Singer v. Singer

• Decision Date: 14 April 1944
• Citation: 14 N.W.2d 43,245 Wis. 191
• Parties: SINGER v. SINGER et al.
• Court: Wisconsin Supreme Court

245 Wis. 191

14 N.W.2d 43

SINGER

v.SINGER et al.

Supreme Court of Wisconsin.

April 14, 1944.

Appeal from an order of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Reversed.

Angeline F. Singer, plaintiff, commenced this action on July 3, 1943, against Anthony A. Singer, Max Singer and Catherine Fuerstenberg, defendants, to recover for damages sustained by her as a result of a willful conspiracy among the defendants. The defendants, Max Singer and Catherine Fuerstenberg, answered. Anthony A. Singer, husband of the plaintiff, demurred to the complaint. From an order dated November 8, 1943, sustaining the defendant Anthony A. Singer's demurrer, the plaintiff appeals.

The facts will be stated in the opinion.

Rubin, Zabel & Ruppa, of Milwaukee (Wm. B. Rubin, of Milwaukee, of counsel) for appellant.

Dougherty, Arnold & Kivett, of Milwaukee (Alfred E. Fein, of Milwaukee, of counsel), for respondents.

ROSENBERRY, Chief Justice.

The complaint alleges that the plaintiff is the wife of the defendant, Anthony A. Singer; that the defendants, Anthony A. Singer and Max Singer, are brothers jointly engaged in various business enterprises; that the defendant, Catherine Fuerstenberg, is an office employe of the other defendants. It is then alleged that the plaintiffand defendant, Anthony A. Singer, were living together as husband and wife, enjoying each other's confidence, until the defendant, Catherine Fuerstenberg, practiced her wiles upon the husband and carnally associated with him as plaintiff is informed and verily believes, and thereby alienated his affections from the plaintiff.

That on or about the 1st day of June, 1939, the plaintiff discovered the illicit and clandestine relations between her husband and Catherine Fuerstenberg. Thereafter the there defendants entered into an unlawful conspiracy to willfully and wickedly terminate the marriage contract and relations between the plaintiff and her husband, and by various means of artifice and coercion for plaintiff to bring an action for divorce against the defendant Anthony A. Singer, so that he might be free to marry Catherine Fuerstenberg.

That the following over acts are alleged:

‘(1) Defendant Anthony A. Singer, with the knowledge and consent of and urged by his co-defendants, did, on numerous occasions, beg the plaintiff to institute an action for and obtain a divorce;

‘(2) That defendant Max Singer, on occasions, after the 1st day of June, 1939, and prior to the commencement of this action, willfully and wrongfully urged her and advised her to sue Anthony A. Singer for divorce;

‘IV. (3) That defendant Catherine Fuerstenberg did, on numerous occasions, prior to the commencement of this action, enter the home of the plaintiff without her consent and permission, and by the direction of defendant Anthony A. Singer compelled the plaintiff to wait on her as her servant, much to the plaintiff's discomfort and unhappiness;

‘(4) That the defendant Anthony A. Singer, with the knowledge and approval of the other defendants, set up the defendant Catherine Fuerstenberg in her present home, lavished and still does lavish on her various expenditures, and for the last two years and more has stayed away from home the greater part of every night, and on information and belief alleges spending his time with defendant Catherine Fuerstenberg, and the defendant Catherine Fuerstenberg, taking delight in taunting and aggravating the plaintiff by reason of her husband's conduct towards her;

‘(5) That defendant Anthony A. Singer, on numerous occasions since June 1, 1939, in the presence of the children, did call plaintiff vile names and wrongfully accused her of infidelity, and on information and belief alleges the same was done with the knowledge and approval of the other defendants;

‘(6) That on numerous occasions since the 1st day of June, 1939, defendant Anthony A. Singer has beaten her up, inflicting bodily injuries;

‘(7) That the defendant Catherine Fuerstenberg has charge of the management of defendant Anthony A. Singer's financial affairs, and she caused the defendant Anthony A. Singer to provide the plaintiff with only the bare necessities, refusing to buy her clothing, keeping her in a constant state of beggary;

‘(8) That on the 26th day of June, 1943, defendant Anthony A. Singer and Max Singer did unlawfully assault, beat and hit the plaintiff in the face, mouth and nose, causing her severe damage to her person and great pain of body and mind, and on information and belief alleges same was done with the knowledge of defendant Catherine Fuerstenberg;

‘(9) That since the 1st day of June, 1939, large sums of money were spent by the defendants for the medical care and operations upon the defendant Catherine Fuerstenberg;

‘(10) Plaintiff alleges on information and belief that defendants have, on numerous occasions, spread false rumors concerning the plaintiff, claiming that she was suffering from mental ailment and should be removed to an insane asylum, and defendant Anthony A. Singer threatened to have her committed unless she obtained a divorce;

‘(11) That on public occasions defendant Anthony A. Singer would force the plaintiff to witness his attentions to defendant Catherine Fuerstenberg, all aided and abetted by defendant Max Singer.

‘V. That by reason of the premises the plaintiff has suffered damage in the amount of $25,000.00.’

The defendant husband demurred to the complaint on the sole ground that it did not state facts sufficient to state a cause of action as to him. The trial court said:

‘The mere enumeration of these claimed ‘overt acts' demonstrates the narrow scope of the actual cause of action as one for an unlawful conspiracy for the alienation and loss of the affection and society of plaintiff's husband.’

It is considered that the cause of action stated is not one for the alienation of the affections of the husband. At the time this action arose, according to the allegations of the complaint, the affections of the defendant husband had previously been alienated. From the complaint it appears that thereafter the defendants entered into the conspiracy. The overt acts alleged were according to the allegations of the complaint committed by the several defendants pursuant to the conspiracy to harass, annoy and abuse the plaintiff in order to compel her for her own peace of mind to bring an action for divorce so that the defendant husband and Catherine Fuerstenberg might marry.

The question for decision is, can the action be maintained by a wife against her husband? This requires us to consider briefly the nature of a so-called action for conspiracy. It is the established law of this state that there is so 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. The combination is of no consequence except as bearing upon admissibility of evidence. Jones v. Monson, 1909, 137 Wis. 478, 485, 119 N.W. 179,129 Am.St.Rep. 1082;City of Milwaukee v. Drew, 1936, 220 Wis. 511, 525, 265 N.W. 683, 104 A.L.R. 1387.

It is quite generally held that an allegation that the defendants conspired is necessary in order to subject to liability those defendants who did not directly participate in the commission of...