
    CONSPIRACY TO INJURE BY LIBEL OR SLANDER.
    Circuit Court of Erie County.
    Ed. H. Zurhorst v. Katharine Kroll and Charles P. Caldwell.
    Decided, September, 1907.
    
      Conspiracy — Libel or Slander — Actions for, Distinguished — Gravamen of, Where Combined — Pleading and Evidence Required — Resulting Injury — Where Loss of an Office is Alleged — Damages—Application of the Statute of Limitations — Sections 498$ and 4983.
    
    1. An action for conspiracy to injure one by libel or slander and an action for libel or slander are not so identical in character as to bring them both into one category under the statute of limitations; and where the conspiracy forms the gist of the action and the libel or slander is merely incidental to the accomplishment of that purpose, the action is not barred by the statute applying to libel or slander.
    2. In an action for conspiracy the damage sustained constitutes the gravamen, and proof of special damage is required and can not be implied from the mere effort to injure the plaintiff by a conspiracy to that end, although the efforts in that behalf may consist of declarations which would raise such an implication in an action for libel or slander.
    3. Valiere the petition charges an unlawful conspiracy to injure the plaintiff'in his reputation and deprive him of a public ofEqe by uttering and publishing slanderous words and a certain libelous affidavit, there is an entire failure to show an accomplishment of the purpose alleged, where 'the testimony merely establishes the means used for the carrying out of the conspiracy, and fails entirely to show any resulting injury; and it is not error in such a case to instruct the jury to return a verdict for the defendants.
   Per Curiam.

Haynes, J., Parker, J., and Wildman, J.

The action, was instituted in the common pleas court by the plaintiff in error against defendants in error, charging them in much detail with unlawfully conspiring to injure plaintiff in his reputation and deprive him of the position of United States Collector of Customs at Sandusky; and averring that in furtherance of said conspiracy they falsely wrote and published a certain libelous affidavit concerning him and spoke in the hearing of divers persons certain slanderous words. It is claimed that the wrongful purpose of the conspirators was accomplished, that by reason of their acts said official position was lost to him, and that he suffered other loss in the way of injury to his good name, pain and humiliation, all to his damage in the sum of $30,000.

The action failed below, the court, at the close of the plaintiff’s evidence, directing a verdict for defendants, and judgment was given accordingly. To reverse this judgment the proceeding is before us.

The petition does not disclose when the acts of the defendants in the carrying out of their alleged unlawful purpose terminated; but the case as developed by the evidence failed to show the writing or speaking of defamatory words within the year prior to the commencement of the suit.

The action of the trial court in directing a verdict for the defendants was invoked by a motion based upon the following grounds:

1. Absence-of evidence to sustain the charge of conspiracy;

2. Bar of the statute of limitations; and,

3. Absence of proof of damages resulting from the acts of defendants, either jointly or severally.

No opinion of the trial judge in support of his ruling is furnished us, but we are informed by counsel for plaintiff in error that he based his action on, the view that the case was one for slander and libel, and that the action was barred by the statute of limitations of this state, limiting the period for bringing such actions to one year (R. S. 4983). Counsel for defendants does not quite concede that this was the sole basis of the decision. • But whatever the views of the trial judge, his decision should not be disturbed if warranted by the character of the action and the evidence.

There was, in our judgment, evidence tending to sustain plaintiff’s averment of a combination or conspiracy, and the first ground of the defendants’ motion was not well taken. The ruling of the court must be supported, if at all, by one or both of the other grounds.

