G were added, seeking to recover damages arising out of an alleged conspiracy between Knight, Yancey & Co., and one of the defendant's agents. Counts H, I, J, and K sought to recover for a fraud alleged to have been perpetrated on the part of defendant's agents, acting within the line and scope of their authority, and with Knight, Yancey & Co., that estopped the defendant to deny liability. Demurrer was sustained; plaintiff took a nonsuit, and prosecutes this appeal.

The rule prevailing in this state is that, where there are several grounds of demurrer, some of which are sufficient and others insufficient, and the judgment sustaining the demurrer is general, the ruling will be referred to the grounds that are well taken. Steiner v. Parker & Co., 108 Ala. 357, 19 So. 386; Tatum v. Tatum, 111 Ala. 209, 20 So. 341; Richard v. Steiner Bros., 152 Ala. 303, 44 So. 562; McDonald et al. v. Pearson, 114 Ala. 630, 641, 21 So. 534; Hull v. Wimberly & Thomas Hdw. Co., 178 Ala. 538, 59 So. 568.

The insistence of appellant's counsel is as follows:

"In the outset we wish to impress upon the court that the complaint under consideration is not based upon any right to recover, either under the common law or our statute, upon the issuance alone of the bills of lading by an agent of the company. We recognize that under our decisions the issuance by an agent of a bill of lading covering goods not received for shipment has been held to be ultra vires and not binding the railroad company. We have attempted in drawing the amendment to the complaint to aver clearly, more fully in some counts than in others, the doing by the defendant of a series of acts or a single act in furtherance of the system contemplated by the conspiracy, and that a system or general course of conduct thus made possible through furtherance of the conspiracy was the proximate cause of the plaintiff's damage."

As preliminary to the consideration of the conspiracy counts, we may state the general rule of conspiracy in civil cases, where a corporation has participated:

(1) If the conspiracy is properly alleged, and there is also alleged the doing by one of the conspirators of the unlawful act pursuant to the conspiracy, which resulted in the damage, the act so done by any of the participants in pursuance of the original plan and with reference to the common object, is in contemplation of the law the act of all. Smith v. State, 52 Ala. 407; Jordan v. State, 79 Ala. 9; Williams et al. v. State, 81 Ala. 1, Amos v. State,

83 Ala. 1; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91; Ex parte Bonner, 100 Ala. 114, 14 So. 648; McLeroy v. State, 120 Ala. 274, 25 So. 247; Sheppard v. State, 172 Ala. 363, 55 So. 514; Watson v. State, 181 Ala. 53, 61 So. 334. In Carlton v. Henry et al., 129 Ala. 479, 29 So. 924, this court said:

"A doctrine applicable to civil as well as criminal cases is that where two persons enter into a combination to do an unlawful act, whatever is done by one as the proximate consequence of furthering the main purpose of the conspiracy, whether specifically included in that purpose or not, is the act of both and binds both to responsibility." Cooley on Torts, § 143; 8 Cyc. 645.

That is to say, each conspirator is responsible for everything done by his confederates which the execution of the common design makes probable in the nature of things as a consequence, even though such a consequence was not intended as a part of the original design or common plan. Jones v. State, 174 Ala. 53, 57 So. 31; Martin v. State, supra; Gibson v. State, supra; Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am.St.Rep. 17; Griffith v. State, 90 Ala. 583, 8 So. 812; Morris' Case, 146 Ala. 66, 41 So. 274; Ferguson v. State, 149 Ala. 21, 43 So. 16. The act, however, must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not an independent product of the mind of one of the confederates outside of or foreign to the common design (Martin v. State, supra, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91, and note; Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 53 L.R.A. 245; State v. Taylor, 70 Vt. 1, 39 A. 447, 42 L.R.A. 673, 67 Am.St.Rep. 648), nor a result growing out of the individual malice, motive, or purpose of the perpetrator, having no relation to the business of the master (Republic I. & S. Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. 1915F, 516; Martin v. State, 89 Ala. 115, 8 So. 23, supra; 18 Am.St.Rep. 91, and note; Spencer v. State, 77 Ga. 155, 3 S.E. 661, 4 Am.St.Rep. 74; Powers v. Com., supra).

