TITLE XIII.

COMBINATIONS AND CONSPIRACIES.

CHAPTER LXXVII.

COMBINATIONS AND CONSPIRACIES.

§ 2231. Conspiracy must result in injury or damage to

be actionable and justify a recovery.-It is essential that

there be a conspiracy, but actual damage or injury must have been sustained by reason thereof to justify a recovery of damages, as the fact of conspiracy is simply a matter of aggravation. So it is determined in England that a right of

1

1 Herron v. Hughes, 25 Cal. 555 (a | will not be supported that a recovery simple conspiracy, however atrocious, may be had for all the damages flowunless it results in actual damages to ing out of the original conspiracy); the party, never was the subject of a Baker v. Sun L. Ins. Co., 23 Ky. L. civil action; and though such con- Rep. 1178; 64 S. W. 967 (some actual spiracy be charged, the averment is damage must have been sustained immaterial, and need not be proved); through some act done in furtherance Doremus v. Hennessey, 62 Ill. App. 391 of the conspiracy and where damages ("The essence of a conspiracy, so far are sought for wrongful discharge as it justifies a civil action for dam- through an alleged conspiracy, no ages, is a concert or combination to recovery can be had where there was defraud or to cause other injury to no coercion or deception causing the persons or property, which, because other party to break his contract of acts done in pursuance of such con- against his will, especially in view of spiracy, actually results in damage to the fact that the agreement for emthe person or property of the person ployment was terminable at will); injured or defrauded. A civil action Robinson v. Parks, 76 Md. 118; 24 will not lie for a mere conspiracy. It Atl. 411 (in the absence of damage is the damage done in pursuance of the simple act of conspiracy is not the conspiracy which gives the right sufficient to sustain the action. The of action," per Justice Waterman); gist of the action is the damage done); De Wulf v. Dix (Iowa, 1900), 81 N. Kimball v. Harman, 34 Md. 407; 6 W. 779 (conspiracy cannot be made Am. Rep. 340 (the action does not the subject of a civil action unless lie for simply conspiring, must show something is done which without the actual damage); Boston v. Simmons, conspiracy would give a right of ac- 150 Mass. 461; 23 N. E. 210; 6 L. R. tion); Beechley v. Mulville, 102 Iowa, A. 629 (the gist of an action is not the 602; 70 N. W. 107; 71 N. W. 428 conspiracy but the tort and the dam(something must be done which age thereby done. Where damage without the conspiracy would give results from an act which if done by a right of action, citing Jayne v. one alone would not afford ground of Drorbaugh, 63 Iowa, 711; 17 N. W. action the like act would not be ren433; Robinson v. Parks, 76 Md. 118; dered actionable because done by 24 Atl. 411; Kimball v. Harman, 34 several in pursuance of a conspiracy); Md. 407; Laverty v. Vanarsdale, 65 Commercial Union Assur. Co. v. ShoePa. St. 507, quoting Cooley on Torts maker (Neb. 1901), 88 N. W. 156 [2d ed.], p. 143); Haskell County Bk. |(the damage and not the wrongful v. Santa Fé Bk., 51 Kan. 39; 32 Pac. confederation is the gist of the ac624 (the plaintiff's recovery must be tion); Booker v. Puyear, 27 Neb. 346; not for the formation of the con- 43 N. W. 133 (damage is the gist of spiracy nor for the planning and con- the action); Stevens v. Rowe, 59 N. triving to injure but for the execution H. 578; 47 Am. Rep. 231 (a mere conof the conspiracy and a contention spiracy to do a wrong is not of itself

action arises from a conspiracy only where the acts done would, if they had been done without preconcert, have involved a civil injury against the person to whom they were directed; and even though the acts are done maliciously and with an intent to injure a particular person by a combination of two or more persons inducing others not to employ him, no damages are recoverable if no civil injury results.2

§ 2232. When civil liability for damages does and does not exist.-Damages for conspiracy are held to be recoverable against a corporation, and although an act is not made unlawful by statute, civil liability may result from a conspiracy to commit such an act. But a principal cannot be held an accomplice because his agent had knowledge, nor is a shareholder in a corporation liable, unless he was a party thereto, for the fraudulent acts of conspiracy between the corporation and its shareholders. In Allen v. Flood, boiler-makers in common employment with the respondents, who were shipwrights working in wood, objected to work with the latter on the ground that in a previous employment they had been en

a ground for an action at law. The fact of conspiracy is not actionable but only the acts of the confederated parties, and these only when they would be actionable if done by an individual); Van Horn v. Van Horn, 52 N. J. L. 284; 20 Atl. 485; 10 L. R. A. 184 (the gravamen of the action is the malice, not the conspiracy, but both may be pleaded and proved as aggravating the wrong); Hutchins v. Hutchins, 7 Hill (N. Y.), 107 ("A simple conspiracy, however atrocious, unless it resulted in actual damage to the party, never was the subject of a civil action, not even when the old form of a writ of conspiracy, in its limited and most technical character, was in use," per Nelson, C. J.); Root v. Rose, 6 N. D. 575; 2 Chic. L. J Wkly. 664; 72 N. W. 1022 (acts done in pursuance of conspiracy |

must be legal wrongs; the conspiracy itself constitutes no cause of action); Smith v. Nippert (Wis.), 44 N. W. 846 (if injury results from conspiracy it is actionable).

