
    Randall, Guardian, Appellant, vs. Lonstorf and others, imp., Respondents.
    
      October 25
    
    November 14, 1905.
    
    '(1) Pleading: Matter in abatement: Action by guardian.. (2-4) Conspiracy: When civil action lies: Alienation of husband’s affection, etc.: Criminal conspiracy.
    
    1. In an action by a general guardian in bis own name, tbe objection that the cause of action is one in favor of the ward alone goes only to the competency of the guardian to maintain the action and, being in abatement only, is not available after defendant bas pleaded in bar.
    2. A civil action may be maintained against conspirators for tbe damage resulting from tbeir acts done in pursuance of a criminal conspiracy, even tbougb it could not be maintained for tbe same acts done, without a conspiracy, by one person. Martens v. Reilly, 109 Wis. 464, explained.
    3. A conspiracy to prevent a wife from performing ber marital duties, from living witb ber husband, from receiving from him tbe support to which she is entitled, from obtaining a divorce in ber home jurisdiction which should fully protect ber rights, and, by reducing ber to penury, to compel ber to allow her bus-band to obtain a divorce upon false and fraudulent allegations-in a foreign jurisdiction, is a criminal conspiracy within sec. 4466a, Stats. 1898.
    4. The object sought by such conspiracy being unlawful and (under sec. 4587c, Stats. 1898) criminal, and tbe means employed being unlawful and (under sec. 4466a) criminal, a civil action may be maintained for tbe resulting damage, even though there might be no redress for the same injuries inflicted by a single person.
    Appeal from an order of tbe circuit court for Milwaukee-county: ORREN T. Williams, Circuit Judge.
    
      Reversed.
    
    This is a civil áction for damages resulting from an alleged unlawful conspiracy. Tbe complaint, after alleging tbe due appointment and qualification of tbe plaintiff as guardian of one Emma Lonstorf, an insane person, and tbe adjudication of ber insanity on July 10, 1903, alleges in substance tbat said Emma Lonstorf and tbe defendant Otto E. Lonstorf were married July 16, 1894, and lived bappily together several years in Milwaukee; tbat said Otto is of a weak and irresolute character, and tbat tbe defendant Margaret Lonstorf is tbe widow of one Nicholas Lonstorf, deceased, and is a person of great wealth and imperious will, and is tbe mother of' tbe other nine defendants, all of whom, excepting tbe defendant George J. Lonstorf, are dependent upon ber for support, and completely subject to ber wishes; tbat shortly after-Emma’s marriage witb Otto tbe other defendants, maliciously conspired together for tbe purpose of separating said Emma from Otto, depriving ber of ber support and of tbe necessaries of life, and inducing Otto: to desert ber and remain outside of tbe state of Wisconsin and beyond tbe reach of civil or criminal process issuing from tbe courts of said state; that in pursuance of this conspiracy they afterwards secured Otto’s discharge from various places of employment, represented to him that Emma was unfaithful to him, and urged him to desert ber, furnished him with large sums with which to travel abroad, and threatened that said Margaret would disinherit him, so that finally said Otto joined the other defendants in the execution of said unlawful conspiracy; that subsequent to the plaintiff’s appointment as guardian all of the defendants continued in the prosecution of this unlawful conspiracy to keep the defendant Otto out of the state and beyond the jurisdiction of the courts of this state, and to keep Emma in destitution, and to force her to permit Otto to obtain a divorce in some foreign jurisdiction where she could not, on account of her poverty, appear or protect her rights; that in pursuance of said conspiracy said Otto commenced a divorce action in the state of Michigan, which was afterwards dropped, and after Emma’s commitment to the Milwaukee Hospital for the Insane commenced a divorce action in the state of Washington in the month of December, 1903, the complaint in which action was verified by Otto and contained false statements of fact, and entirely concealed the fact of Emma’s insane condition, for the purpose of imposing on said court; that the remaining defendants have assisted said Otto by advice and •contributions of money in said ’attempt to obtain a divorce for the purpose of carrying out said conspiracy; that said Emma has now, and for a long time last past has had, a good -eause of action for divorce against said Otto for wilful desertion, cruel and inhuman treatment, and failure to support; that said Emma has no property, and is supported at the Milwaukee County Hospital for the Insane as a pauper, and that by the carrying out of said conspiracy as aforesaid said Emma bas been deprived of ber legal rights aforesaid, to her damage in the sum of $250,000, for which sum judgment is demanded.
    The defendants, except Otto, appeared jointly and answered, denying all the allegations of conspiracy. The cause came on for trial, and a demurrer ore tenus to the complaint was sustained and judgment of dismissal entered, from which the plaintiff appeals!
    For the appellant there was a brief by Charles II. Phillips, attorney, and McElroy & Eschweiler, of counsel, and oral argument by F. C. Fschweiler.
    
    For the respondents there was a brief by Fishing & Killilea, and oral argument by U. J. Killilea.
    
   WiNsnow, J.

