Robinson v. Van Hooser

• Decision Date: 07 May 1912
• Docket Number: 2,207.
• Citation: 196 F. 620
• Parties: ROBINSON et al. v. VAN HOOSER.
• Court: U.S. Court of Appeals — Sixth Circuit

196 F. 620

ROBINSON et al. v. VAN HOOSER.

No. 2,207.

United States Court of Appeals, Sixth Circuit.

May 7, 1912

This is a proceeding to reverse a judgment of $2,500 recovered by defendant in error (hereinafter called plaintiff) against plaintiffs in error (19 in number, and hereinafter called defendants). Plaintiff was the owner of a farm of 100 acres in Christian county, Ky., on which he resided with his family for over 25 years. In June, 1909, he removed with his family to Tennessee. Among the products of the farm was that of tobacco known as dark leaf tobacco, which is grown in a limited area consisting of Christian, Trigg, and Todd counties of Kentucky, and some adjacent counties of Tennessee. Plaintiff alleged, in substance, in his petition that certain societies composed of large numbers of persons engaged in raising and handling dark tobacco were formed and known by the names of 'Farmers' Union or Equity Societies," and popularly called 'Night Riders' that their object was to create a monopoly in and enhance the price of tobacco by procuring the active co-operation and support of purchasers, handlers, and dealers therein; that such co-operation was also brought about by compelling persons through fraud and unlawful force to join the societies, and as to such as failed or refused to join and actively co-operate, resort was had to assaulting and killing them, and committing trespasses upon and destroying their property; that the persons so engaged had places of meeting were bound together by pledges and oaths, and used secret signs and passwords to make themselves known to one another that the defendants (21 originally, but 2 were dismissed) and others in his neighborhood joined the association, and plaintiff was solicited to join, and pool or pledge his tobacco and co-operate with them in carrying out purposes and committing acts such as stated; that defendants and others conspired and confederated together and organized a secret criminal society which was sometimes called the 'Farmers' Union,' sometimes the 'Silent Brigade,' and sometimes the 'Night Riders'-- establishing lodges in Christian county, electing officers with titles of 'General,' 'Colonel,' and 'Captain'-- and upon initiation into such lodges or societies each member was bound by and took an oath promising in the presence of God that he would never reveal any of the secrets, signs, or passwords of the order, or any of the directions of the society to others than members thereof, and that he would obey all orders and every summons coming therefrom; that the defendants also unlawfully conspired, combined, and confederated together for the purpose of committing trespasses upon plaintiff's land and of assaulting him and putting him in fear and terrifying him, threatening to kill him and destroy his property, and of so compelling him to join the societies and pool his tobacco; that in December, 1908 (which time subsequently appeared by the evidence to be February 9, 1909), pursuant to this unlawful combination and conspiracy, defendants went to plaintiff's home armed with guns and other weapons and assaulted him, and took him into custody and compelled him to go into the woods and take the oath before mentioned; that he did not in fact co-operate with them, and, on the contrary, joined a Law and Order League at the city of Hopkinsville, which had for its object the preservation of the public peace and the enforcement of the laws; that, when his membership in the Law and Order League became known to defendants, they on divers occasions in 1909, including June of that year, pursuant to and in furtherance of said criminal combination and conspiracy, went to his home, and in a threatening, violent and hostile manner, with force and arms, maliciously assaulted him and his minor son and terrified him and his wife and children, and so forced him to leave his farm and home and flee for safety; and that he suffered great distress and mental anguish and humiliation, to his damage in the sum of $30,000.

A motion was made by defendants to strike from the petition the allegation that he suffered great distress and mental anguish and humiliation, and also to make the petition definite with reference to his alleged pecuniary loss. The motion was overruled touching the former but granted as to the latter; and thereupon an amendment was filed with a bill of particulars fixing his pecuniary losses at $3,125. He there alleged in effect that on or about June 22, 1909, by reason of the conduct of defendants, pursuant to the conspiracy entered into by them as set out in his petition, he suffered damages, etc., as stated in the petition.

