
    Common Pleas Court of Montgomery County.
    Rev. Vincent Slavinas v. Joseph Ambrose et al.
    
      McConnoughey & Shea, for plaintiff.
    
      Egan & Delscamp, for defendant.
   SNEDIKER, J.

This case is before the court on a demurrer to the petition, which demurrer is upon three grounds, first, that separate causes of action against several defendants are improperly joined; second, that there is a misjoinder of parties defendant; third, that the petition does not state facts sufficient to constiute a cause of action.

The case is brought by a plaintiff who was at the time of the filing of this petition and had been for about five years, pastor of a congregation of Dayton, Ohio, which is composed largely of persons of Lithuanian birth or descent. The plaintiff charges that the defendants, who were at one time members of his congregation, have conspired, amongst themselves and with others whom he does not know, to injure him and his good name and reputation as pastor, priest and citizen, and as a member of the community of the city of Dayton, Ohio. He charges that the defendants have initiated and organized and arranged for meetings at which they were present with other persons during the months of February, March and April of 1927, and have then and there, as a part of and to promote the ends of their conspiracy to injure him in the respects heretofore recited, spoken and agitated against him, and have visited members of his congregation in their homes and elsewhere from time to time, and have then and there on all such occasions falsely and maliciously, and with the intent to injure him, charged the plaintiff with having used funds belonging to the congregation for his individual and personal purposes and with having appropriated to his own use moneys so belonging to said congregation.

Plaintiff says that the charges so maliciously made against him are wholly false, that, in fact, he did not appropriate to his own purposes any moneys belonging to the congregation, and that such statements and charges were made by the defendants with the intent and for the purpose of injuring him in the respects aforesaid, and that they have damaged him thereby in the sum of $25,000. The prayer of his petition is that he recover that amount.

If this were an action for slander, then the first two grounds of this demurrer ought to be sustained, but it is not such an action. This petition charges a conspiracy for an unlawful purpose, which was carried out by the defendants in the respects charged. The unlawfulness appears in the petition in the averment of the circulation of the report of misappropriation of the funds of the congregation by the plaintiff, which misappropriation this petition especially denies. If statements of a like kind had been made by any individual who is here a defendant, they would constitute slander per se, and the plaintiff, in an action against such an individual, could recover without any allegation of special damages.

In two cases found in the Georgia Reports this principle was discussed. In the case of Franklin v. Browne, 67 Ga., p. 272, the court held that

“To say that a minister of the gospel collected money for a particular purpose, and embezzled it for his own wrongful uses, and that he is unfit to be a minister, is actionable without any allegation of special damage.”

This same Browne seems to have been laboring under an accusation from more than one person and in the 68 Ga. at p. 117, in the case of Elsas v. Browne, we find the court once more reiterating

“To charge a minister of the gospel with collecting money for a specific object, and, instead of so appropriating it, with embezzling and applying it to his own wrongful uses, is actionable per se; if not imputing to him a crime punishable by law, it is certainly charging him with being guilty of a debasing act, which may exclude him from society.”

These decisions are in conformity with the general rule of law of slander, which is to the effect, that words imputing the guilt or commission of some criminal offense involving moral turpitude and infamous punishment, and words imputing the existence of some contagious disease, and unfitness in an officer who holds an office of profit or emolument, either in respect of morals or inability to discharge the duties thereof, and words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business, and words imputing a want of chastity or the commission of adultery or fornication, are actionable per se.

But as this pleading stands, the first two grounds of the demurrer should be overruled.

This plaintiff, as we have said, charges a conspiracy for the unlawful purpose designated, and his action being so brought, it is our duty to consider its scope and requirements. Generally speaking a conspiracy is an agreement or engagement of persons to co-operate in accomplishing some unlawful purpose, or some purpose which may not be unlawful, by unlawful means. The conspirators are liable for conduct pursuant to such agreement to inflict injury. The injury done, and not the conspiracy, is the gist of the action.

Cooley in his work on Torts says,

“The general rule is, that a conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. The damage is the gist of the action, not the conspiracy; and though the conspiracy may be said to be of itself a thing amiss, it must nevertheless, until something has been accomplished in pursuance of it, be looked upon as a mere unfulfilled intention of several to do mischief. When the mischief is accomplished, the conspiracy becomes important, as it affects the means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it. The significance of the conspiracy consists, therefore, in this: That it gives the-person injured a remedy against parties not otherwise connected with the wrong. It is also significant as constituting matter of aggravation, and as such tending to increase the plaintiff’s recovery.” r

In the 20 N. Y., at pp. 89-95 (Place v. Minster et al.), the court say

“The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded.”

We may gather from the authorities quoted the necessity of the recitation of the unlawfulness of the thing done and of the resulting damage to the persons or property of the person injured in stating a case.

In the case of Zurhorst v. Kroll et al., 10 O. C. C. Reports, p. 230, the court, in discussing a case of conspiracy where the charge was that the defendants unlawfully-conspired to injure the plaintiff in his reputation and deprive him of position of United States Collector of Customs of Sandusky, and 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, said:

“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 r 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.”

That court, however, held in that case that

“In an action for conspiracy the damage sustained constitutes the gravamen, and proof of special damage is required and cannot 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.
“Where the petition charges an unlawful conspiracy to injure the plaintiff in his reputation and deprive him of a public office 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.”

This theory of the law is supported by numerous authorities, both text books and cases. As to the latter, we find the court in the 47 Mich., at p. 572, saying:

“A declaration for conspiracy must definitely and issu-ably set forth the facts complained of, so that if they are admitted the court can draw legal conclusions; it is not enough to merely aver that they are unlawful.
“Proof of an illegal purpose alone is enough to sustain a criminal prosecution for a conspiracy. But a civil action will not lie unless the purpose be so far carried out as to unlawfully damage the plaintiff.”

In the case of Cotterell v. Jones and Ablett, 78 English Common Law Reports, p. 712, the language of the court is:

“Case will not lie against two persons for conspiracy together, maliciously and vexatiously, and without reasonable or probable cause, to commence, and commencing, an action against the plaintiff, in the name of a third person, but for their own benefit — without an allegation of legal damage resulting to the plaintiff therefrom.”

In the case of Lewis Kimball v. Robert K. Harman, and Thomas B. Burch, 34 Md., p. 407, the first and second syllabi read:

“In an action on the case against several, founded on an alleged conspiracy to injure the plaintiffs, they are not entitled to recover, even if there were such unlawful conspiracy among the defendants, unless the plaintiffs can show that they have in fact been aggrieved, or have sustained actual legal damage by some overt act, done in pursuance and execution of the conspiracy.
“No action lies for simply conspiring to do an unlawful act; it is the doing the act itself, and the resulting actual damage to the plaintiff which furnish the ground of the action.”

So that we see that in order to make his case it is necessary for this plaintiff to show that the concert between these parties for the accomplishment of the unlawful purpose which he charges against them must have resulted in some actual legal damage to himself. He does say “to his damage in the sum of $25,000. The defendants have not filed a motion to make his petition more definite and certain by recitation of his particular damages, and while his statement may be a conclusion of fact, this demurrer admits its truth for the purpose of raising the questions brought before us by that pleading. If the defendants under these conditions desire to be more fully informed as to what damage this pláintiff claims he has specially suffered, it may still be ascertained by interrogatories attached to their answer, or by the taking of his deposition.

The third ground of the demurrer should also be overruled.  