White v. White
| Decision Date | 21 May 1907 |
| Citation | 132 Wis. 121,111 N.W. 1116 |
| Parties | WHITE v. WHITE ET AL. |
| Court | Wisconsin Supreme Court |
In case of a complaint being open to objection for defect of parties a demurrer on that ground which does not specifically point out wherein the defect consists, naming the party plaintiff or defendant which should have been joined, is insufficient to raise the question.
A demurrer to the complaint upon the ground that several causes of action have been improperly joined is legitimate only when two or more good causes of action are pleaded which are not joinable.
Allegations to the effect that two or more persons, naming them, have maliciously combined to produce a separation between husband and wife, naming them, causing the former to desert the latter, she desiring performance of the marriage contract to continue, states a criminal conspiracy under section 4466a, St. 1898, and together with allegations to the effect that the purpose of the conspiracy has been consummated to the damage of the wife, and stating generally the means resorted to for that purpose, shows a good cause of action in face of a demurrer for insufficiency even though the allegations or some of them may not be sufficiently definite to defeat a motion to make more definite and certain.
A consummated conspiracy, actionable for the recovery of damages at the suit of the injured person, need not as to the conspiracy satisfy every essential of section 4466a, St. 1898, the essentials of a conspiracy at common law are sufficient.
Any combination of two or more persons to do a criminal or unlawful act by any means or to do a lawful act by criminal or unlawful means is an actionable conspiracy at common law, and upon the purpose thereof being consummated is actionable by the person injured to recover compensation therefor.
It is not necessary to an action to recover compensation for an injury produced by a consummated conspiracy to do an unlawful act that the means resorted to to effect the purpose should be criminal or that the act be criminal; the breaking of a contract is a sufficient unlawful act.
The gist of a civil action to recover compensation for injuries caused by a consummated conspiracy is the damage. The major significance of the conspiracy is in that it renders each party to the combination liable to the injured one regardless of the degree of his activity in effecting the unlawful purpose.
Appeal from Circuit Court, Waukeska County; James J. Dick, Judge.
Action by Charlotte E. White against Frances L. White and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.
Action for damages for an alleged consummated conspiracy to injure.
Appeal from an order overruling a demurrer to the complaint. Those parts of the pleading necessary to be examined upon the appeal are in substance or terms, as follows:
Plaintiff and defendant Frederick H. White, Jr., since December 11, 1901, have been husband and wife. Their real home during such time has been in the state of Wisconsin and till the formation of the conspiracy hereafter mentioned they were devotedly attached to each other and lived happily together.
Defendant Frederick H. White is a wealthy man and husband of defendant Frances L. White, and the two are the parents of plaintiff's husband.
Defendant Mary A. Stewart has been a servant in the family of Frederick H. White and wife for over twenty years. She is about seventy years of age and largely dependent upon the favor and charity of her employers for future maintenance.
Plaintiff's husband is a weak, irresolute man, but has always been of sufficient ability to maintain himself and plaintiff in a manner becoming their station, and would have done so but for the acts of defendants hereafter stated, but because of such acts he became unmindful of his marital duties, deserted the plaintiff and for two years has spent his time in idleness and dissipation.
Shortly after the marriage of plaintiff and her husband, the other defendants herein “maliciously, wrongfully, wickedly, fraudulently conspired, confederated and agreed together, and for the purpose of separating the defendant, Frederick H. White, Jr., from the plaintiff, so as to deprive the plaintiff of the support and assistance of her said husband, and to alienate and destroy the affection of the defendant, Frederick H. White, Jr., towards the said plaintiff, and to prevent and interfere with the said Frederick H. White, Jr., providing the said plaintiff with the necessaries of life and discharging the duties of a husband towards her.
“The plaintiff further alleges that to further carry out the purpose, agreement, conspiracy and confederacy of the said defendants, the defendants have repeatedly urged, induced and persuaded the said Frederick H. White, Jr., to desert and leave his wife, and to go beyond the state of Wisconsin and to remain therefrom, and furnished his expenses for the express purpose of carrying out the end and object of said conspiracy aforesaid; and the said defendants combining as aforesaid so influenced the said Frederick H. White, Jr., to leave and desert his said wife, by threats that his said parents would disinherit him, and that he would be given no part or parcel of their vast wealth and estate; that overcome by said influence, inducements and entreaties, brought about by the said conspiracy, confederacy and agreement aforesaid, the mind and disposition of the said Frederick H. White, Jr., has been prejudiced and poisoned against the plaintiff, his love and affection for her destroyed, and the said Frederick H. White, Jr., did finally join the other defendants named herein in their nefarious conspiracy and confederacy aforesaid, and did desert and abandon the plaintiff at the city of Waukesha, in the state of Wisconsin, on or about the 10th day of July, 1905, and has ever since absented himself from the plaintiff and still continues to desert and forsake her.
The plaintiff further alleges upon information and belief that some time in the month of August, 1905, and after the said defendant, Frederick H. White, Jr., had abandoned and forsaken this plaintiff as aforesaid, the defendants, further concerting and maliciously conspiring together, conceived and planned an unholy scheme to the end and for the purpose of injuring the reputation of this plaintiff by devising ways and means of inducing and enticing her to indulge in unchaste and unvirtuous criminal acts, so that in the event of their success in thus inducing this plaintiff as aforesaid, the same could and would be used, and the defendants designed and intended to use the same as evidence to secure a divorce from the plaintiff for and on behalf of the defendant Frederick H. White, Jr., and that with the aid of money and means furnished by the defendants in the furtherance and prosecution of said conspiracy, an actual attempt was made to carry out said conspiracy against the good name and reputation of this plaintiff as aforesaid.”
The acts aforesaid have destroyed plaintiff's marital life and caused her great unpleasantness and pain of body and mind, to her damage in the sum of seventy-five thousand dollars for which judgment is demanded, with costs.
The defendants demurred on the ground of defect of parties defendant, improper joinder of causes of action, and insufficiency of facts to constitute a cause of action. The demurrer was overruled and defendants appeal.
Ryan, Merton & Newbury, for appellants.
Clasen & Walsh (Tullar & Lockney, of counsel), for respondent.
MARSHALL, J. (after stating the facts).
The first objection to the complaint is untenable because the supposed defect of parties, whether by reason of the omission of a plaintiff or plaintiffs or a defendant or defendants that should be joined, is not specified. Without such specification a demurrer for defect of parties under section 2649 and section 2651, St. 1898, is insufficient to raise the question. Emerson v. Schwindt, 108 Wis. 167, 84 N. W. 186.
The second ground of demurrer seems to be as clearly untenable as the first. Appellants' counsel contend that the pleader, in next to the last clause of the complaint preceding the prayer for relief, attempted to state a second cause of action, but failed to plead sufficient facts therefor. Respondent replies that no such attempt was in the mind of the pleader, and that if it were otherwise the attempt was a failure as claimed. So the real supposed defect sought to be...
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