Cases of this general character are not infrequent in the adjudications of this country and England, and the right of action for conspiracy to deprive one of an office or employment or to injure his business, not only by defamation of his character but by other undue or -unlawful means, is clearly established. The action will not lie, however, for the conspiracy alone. It must be consummated by some act or acts resulting in injury to the •plaintiff. But the courts do not hold that the defamation of character, where that is the means employed to accomplish the wrongful purpose of the conspiracy, is anything more than such means. It is no more the gist of the action than are malicious acts of any kind to effect the unlawful purpose of the conspirators. It is distinguished from a libel or slander suit in that it is unnecessary to plead the words of the verbal or written statements made to the injury of the plaintiff or to allege declarations that would sustain .an action for libel or slander. It is further distinguishable in this, that a conspirator may be held liable for either the written or spoken words or the conduct of his confederates; but one person, not conspiring with another, can not be held liable for the libels or slanders or other conduct of such other. As to verbal slander, it has been held that there can be no joinder of defendants, because, to quote one of the pioneer judges of our own Supreme Court, “verbal slander can not be jointly committed by two or more.” Orr v. Bank, 1 Ohio, 46.

The action for conspiracy, then, and the action for libel or slander, are not so identical in character as to bring both into one category under the statute of limitations. Section 4983 of our statutes limits the bringing of actions for libel or slander to one year from the utterance or publication of the defamatory words; but no section of the statute of limitations so limits the bringing of actions for conspiracy, although the means adopted to accomplish the purpose of the conspiracy be libel or slander. In the one case, the libel or slander is the gist of the action; in the other it is a mere incident to the accomplishment of the purpose for which the conspiracy was formed.

This distinction is clearly drawn by the Supreme Court of Texas, in Brown et al v. Amer. Freehold Land Mort. Co. of London, 80 S. W., 985, the case especially relied on by plaintiff in error, and upon the authority of which it is said in the brief of his counsel the petition in this case was drawn. ’ It is recognized with equal clearness and supported by exhaustive reasoning in the able case of Van Horn v. Van Horn, 56 N. J. L., 318 (28 Atl., 669).

To the extent that the petition before us involves and charges a libel and slander, setting out in haec verba the alleged defamatory written and oral statements, the statutory limitation as to actions for slander and libel would, doubtless, apply, upon failure to prove the alleged conspiracy and an effort to base a judgment on the slanders and libel alone. In view of this double aspect of the petition, the statute of limitations was properly invoked; but if the conspiracy and the■ accomplishment of its wrongful purpose, to the plaintiff’s injury, were shown, the one year limitation was not available to bar the action.

It is not contended by defendants in error that sufficient time has passed since the accruing of the right to sue, to effect a bar under any other section of the statute. It is probable that Section 4982 of the statutes is the one applicable to this class of actions as one for “an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated.”.

II. C. Delian, for plaintiff in error.

II. L. Peake, for defendants in error.

It is our judgment, however, that the evidence offered to support the claims of the petition does not tend to establish the accomplishment of the purpose of the alleged conspiracy. It tends to show the use of means to reach the desired end, but it utterly fails to show any resulting injury. True, the plaintiff asserts in general words that he lost his office thereby, but this is barely more than an argumentative statement, a claimed con-, elusion rather than the assertion of a fact, and has no valid force when coupled with his testimony that he filed his resignation with the Secretary of the Treasury at Washington, asking for its immediate acceptance, and not claiming that he had been requested by any superior to resign. It is said that the term of his appointment had expired, and that he was not re-appointed, lie was, however, continuing to hold the office and no successor had been appointed. When we add that the record fails to disclose any previous assurance by the appointing power that his tenure would be extended by re-appointment, or any expression of loss of confidence in him as an official or otherwise, it becomes manifest that his action, so far as proof of loss of office is concerned, fails. There is.no evidence that he was engaged in any other occupation which suffered impairment, or that he received substantial injury in any other respect.

The courts have not held, so far as we are apprised, that damage will be implied from the mere effort to injure one under a conspiracy to that end, although such effort may consist of declarations which would raise such implication in a suit for libel or slander. Proof of special damage seems to be required, and the damage, not the conspiracy, is said to be the gravamen of the action.

We think that the court did not err in instructing the jury to find for the defendants, and we find no prejudicial errors in any other respect.  