(2) An action may be maintained against a corporation for damages caused by a conspiracy in which it participated.

(3) To bind a corporation for damages caused by such conspiracy, it is not necessary for the officers or agents through whom the corporation acts and did act to have had authority to perform all of the acts done in the execution of the conspiracy, or agreed to be performed by other confederates in the execution of the conspiracy; but

(4) That, as to any essential act which the conspiracy contemplated and which it was agreed that the agent of the corporation should do, it is necessary that such act agreed upon by the corporation be in fact done by its agent for such corporation, and that, while so doing, the agent was acting within the line and scope of his employment by such corporation and in the prosecution of its business. That is to say, the act agreed to be performed by the agent of the corporation must have been within the line and scope of his agency and of the master's business, and essential or necessary to the accomplishment of the end of the conspiracy, and have been in fact done by such agent pursuant to the conspiracy.

A conspiracy is not completed without its execution to damnifying results. Those participating to that end only are responsible. There is always a place of repentance--a locus poenitentiae--ever left to a conspirator, so that before the act is done, either of the parties thereto may abandon the design and avoid committing the unlawful act, or the lawful act by the unlawful means agreed upon. A conspirator withdrawing cannot be held responsible for the wrongful act of his former confederates. In such case, it is their act, and not his. State v. Webb, 216 Mo. 378, 115 S.W. 998, 20 L.R.A. (N.S.) 1142, 129 Am.St.Rep. 518, 16 Ann.Cas. 518; United States v. Britton, 108 U.S. 199, 2 Sup.Ct. 531, 27 L.Ed. 698. If a corporation's agent, having confederated for it, thereafter exercises the right of locus poenitentiae, declining to aid or participate further in the conspiracy to do the agreed act pursuant thereto, and does not contribute to the plaintiff's damage, neither such agent nor his principal can be held for the damnifying consequences. In such case the act would be that only of the participating, inciting, and encouraging confederates present, and of the participating confederates who were not present. State ex rel. Attorney General v. Tally, as Judge, etc., 102 Ala. 25, 63, 65, 15 So. 722; State v. Hamilton & Laurie, 13 Nev. 386. For it is well established that no cause of action arises from a mere agreement to commit a wrong against another.

There must be some wrongful act performed that was necessary to, and concurring in, the proximate cause of the injury to the person suing, or of the damage for which the suit is brought. L. & N.R.R. Co. v. National Park Bank, supra; Schwab v. Mabley, 47 Mich. 572, 11 N.W. 390; Hutchins v. Hutchins, 7 Hill (N.Y.) 104; Commercial U.A. Co. v. Shoemaker, 63 Neb. 173, 88 N.W. 156; Cooley on Torts, 142, 144; 2 Hilliard on Torts, § 17, p. 256; 8 Cyc. 645; 4 Ency.Pl. & Pr. 737. The act need not be the sole proximate cause of the injury, but a concurring proximate cause thereof.

As to the pleading in civil actions for damages the result of the execution of conspiracy we may note that actions on the case have taken the place of the writ of conspiracy (Mott v Danforth, 6 Watts [Pa.] 306, 31 Am.Dec. 468; Parker v. Huntington, 2 Gray [Mass.] 127; Stevens v. Rowe, 59 N.H. 578, 47 Am.Rep. 231; Jones v. Baker, 7 Cow. [ N.Y.] 445); that the insertion in the complaint of an averment, that the acts done were in pursuance of a conspiracy, does not change the nature of the action on the case (Strout v. Packard, 76 Me. 156, 49 Am.Rep. 601; Van Horn v. Van Vorn, 56 N.J.Law, 318, 28 A. 669; Kimball v. Harman, 34 Md. 407, 6 Am.Rep. 340; Parker v. Huntington, supra; Schultz v. Frankfort Co., 151 Wis. 537, 139 N.W. 386, 43 L.R.A.[ N.S.] 520; 5 Ruling Case Law, 1103; 8 Cyc. 673). The acts complained of, however, must be definitely and accurately stated, so that, if the facts themselves should be admitted the court can draw a legal conclusion therefrom--thus the illegal purpose or means, which...