Woodruff v. Hughes

• Decision Date: 18 July 1907
• Docket Number: 405.
• Citation: 58 S.E. 551,2 Ga.App. 361
• Parties: WOODRUFF et al. v. HUGHES.
• Court: Georgia Court of Appeals

58 S.E. 551

2 Ga.App. 361

WOODRUFF et al. v. HUGHES.

No. 405.

Court of Appeals of Georgia

July 18, 1907

Syllabus by the Court.

Where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done.

[Ed Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy §§ 4, 5.]

A conspiracy is the combining of two or more persons for the purpose of doing something unlawful, oppressive, or immoral as a means or an end. The allegation and proof of conspiracy is important to the action only because it will enable the plaintiff to recover his damages in case the conspiracy can be proved, not only from the actual participants engaged in committing the injury, but also from those defendants who conspired to accomplish it, although neither present nor participating. An averment that the acts alleged were done in pursuance of a conspiracy does not change the nature of the action, but it may be pleaded and proved as aggravating the wrong of which the plaintiff complained, and to enable him to recover against all the conspirators as joint tort-feasors or (in case no conspiracy be shown) that the plaintiff may still recover against such of the defendants as may be guilty of the tort.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 1, 2.]

In an action on the case for conspiracy, the allegation with reference to the combination, conspiring, and concert of action are mere matters of inducement leading up to the relation of the acts from which conspiracy may be inferred. To show conspiracy, it is not necessary to prove that the parties met together or entered into any specific or formal agreement, or that by words or writing they formulated their unlawful objects. Proof that two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.

Possession of realty is presumed to be lawful until the contrary appears, and, where possession is alleged, that such possession is lawful is such a conclusion as can properly be pleaded.

In neither petition nor answer is an exhaustive statement of the exact evidence upon which a party will rely in the establishment of his contentions required. On the contrary, so far as matters of inducement and other minor matters are concerned, a clear, brief statement of immaterial matters (the briefer the better) is to be commended.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 31.]

There was no error in overruling the demurrer.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by J. A. Hughes against G. W. Woodruff and others. G. W. Woodruff was dismissed for want of proper service, and from a judgment for plaintiff the other defendants bring error. Affirmed.

Payne, Jones & Jones, for plaintiffs in error.

R. B. Blackburn and Westmoreland Bros., for defendant in error.

RUSSELL J.

J. A. Hughes brought suit in the city court of Atlanta against G. W. Woodruff, E. Woodruff, J. C. Gentry, Robert P. Jones, and Winfield Jones, to recover damages for an alleged conspiracy to oust the plaintiff from the lawful possession of certain premises. Some time after the institution of the suit, G. W. Woodruff was dismissed as a party defendant, on account of failure to properly serve him with copy process. To the original petition, the defendants, jointly and severally, demurred generally, as well as specially. The demurrer, on being heard before his honor, Judge Reid, was overruled. To the order overruling said general and special demurrers, the defendants except. The petition alleges, in substance, that on the 3d of February, 1906, the plaintiff was in lawful possession of a certain house and lot in the city of Atlanta, known as "No. 16 Railroad street," having been in lawful possession thereof from the 10th of January, 1906, up to and including the 3d of February, 1906; that the defendants, conspiring and confederating for the purpose of evicting the plaintiff from said premises, undertook forcibly to eject him therefrom, failing in which, one of the defendants, acting for and on behalf of the others, caused a warrant to issue against the plaintiff charging him with the offense of criminal trespass; and that under said warrant the plaintiff was arrested and carried before a magistrate, where, upon securing his recognizance bond, he was released from custody. The petition thereupon proceeds to allege that, being released from custody, the plaintiff returned to the said premises, unlocked the door, he having the keys of said house in his custody, and went into the house, and found therein and on the premises agents and servants of the defendants; that immediately thereafter and on the same day the defendants, still further carrying out the conspiracy, caused a warrant to issue charging the plaintiff with the offense of forcible entry and detainer, under which warrant plaintiff was arrested, incarcerated in jail for four or five hours, and, upon giving his bond, was finally released from custody; that, after being released the second time, the plaintiff repaired to said premises and undertook to repossess himself thereof, but was by force and violence on the part of the defendants prevented from repossessing himself of said property, and that the defendants took possession thereof and retained the same over his objection and protest; that, the warrants coming on to be heard, the magistrate dismissed them, and plaintiff was discharged from custody; that both of the warrants were sued out maliciously and without probable cause, defendants well knowing that the plaintiff was in lawful possession of said premises and had not committed the crimes charged in said warrants; that said prosecutions were pressed against him maliciously and without probable cause, there being aggravating circumstances both in act and intention in the conduct of proceedings against him; and that the plaintiff, by reason of said conduct on the part of said defendants, was greatly wounded in his feelings, held up to contempt and ridicule, and humiliated in the extreme. It is alleged that both of the prosecutions alleged were a part of one and the same scheme, conspiracy, and confederation of the defendants to oust the plaintiff from the possession of said property and gain the physical possession thereof. The plaintiff seeks punitive as well as actual damages, and asks judgment against the defendants in the sum of $10,000.

We will first consider the general demurrer of the defendants alleging that the petition sets forth no cause of action because, if that contention is well taken, the special demurrers need not be considered. We think the petition sets forth such a cause of action as will withstand the general demurrer. It has been frequently said that there is no legal term of which it is more difficult to give an exact definition than conspiracy, and yet its essentials are easily enumerated. "The elements of a conspiracy are: (a) The confederating: The combining together of two or more persons. (b) The intent: For the purpose. (c) The object: Of doing something unlawful or oppressive, or immoral, as a means of an end." Eddy on Combinations, § 365, p. 238. The law of civil conspiracy is only an extension of the law of criminal conspiracy, and, as far as rights and remedies are concerned, all criminal conspiracies are embraced within civil conspiracies. In a criminal conspiracy, the conspiring together is the essence of the charge. It must be either to do an unlawful act or to do a lawful act by criminal or unlawful means, but proof of the conspiracy to do either will authorize a conviction. On the other hand, where civil liability for a conspiracy is sought to be imposed, the conspiracy of itself furnishes no cause of action. The gist of the action is the damage, and not the conspiracy. As said by Devens, J., in Boston v. Simmons, 150 Mass. 463, 23 N.E. 211, 6 L.R.A. 629, 15 Am.St.Rep. 230: "The averment of a conspiracy in the declaration does not ordinarily change the nature of the action, nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy. On the other hand, when the tort committed and the damage resulting therefrom proceed from a series of connected acts, the averment that they were done by several in pursuance of a conspiracy does not so change the nature of the action, that, if the wrongful acts are shown to have been done by one only, it cannot be maintained against him alone,...