* Huttly v. Simmons, 67 L. J. Q. B. N. S. 213; [1898] 1 Q. B. 181. See opinions at end of this chapter. 3 Lubricating Oil Co. v. Standard Oil Co., 42 Hun (N. Y.), 153.

Longshore Printing & P. Co. v. Howell, 26 Or. 527; 38 Pac. 547; 28 L. R. A. 464.

5 Benton v. Minneapolis Tailoring & Mfg. Co., 73 Minn. 498; 76 N. W. 265.

gaged on iron work. The appellant, an official of the boilermaker's union, in response to a telegram from one of the boiler-makers, came to the yard and dissuaded the men from immediately leaving their work, as they threatened to do, intimating that if they did so he would do his best to have them deprived of the benefits of the union, and also fined. The appellant then saw the managing director, to whom he said that if the respondents, who were engaged from day to day, were not dismissed, the boiler-makers would leave their work or be called out, and the respondents were thereupon dismissed. It was determined by six of their lordships as against three, that no actionable wrong had been committed by the appellant. Lord Watson said that although the rule may be otherwise with regard to crimes, the law of England does not take into account motive as constituting an element of civil wrong. The evidence of a bad motive, in the case of an act, which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due. Again, where a railroad company is compelled to refuse to accept interstate freight from another road, with which a labor organization of railroad employees is in conflict, and because of the threats of such organization to withhold their labor if it does accept such freight, a civil action lies against the organization and its officers, even though the latter are not employees, to recover the damages resulting from the unlawful acts in furtherance of the conspiracy. So where a labor organization refuses to admit a nonunion man to membership and procures his discharge by a notice to his employers that in case he is retained it will be compelled to notify all labor organizations in the city that the house is a nonunion one, it is guilty of a wrongful act and will be liable to the employee in damages for maliciously and wantonly procuring his discharge. If the object of a combination between dealers in merchandise is to injure the business of another by inducing others to refuse to sell to him, the con

7 Syllabus in 67 L. J. Q. B. N. S. 119.

L. J. 227; 48 Alb. L. J. 184; 5
Inters. Com. Rep. 545. See opinion
in this case at end of this chapter.
Lucke v. The Clothing Cutters
T. Assembly, 77 Md. 396; 26 Atl.

8 Toledo A. A. & N. M. R. Co. v. Pennsylvania Co. (U. S. C. C. N. D. Ohio), 54 Fed. 730; 19 L. R. A. 387; & 53 Am. & Eng. R. Cas. 307; 29 Ohio | 505.

spirators are liable for the injury so sustained, but if the purpose of the combination is that it will itself refuse to sell it is not an actionable conspiracy if it is intended to serve a legitimate purpose.10 Again, where persons are engaged in a similar business and one threatens to discharge all its employees who should in any manner trade with the other, whereby his business is destroyed, it is held that no damages can be recovered therefor."1

§ 2233. Damages not recoverable where combinations merely for lawful competition.-Damages are not recoverable from a combination of traders associated to secure a carrying trade exclusively for themselves and at profitable rates, organized in the belief that by offering exceptional and very favorable terms to customers who will deal exclusively with them, they will prevent rival traders from competing with them and so receive the whole profits of the trade to themselves; and even though certain traders are excluded from the association, and in endeavoring to obtain the trade are underbid and freights reduced so low that such excluded traders are obliged to carry at unremunerative rates and suffer loss, they can maintain no action to recover therefor, where the combination had employed no unlawful means to accomplish their purpose of excluding rival traders from business in such carrying trade.12

§ 2234. Action by private person.-A private person can obtain redress for a conspiracy, only when it operates to his injury, and where, as to him, its object is unlawful. 13 action at law for damages is the only remedy of a private person under the anti-trust act.14

But an

10 Delz v. Winfree (Tex.), 16 S. | in this case are given at end of this

W. 111.

11 Robison v. Texas Pine Land Assn. (Tex. Civ. App.), 40 S. W. 843.

chapter.

18 Eason v. Petway, 18 N. C. (1 Dev. & B.) 44.

14 Pidcock v. Harrington (U. S. C. 12 Mogul Steamship Co., Ld., v. C. S. D. N. Y.), 64 Fed. 821, citing McGregor, Gow & Co. [1892], App. Blindell v. Hogan (U. S. C. C. E. D. Cas. 25; 58 L. J. Q. B. 465; 23 Q. B. | La.), 40, aff'd 6 C. C. A. 86; 56 Fed. 614; L. R. 21 Q. B. D. 544. Opinions 696.