W. G. Platts, Inc. v. Platts, s. 39027

• Decision Date: 28 March 1968
• Docket Number: 39028,Nos. 39027,s. 39027
• Court: Washington Supreme Court
• Parties: , 31 A.L.R.3d 1413 W. G. PLATTS, INC., a Washington corporation, Appellant, v. Charles W. PLATTS and Hazel Pauline Platts, his wife, and Ruthine Guess Kennedy, Respondents. W. G. PLATTS, INC., a Washington corporation, and Willard G. Platts, Individually, Appellants, v. Charles W. PLATTS and Hazel Pauline Platts, his wife, and Ruthine Guess Kennedy, Respondents.

Page 434

73 Wn.2d 434

438 P.2d 867, 31 A.L.R.3d 1413

W. G. PLATTS, INC., a Washington corporation, Appellant, v. Charles W. PLATTS and Hazel Pauline Platts, his wife, and Ruthine Guess Kennedy, Respondents.

W. G. PLATTS, INC., a Washington corporation, and Willard G.

Platts, Individually, Appellants, v. Charles W. PLATTS and Hazel Pauline Platts, his wife, and Ruthine Guess Kennedy, Respondents.

Nos. 39027, 39028.

Supreme Court of Washington, Department 2.

March 28, 1968.

Farris, Bangs & Horowitz, Donald J. Horowitz, Seattle, for appellants.

Pebbles, Swanson & Lindskog, Ralph G. Swanson, Olympia, for respondents.

WARD, Judge. ^*

These consolidated actions had their origin in events which occurred in 1958, and which, during the past ten years, have blossomed and flowered into a total of seven civil actions, one criminal action, and now, the second appeal to this court. ¹ It may be questioned whether the metaphor 'blossomed and flowered' is apropos to events so filled with bitterness and ill will as the history of this lengthy dispute discloses. In our opinion, the disposition of these joint appeals does not require a round-by-round and blow-by-blow factual presentation of each of these many cases.

An understanding of the issues does require that we state the origin of the dispute and the basic precipitating facts.

On April 15, 1958, defendant Ruthine Guess Kennedy, who had been a trusted employee of W. G. Platts, Inc., ² was discharged. At that time, she held in her possession a check which had been signed by plaintiff Platts but was otherwise blank. She completed the check, making it payable to herself in the sum of $5,000, and cashed it on April 17, 1958. She then executed and recorded an assignment and quitclaim deed, conveying to plaintiff, Platts, her interest in her home, which she was buying on contract, and conveyed her household furniture to him by bill of sale. When the plaintiff received these instruments, he conveyed the home premises by warranty deed to the contract seller for reasons not apparent from the record.

On May 1, 1958, Platts caused the defendant, Kennedy, to be arrested and charged with misappropriating the $5,000. A jury acquired her of the charge on February 25, 1959. In a civil action, brought against Mrs. Kennedy in Thurston County, the plaintiff, Platts, Inc., also failed to recover the $5,000. Mrs. Kennedy's position apparently was that she had not misappropriated the $5,000, but that the transaction amounted to a valid sale to which plaintiff had agreed. Mrs. Kennedy then brought an action against Mr. Platts, individually, and in his corporate capacity for abuse of process and malicious prosecution, and obtained an out-of-court settlement. The amount paid to Mrs. Kennedy on such settlement is not of record.

Five subsequent civil actions, one in federal court and four in King County Superior Court, were brought by Platts and were based on the same basic facts mentioned above. In several of the actions, the plaintiff joined as defendants Charles W. Platts, a brother of plaintiff, and Charles' wife, Hazel. All five of these civil actions were dismissed. All but one of the five judgments of dismissal were final judgments. The two final actions were dismissed on the defendants' motions for summary judgment. The appeals now before this court are from the judgments entered dismissing these two final actions.

Although all of the five civil actions vary slightly in form and in the amount and items of damages claimed, all five set out two basic claims; namely (1) that Mrs. Kennedy had unlawfully misappropriated $5,000 of the funds of W. G. Platts, and (2) that plaintiff's brother, Charles, and his sister-in-law, Hazel, were in possession of information in 1958 which, if revealed during the criminal prosecution of Mrs. Kennedy and in the civil action to recover the $5,000 from Mrs. Kennedy, would have resulted in both the conviction of Mrs. Kennedy and the recovery of the $5,000.

Although they were present in court, neither Charles nor Hazel Platts was called to testify in the criminal action. The record shows that both were available for the taking of depositions in the civil action against Mrs. Kennedy for the recovery of the $5,000, but that no such depositions were taken in that action.

