Hollinberger v. Stewart

41 App. D.C. 197, 1913 U.S. App. LEXIS 1995

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 1, 1913
• Docket: No. 2559
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The declaration is on the ease for damages in the nature of a writ of conspiracy. There is a fatal variance between the declaration and the proof. To sustain an action for conspiracy three things must be present, — “a conspiracy', tortious acts in furtherance of it, and consequent damage to the plaintiff.”' Findlay v. McAllister, 113 U. S. 104, 28 L. ed. 930, 5 Sup. Ct. Rep. 401; Adler v. Fenton, 24 How. 407, 16 L. ed. 696. We are aware that some of the text writers and certain of the State courts have held that an action of this sort may be maintained although no conspiracy' be proved, but the rule of the Supreme Court, which is binding here, is that an action for conspiracy which fails to establish prearrangement, combination, or collusion to effect an illegal purpose, must fail.

Plaintiff's own testimony totally fails to establish any prearrangement, combination, collusion, or understanding among defendants as to any' contemplated action to be taken against him. Had such a conspiracy been entered-into by Hoche and Constable, and subsequently' Holliuberger, knowing of the arrangement,' had become a party to it, and the declaration had alleged it, and the proof had been sufficient to support the allegation, appellant might have been held as a coconspirator. Lincoln v. Claflin, 7 Wall. 132, 19 L. ed. 106. But that is not this case. Not only is no such prearrangement alleged, but the proof fails to establish it. It is not important that plaintiff may have had a good cause of action against defendants for false arrest. The present case must fail for lack of the essential elements of conspiracy.

The judgment as to appellant is reversed, with costs, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed.