Schultz v. Frankfort Marine Accident & Plate Glass Ins. Co.

• Decision Date: 07 January 1913
• Citation: 152 Wis. 537,139 N.W. 386
• Court: Wisconsin Supreme Court
• Parties: SCHULTZ v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO. ET AL.

152 Wis. 537

139 N.W. 386

SCHULTZ

v.FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO. ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1913.

Appeal from Circuit Court, Milwaukee County; L. W. Halsey, Judge.

Action by Anthony Schultz against the Frankfort Marine Accident & Plate Glass Insurance Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.W. B. Rubin and Chas. Friend, both of Milwaukee (Horace Walmsley, of Milwaukee, of counsel), for appellant.

Doe & Ballhorn and Paul D. Durant, all of Milwaukee, for respondents.

TIMLIN, J.

This action is against an employers' liability insurance company, its resident agent, Julius Bacher, Frederick P. Gordon, the manager of the Riemer National Detective Bureau, an incorporated private detective agency, and John Paczkowski, a private detective in the employment of said detective agency. The plaintiff, whose real name is Anton Sobjak, had a stepfather named Schultz, and he assumed the latter name, and has been known by it for about 18 years. He was a laborer 37 years of age, and, with his wife and four children, resided some distance from the business or downtown district in Milwaukee in a house about nine feet back from the sidewalk, having a hallway used as an entrance to plaintiff's and other apartments in the same house. He had been convicted of larceny once and pardoned, and had been addicted to strong drink. In an action for damages in which the insurance company defendant was interested as insurer, Anthony Schultz had been called as a witness, and testified on the part of the plaintiff. There was in that case a verdict for the plaintiff, and a motion for a new trial was pending therein in March, 1910. The defendants are charged in the complaint with a conspiracy for the purpose of annoying, harassing, and intimidating the plaintiff in order to get him to leave the city of Milwaukee, and refrain from testifying as a witness in said action, in case a new trial should be granted therein. It is averred that, for the purpose of carrying out this conspiracy and in furtherance thereof, the defendants caused the plaintiff to be followed and shadowed, keeping him under constant surveillance day and night, and also set men to watch plaintiff's home, and to eavesdrop upon his home, threatened him with great bodily violance, induced his employerto discharge him, and gave out and made known to plaintiff's neighbors that plaintiff was being watched and shadowed, threatened plaintiff with criminal prosecution, and gave out and threatened that they would cause him to disappear and be kidnapped; that defendants thereby falsely imprisoned the plaintiff, and restrained him of his liberty. It is then averred that, by reason of these wrongful acts, the plaintiff was put in great fear and mental anguish, and prevented from coming and going as he pleased, and his reputation and good name defamed, to his injury in all in the sum of $5,000.

