Radue v. Dill

• Decision Date: 03 November 1976
• Docket Number: No. 75--21,75--21
• Citation: 246 N.W.2d 507,74 Wis.2d 239
• Parties: Roger RADUE, Appellant, v. William C. DILL et al., Respondents.
• Court: Wisconsin Supreme Court

Page 507

246 N.W.2d 507

74 Wis.2d 239

Roger RADUE, Appellant, v. William C. DILL et al., Respondents.

No. 75--21.

Supreme Court of Wisconsin.

Argued Oct. 4, 1976.

Decided Nov. 3, 1976.

David L. Walther, John Sundquist and Walther & Halling, Milwaukee, for appellant.

James W. Mohr, Jr., and Whyte & Hirschboeck, S.C., Milwaukee, for respondents.

HANLEY, Justice.

The sole issue presented on this appeal is whether the complaint sets forth a cause of action.

In Wisconsin civil conspiracy has been defined as a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful. Mendelson v. Blatz Brewing Co. (1960), 9 Wis.2d 487, 490, 101 N.W.2d 805. The law of civil conspiracy is further characterized in this state by the following:

'It is the established law of this state that there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a conspiracy but none for the conspiracy alone. In a civil action for damages for an executed conspiracy, the gist of the action is the damages.' Singer v. Singer (1944), 245 Wis. 191, 195, 14 N.W.2d 43, 46.

The defendants' contention in support of the demurrer is simply that a conspiracy to give or to procure the giving of false testimony is not civilly actionable. The basis for this argument is the long established rule that statements made during investigatory proceedings and judicial proceedings are absolutely privileged, and therefore acts of perjury may not form the basis of a civil action for damages. Bergman v. Hupy (1974), 64 Wis.2d 747, 221 N.W.2d 898; Schultz v. Strauss (1906), 127 Wis. 325, 106 N.W. 1066. Such statements are privileged to promote the policy of encouraging witnesses to speak freely without fear of civil liability, and as a result perjury is an offense against the public only and subject only to the criminal law. The defendants argue that since overt acts pursuant to the conspiracy are necessary, there can be no civil action where, as in this case, the only overt acts are privileged acts of perjury. They apparently reason that an act which constitutes no ground of an action when done by one alone cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several.

Although this court has never considered the question, the courts of other jurisdictions have uniformly held that a plaintiff may not, by claiming conspiracy, avoid the doctrine that there is no civil action for perjury. Platts v. Platts (1968), 73 Wash.2d 434, 438 P.2d 867; Annot., Actionability of Conspiracy to Give or to Procure False Testimony or Other Evidence. 31 A.L.R.3d 1423 (1970). These decisions reveal two basic grounds upon which the courts have relied to void this type of action. The first ground is, of course, that privileged acts of perjury may not form the basis of any civil action. The second ground relied upon is that there may be no action for civil conspiracy unless the overt acts causing damage are actionable themselves. See Platts v. Platts, supra, at p. 439, 438 P.2d 867.

The plaintiff, however, bases his claim for relief upon two arguments, which He contends, distinguish this case from those of other jurisdictions. First, plaintiff claims that an exception to the general rule against civil actions for conspiracy to commit perjury exists and applies here where the perjury is merely a step in the accomplishment of a larger plan. Second, plaintiff claims that sec. 134.01, Stats., creates a civil cause of action for conspiracy alone.

An action for conspiracy will lie where the perjury is merely a step in the accomplishment of a larger plan. Verplanck v. Van Buren (1879), 76 N.Y. 247. The instant case, however, does not fall within this rule. According to the complaint, the only acts complained of are privileged acts of giving false information, and while the plaintiff contends that these acts are only a part of the entire transaction, there is nothing alleged to show any other parts. These acts of perjury appear to be the entire plan. In each of the cases to which plaintiff points in support of his contention, there were either other acts in furtherance of the conspiracy besides the acts of perjury, or the action involved was one based not solely upon conspiracy but upon fraud and deceit. For example, in Verplanck v. Van Buren, supra, the defendants had not only perjured themselves but, as the court pointed out, more importantly had prepared fictitious contracts and made false entries into the books of account. In Frist v. Gallant (W.D.S.C.1965), 240 F.Supp. 827, the court held that the plaintiff's action charging the defendants with conspiracy to defraud could be based upon perjured testimony, provided all the necessary elements of fraud and deceit were proved. In the case now before this court the claim is one based solely upon an executed conspiracy, the only overt acts of which are the giving of false testimony.

We think, however, that the plaintiff has stated a cause of action which this court has consistently recognized arising from sec. 134.01, Stats., unchanged since 1889 (Ann. Stats., 1889, sec. 4466a), which states:

'Any 2 or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding $500.'

The basis for this conclusion is that the plaintiff has alleged the defendants combined for the purpose of injuring the plaintiff in his reputation, trade and profession.

The major thrust of the defendants' argument is that the overt acts which allegedly damages the plaintiff, the acts of perjury, are privileged and therefore not actionable. Where the acts causing damage are not actionable, the defendants conclude, there may be no civil action for the conspiracy.

Long ago, however, this court rejected the rule that no action may be maintained against the parties to a conspiracy for damages caused by acts...