In the answer the defendants traversed the allegations of the petition and amendment, but averred that in Christian county there were two organizations known respectively as the 'American Society of Equity' and the 'Dark Tobacco Growers' Association,' stating, however, that those societies or any other existing in that county or any of the other counties named in the petition had for their object the creation of a monopoly in the raising, handling, or selling of tobacco, or the compelling of persons to join any of the societies, etc.

R. A. Miller (Charles S. Walker and W. T. Fowler, on the brief), for plaintiffs in error.

G. W. Jolly and B. G. Adcock (W. L. Krone, on the brief), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

It is contended that material errors occurred at the trial, through misconception of the nature of the action. It is said that the court in effect instructed the jury that the gist of the action is the conspiracy, instead of the damage sustained by reason of it. But the charge does not admit of the interpretation that it was necessary to prove the conspiracy only. The resulting damages alleged were associated with the action and the trial throughout. The court on motion of defendants required plaintiff to amend his petition by making his claim for damages definite and filing a bill of particulars; and in the charge compensatory damages in respect of loss on farm, crops, and stock are considered and explained in connection with the subject of conspiracy; and the subject of punitive damages is also considered. The charge is, therefore, not open to the objection, so often considered by the courts and text-writers, that the plaintiff might recover upon averment and proof simply of a conspiracy. It was not important that the trial court should either define the suit by name, or instruct the jury as to any particular order in which it should consider the evidence touching the damage and the conspiracy; nor was it of practical consequence which subject required the greater attention, so long as both were clearly explained. For example, whether the suit be called an action upon the case in the nature of a conspiracy against defendants for combining to injure plaintiff in his person and property (Laverty v. Vanarsdale, 65 Pa. 507, 509) or an action of tort for a conspiracy so to injure him in person and property (Emmons v. Alvord, 177 Mass. 466, 468, 59 N.E. 126), cannot change the nature of the action or the kind or degree of proof required of the plaintiff. Since to hold defendants liable in actions like this it is necessary to prove a combination and united action on their part, the conspiracy averments afford a convenient means of alleging such combination and action, but this does not dispense with the necessity for averment and proof of damage, and we do not understand the trial court to have said so. Boston v. Simmons, 150 Mass. 461, 463, 23 N.E. 210, 6 L.R.A. 629, 15 Am.St.Rep. 230; Hundley v. Louisville & Nashville R.R. Co., 105 Ky. 162, 168, 48 S.W. 429, 63 L.R.A. 289, 88 Am.St.Rep. 298; Hutchins v. Hutchins, 7 Hill (N.Y.) 105, 107, 109; Martens v. Reilly, 109 Wis. 464, 473, 84 N.W. 840; Adler v. Fenton, 24 How. 407, 410, 16 L.Ed. 696; Place v. Minster, 65 N.Y. 89, 95.

Another error assigned grew out of what was called in the charge a 'secondary or subsidiary conspiracy,' which it is said was not alleged. This complaint is based on certain testimony of plaintiff concerning a notice fastened to a thorn switch and placed on the porch of his home on the night of June 17, 1909, by two persons, one of whom was recognized and is a defendant. The notice was addressed to plaintiff's son and it charged him with 'talking too much to suit us,' stating 'you have got to leave this country or be killed. * * * We will give you until Monday morning to leave. * * * But mind and don't forget to leave by Monday morning. (Signed) Night Riders. ' In the opinion denying the motion for a new trial, the learned trial judge states that 'for want of a better name' he spoke of what led up to the occurrence when the thorn switch was placed on plaintiff's premises 'as a sort of subsidiary or secondary conspiracy. ' We are disposed to hold that the notice and testimony concerning it were admissible under the pleadings. It seems to us that the conspiracy alleged was continuous. As pointed out in the statement, it is, in substance, alleged in the original petition that, after it became known that plaintiff had become a member of the Law and Order League, defendants on divers occasions, among which the month of June (1909) is named, pursuant to and in furtherance of the combination, conspiracy, and confederacy 'hereinbefore described,' went to plaintiff's home and threatened him and his wife and children, etc., and again in the amendment to the petition it is averred that on or about June 22, 1909, plaintiff was by reason of the conduct of defendants, 'pursuant to the conspiracy entered into by them as therein set forth (i.e., the petition),...