The pleading is not well or skillfully drawn, but it is sufficient under the liberal rules of pleading obtaining in this state, and it is believed the foregoing is a fair synopsis of its contents. The defendants answered to the merits, denying the conspiracy and the wrongful purpose alleged, admitted that the defendant Bacher, for and on behalf of the defendant insurance company, employed the said detective agency to keep watch of the plaintiff, and that the defendant Paczkowski, under directions of and as an employé of this detective agency, did watch the plaintiff. On the part of the plaintiff evidence was introduced tending to show that the insurance company employed the detective agency, that Bacher and Gordon took part in discussing the subject, and that the defendant Gordon, representing the detective agency, advised rough and open shadowing of the plaintiff, and that this kind of shadowing was employed to the knowledge of all the defendants and with their consent. Rough shadowing means that those engaged in so doing are not obliged to conceal the fact that the subject of surveillance is being shadowed or followed, but it is done so openly that the subject or the general public or both may know of it. The employés of the detective agency were told by defendant Gordon to do open or rough shadowing in this case, as he states, upon the presumption that plaintiff would know he was being shadowed, and it would have the moral effect on him of keeping him in town. It appeared that the defendant Paczkowski, an employé of the detective agency, co-operating with another employé of this agency named Heyer, about March 7, 1910, as directed by the defendant Gordon, with the consent and at the instigation of the defendant Bacher and the insurance company, took up the work of shadowing the plaintiff. There is testimony offered on the part of the plaintiff tending to show that these two employés of the said detective agency were acting together in pursuance of a common purpose, were under the directions of Gordon, manager of the agency who contracted for this purpose with the insurance company through Bacher and another agent of that company, and they made daily reports to Gordon, who transmitted them to the representatives of the insurance company, so that all defendants were at all times operating and acting and counseling together in pursuance of a common design, and with a common purpose. Heyer, while occupying this attitude to plaintiff, entered plaintiff's house unbidden, threatened the plaintiff, entered plaintiff's yard, and one or both intruded upon plaintiff's premises several times, tiptoeing into the hall, apparently listening at the doors, and retreating when the doors were opened. The plaintiff said: “They kept coming and annoying us day by day. They kept opening the doors, the hallway doors, five or six different times, and looking into the hallway. They opened doors on different days. When he (Heyer) opened the door, he would say, ‘Get in there.’ He would look smiling when he said, ‘Get in there.’ ” The other man, Paczkowski, told the plaintiff that, if he would not go out of town, he would fix him up. Heyer also told the plaintiff he was under arrest. Heyer carried a “gun” in his hip pocket. Paczkowski was seen by the witness Robanski eavesdropping on the stairway leading into plaintiff's house at 11 o'clock p. m. Pinkolski also saw them, and they made themselves and their watch in front of plaintiff's house so constant, conspicuous and notorious that on one occasion a crowd of some 200 persons collected and threatened violence. According to Polaski, Heyer, while engaged in watching, told the witness he was watching Tony Schultz, and there was some silverware missing from a boat, and Heyer showed witness a star, and said, “He (Schultz) is in arrest.” This witness also saw Heyer go into Schultz's house, and saw the crowd assembled. Mary Denbowski lived in the next house to plaintiff, and she gave similar testimony of acts which the jury under proper instructions might have found to constitute eavesdropping.

From the beginning of this rough shadowing so called the plaintiff was followed openly and persistently by two detectives, who made daily reports to the defendant Gordon, manager of the detective agency, and these reports were by the latter turned over to the insurance company and Bacher. After calling the attention of all the plaintiff's neighbors to the fact that he was being watched, threatening him, eavesdropping upon his premises, and making themselves unnecessarily conspicuous passing up and down on the sidewalk in front of his house, they were requested to let the man alone, and were told that they were annoying him; that he was complaining of their presence. The subordinate detectives refused to do so, and told Mr. Foster, who made the request, that it was none of his business. Mr. Gordon as a witness on the stand meets that situation in this way: “Answer: I don't believe I gave much thought to any instructions that the men may have said they received from you and Foster. We were hired to do what we were asked to do, and we did it.” Mr. Foster, an attorney at law employed in Mr. Rubin's office, went out to the residence of the plaintiff on Greenbush street several times and remonstrated against this treatment of plaintiff. The last time he went for the purpose of bringing the plaintiff downtown to Rubin's office. When Foster and the plaintiff started, these two detectives followed, entered the same street car, and followed them into the Plankinton House, where Mr. Foster went to use the telephone, from there onto the street, from there into Mr. Rubin's office, where Schultz was attempting to consult with his attorney, being brought there by Mr. Foster for that purpose. Paczkowski entered the office, was requested by Rubin to leave, but did not leave at once upon such request. After a short time he went out in the hall, and remained near the door, and Mr. Rubin came out and ordered him away, when an affray took place between this man and Rubin. Mr. Rubin, Mr. Foster, and Mr. Schultz then went to the police headquarters of the city of Milwaukee for the purpose of making complaint against this annoyance, and the detective followed them there, there appeared Mr. Gordon, and there they were refused protection by the lawful police of the city on the absurd ground that the detective agency was incorporated. They then began this action by service of a summons and affidavit for examination, and the defendants or some of them had a meeting, and resolved to continue the rough shadowing after the affidavit was served upon them, and they did so.

[1] A verdict was directed for the defendants, and the appellant contends this was error. His counsel is somewhat vague with reference to what particular rule of law existing for the protection of persons was breached by the acts and combination of defendants, and suggests that the combination and conduct complained of was for the purpose of carrying...