While the right of the general guardian to maintain this action in his own name was not challenged in the tria] court, the query was raised in this court whether the cause of action, if any, was not one in favor of the ward alone, which must be prosecuted by her and not by the guardian. Whatever might be the conclusion were the question a new one, it is foreclosed by the decision in the case of Plath v. Braunsdorff, 40 Wis. 107, where the exact question was raised, and it was held that the objection went only to the competency of the guardian to maintain the action, and, being in abatement only, was unavailable to the defendant after having pleaded in bar.

Proceeding to the merits, we note at the outset that both parties argued the case upon the assumption that, in order to sustain the complaint, it would or might be necessary to overrule the decision in the case of Lonstorf v. Lonstorf, 118 Wis. 159, 95 N. W. 961; and we were strenuously urged upon the one side to reconsider and overrule the ruling in that case,, and upon the other as strenuously to adhere to it. We do not find it necessary, howevei’, to reconsider that decision. That was an action brought by the deserted wife against her mother-in-law alone for the alienation of the affections of the husband and her consequent loss of consortium and support, and it was held, following the decision in Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, that such an action could not be maintained. That ruling, however, by no means necessarily or inferentially decides this case. The present action is brought to recover damages resulting from an alleged unlawful conspiracy between a number of people, and presents an entirely different question. An actionable conspiracy, as recently defined by this court, is “a combination of two or more persons for the purpose of accomplishing a criminal or unlawful object by criminal or unlawful means, or a lawful object by criminal or unlawful means.” State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. In a criminal prosecution the gist of the offense is the conspiracy itself. In a civil action the gist of the action is the damage suffered by reason of the conspiracy. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840.

It was argued by the respondent that, inasmuch as this court had held that no action could be maintained by the wife against a single person for the malicious alienation of the husband’s affections, no action could be maintained against a number of persons for the same act done by them in concert, and it was said that the court had laid down that principle in the Martens Case, just cited. While the language of the syllabus in the last-named case may perhaps furnish some ground for this contention, examination of the opinion itself shows that no such broad rule was laid down. Upon page 472 of 109 Wis. (84 N. W. 843), the principle decided is thus stated:

“An act legal in itself, in that it does not offend against the criminal law and the injuries are damnum absque injuria, regardless of its violation of moral standards, whether such act be the one perpetrated or the means used to that end, generally, if not the subject of a civil action for damages if done by one person, is not if done by many acting in concert.”

It will be readily seen that under this rule, in order that the concerted act of many should create no civil liability because the same act by one creates none, the act must be one which does not offend against the criminal law, but only violates moral standards. Whatever may be the holdings in other jurisdictions, this is the extent of the rule as adopted in this state, as is clearly shown by the discussion and conclusions reached in the Huegen Case, supra, where the doctrine of the English case of Huttley v. Simmons (1898) 1 Q. B. Div. 181, was rejected. So the question is not whether one person may alienate the husband’s affections without liability to the wife, but whether the conspiracy of many to do that same thing is a violation of the criminal law, and, if so, whether damage has resulted by reason of the conspiracy.

Turning’ to the statute upon the subject of conspiracies, which was under consideration in the Huegin Case, namely, Stats. 1898, sec. 4466a, we find that it is thereby made a criminal offense for any two or more persons to combine or agree together “for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession .by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act.” The first part of this section evidently was intended to cover conspiracies against another in his trade or business, but the second part just as evidently was intended to cover another and broader field, namely, conspiracies maliciously intended to coerce and constrain the action of another by compelling him to do that which is against his will, or to refrain from doing any lawful act which he desires to do. That the allegations of this conrplaint bring the conspiracy within this latter clause, and thus make it criminal, we can entertain no doubt. By these allegations it appears that the defendants maliciously conspired together to prevent the plaintiff from performing her marital duties, from living with ber husband, from receiving at bis bands tbat support to which she was entitled, from obtaining a divorce in ber home jurisdiction which should fully protect her rights, and, by reducing her to penury, compel her to- allow her husband to obtain a divorce upon false and fraudulent allegations in a foreign jurisdiction. All these were unlawful constraints upon the plaintiff’s actions and will, which the law condemns. There can be no doubt, therefore, that the conspiracy charged was a criminal conspiracy within the statute.. Whether it would not be criminal at common law, in the absence of a statute, we need not consider.

So all the essentials to a civil action for conspiracy are alleged. The object sought, namely, the breaching of the marriage contract and the desertion of the wife by the husband, leaving her in destitution, was an unlawful object, within the meaning of the word “unlawful” as defined in the Martens Case. Under our statute (Stats. 1898, sec.'4581c) it was also a criminal object. The means employed were unlawful and criminal, within the terms of sec. 4466a of the same Statutes. It is sufficiently alleged that damage followed. There was, then, the unlawful and criminal object, the unlawful and criminal means, and the resulting damage; and it follows that a civil action lies, although there may be no redress for the same injuries inflicted by a single person. If the law could not reach and redress such wrongs as are here charged it would be impotent indeed. No such reproach can be cast upon it. It will not allow conspirators against the marriage bond and the happiness of the family to go “unwhipt of justice” any more than it will allow conspirators against a business or a profession to escape.

By the Court. — Order reversed, and action remanded with directions to overrule the demurrer to the complaint.  