In the two final actions, now before this court on appeal, the plaintiff charged in identical language in the complaints:

(D)ue solely to the failure of her codefendants herein, namely, Charles W. Platts and Hazel Pauline Platts, his wife, * * * falsely declaring to one Hewitt Henry, the then Prosecuting Attorney of Thurston County, that they had no information as to the said Ruthine Guess, now Ruthine Guess Kennedy, having made the check referred to * * * above payable to her own order without the consent, knowledge or authority of plaintiff * * * Ruthine Guess Kennedy * * * (was) found not guilty.

At the hearing on defendants' motions for summary judgment dismissing the last two actions, the trial court, by stipulation, was permitted to consider the complete records in all of the preceding actions. Our examination of the records indicates that the trial court had before it nothing setting out what defendants Charles and Hazel Platts told the prosecuting attorney, except the allegations in plaintiff's complaints and the affidavit of the prosecuting attorney, in which he states in pertinent part:

That previous to said trial, I caused Charles and Hazel Platts to be subpoenaed to testify at the trial, based upon the statement heretofore signed by Hazel Platts on May 8, 1958. That Charles and Hazel Platts appeared at the trial, but contacted my office, and Hazel Platts qualified her statement, and stated to me that she would not want to testify for fear that if she did, she would place the defendant in prison. That as a result * * * I felt in my own opinion that her testimony would be useless * * *.

These last two actions, commenced in 1965, again restate the plaintiff's claim that Mrs. Kennedy misappropriated $5,000, but it is now admitted that relitigation of the $5,000 claim against her is forever foreclosed. It is plaintiff's present position that the complaints again recite the historic facts with respect to the claimed misappropriation and the claimed suppression of evidence by Charles W. and Hazel Platts merely as evidence of overt acts alleged to support his claim that there exists, and has existed over the years, a 'general conspiracy' between Mrs. Kennedy and Charles and Hazel Platts to damage and injure the plaintiff. In one complaint, plaintiff alleged that he has suffered general damages in the sum of $100,000 as a result of such 'general conspiracy,' and, in the other, he claims special damages in the sum of $33,462.98, allegedly required to pay for 'attorney's fees, costs and various other expenses.'

Plaintiff claims that this long continuing conspiracy is further evidenced by the persistent statements made by Charles and Hazel Platts in the taking of depositions in some of the prior civil actions wherein they 'have falsely and maliciously denied that they knew that the said Ruthine Guess, now Ruthine Guess Kennedy, had willfully filled in the $5,000 check above referred to.'

The plaintiff alleges:

That the actions above detailed by the defendant Ruthine Guess, now Ruthine Guess Kennedy and the actions of Charles W. Platts and Hazel Pauline Platts, his wife, were pursuant to a conspiracy entered into by and between said defendants which conspiracy had for its object the damaging of the plaintiffs in the business community in which such corporate plaintiff and such individual plaintiff each had a good and substantial standing and that such conspiracy was a continuing one and continued up to and well into the year 1964 and plaintiffs believe and therefore allege that said conspiracy is still continuing. * * *

The complaints now before this court set out no overt acts claimed to have been committed by the defendants over the past ten years in furtherance of the claimed conspiracy, except (1) Mrs. Kennedy's claimed misappropriation of the $5,000 and her claimed false testimony given in the criminal and civil actions based on this claim of misappropriation, and (2) suppression of evidence of the true facts and the giving of false testimony by Charles and Hazel Platts during the taking of their depositions.

We begin our discussion of the law of the case with a consideration of the place which the overt act occupies in the claim of damage in a civil action based on conspiracy. A text statement in 16 Am.Jur.2d Conspiracy § 44 (1964) reads:

The gist of a civil conspiracy is not the unlawful agreement, but the damage resulting from that agreement or its execution. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff. Since damage must be shown in a civil action based on a conspiracy, no cause of action can exist in the absence of an overt act. * * *

Another text statement is found in 15A C.J.S. Conspiracy § 21, at 664 (1967):

While an action may lie for damages suffered by reason of torts committed pursuant to a conspiracy, the conspiracy itself, without any actionable wrongs being done thereunder, ordinarily cannot be made the subject of a civil action, and may be of no consequence except as bearing on the rules of evidence, the persons liable, or aggravation.

Section 5 of the same text states:

Unless an overt act has been committed, there is no civil liability for conspiracy. * * * To create civil liability, however, there must have been an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object. (p. 606)

See, also, section 24 of the same text. It is unnecessary to lengthen this opinion by the citation of the innumerable decisions upon which these text statements are firmly supported. W. Prosser, Law of Torts § 43, at 260 (3rd ed. 1964), states:...