Opinion
8 Div. 362.
June 2, 1921. Rehearing Denied June 23, 1921.
Appeal from Circuit Court, Madison County; Robt. C. Brickell, Judge.
David A. Grayson and Cooper Cooper, all of Huntsville, and Callahan Harris, of Decatur, for appellant.
Counsel discuss the issues raised by the demurrers with the insistence that the demurrers were improperly sustained. 188 Ala. 109, 65 So. 1003; 12 C. J. 584; 64 Ala. 299, 38 Am.Rep. 8.
R. E. Smith and Douglass Taylor, both of Huntsville, for appellee.
Brief of counsel did not reach the Reporter.
In the former suit, wherein judgment was rendered against this plaintiff and in favor of this defendant and another, sued jointly with him, the complaint alleged that the two defendants "unlawfully, willfully, corruptly, and maliciously conspired and confederated and bound themselves together" under an agreement to make the same false entry on the municipal records of Huntsville which is the basis for the present suit, and it was further alleged that said conspiracy and unlawful agreement were executed by making the same addition to the records.
The theory of plaintiff's demurrer to defendants' plea of res judicata is that the charge of conspiracy in the former suit imposed upon plaintiff the burden of showing such a conspiracy as a condition to recovery, and hence that the verdict and judgment for the defendants — including this defendant — may as well have been founded upon plaintiff's failure to prove the conspiracy as upon his failure to prove a false and malicious publication; in short, that there were two essential and distinct issues on the face of the pleadings, only one of which is here presented, and that therefore the plea in question should have alleged that the present issue was in fact determined in that suit, and that the judgment was founded thereon.
The principle invoked by the demurrer is well settled in the law. Strauss v. Neertief, 64 Ala. 299, 38 Am. Rep. 8; Dobson v. Hurley, 129 Ala. 380, 30 So. 598; Hooper v. Pierce, 151 Ala. 517, 44 So. 108; Street v. Browning, 87 So. 527. It is, however, very clearly not applicable in this case. The gist of an action for a conspiracy is the damage, and not the conspiracy. L. N. R. R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003.
"As a general rule, averment and proof that the acts were done in pursuance of a conspiracy do not change the nature of the action, or add anything to its legal force and effect. If a plaintiff fails in the proof of a conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the tort without such agreement. The charge of conspiracy where unsupported by evidence, will be considered mere surplusage, not necessary to be proved to support the action." 12 Corp. Jur. 584, § 104, E; Howland v. Corn, 232 Fed. 35, 40, 146 C.C.A. 227; Hansen v. Nicoll, 40 App. D.C. 228. Ann. Cas. 1914C, 759; Doremus v. Hennessy, 176 Ill. 608, 52 N.E. 924, 54 N.E. 524, 68 Am. St. Rep. 203, 43 L.R.A. 797, 802; Boston v. Simmons, 150 Mass. 461, 23 N.E. 210, 6 L.R.A. 629, 15 Am. St. Rep. 230, and many other cases.
From this principle it results that the judgment for defendant in the former suit was, upon the face of the pleadings therein, essentially and necessarily a determination against this plaintiff of the identical issues upon which his present cause of action must be grounded. We hold, therefore, that the demurrer to the plea was properly overruled, and the judgment of nonsuit must be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.