Buffalo Lubricating Oil Co. v. Everest

Barker, J.: Some of the paragraphs of the complaint embraced in the motion to strike out, relate to the averments concerning the commencement and prosecution of actions against the plaintiff as one of the means resorted to, by the defendants to effect the ruin and bankruptcy of fhe plaintiff, and to drive it out of the business of refining oil. As the complaint alleges' that these suits are still pending and undetermined, and there is no averment or pretense that the defendants have resorted to any abuse of the process of law in the prosecution of these actions, the matter averred concerning these suits is in my judgment irrelevant and should be stricken out. Any unlawful act done with a view of injuring another in his reputation, business or property, is actionable if damage result therefrom. The prosecution of suits in the organized courts of the State is. a lawful and legitimate act, and so long as the result is undetermined it cannot be said to be unjustifiable. A conspiracy consists +in the unlawful combination or agreement of two or more persons to do an act unlawful in itself, or to do a lawful 'act by unlawful means. These constitute the very substance and essence of a conspiracy, as the same is understood and defined in the law. The allegation of conspiracy between the defendants to commit the act complained of, is of no importance so far as it respects the cause and ground of action. A simple conspiracy, however atrocious, unless it results in actual damage to the party against whom the conspiracy is aimed, is not the subject of a civil action. It is only necessary to be averred and proved, where a verdict is demanded against two or more defendants. If there be a failure to prove the combination, then the plaintiff is entitled to a verdict against either defendant upon whom an unlawful act is proved to the damage of the plaintiff. (Hutchins v. Hutchins, 7 Hill, 107; Savill v. Roberts, 1 Lord R., 374; Parker v. Huntington, 2 Gray, 124; Bowen v. Matheson, 14 Allen, 499; Laverty v. Vanarsdale, 65 Pa., 507.) If the allegations of the complaint relating to the prosecution of [589] the suits were separate from the other averments as to the means resorted to, to affect the purpose of the conspiracy, the action would then be, in its nature and character, an action on the case for a malicious prosecution. Should these allegations be allowed to remain as pertinent averments, then the defendant is at liberty to take issue, with the plaintiff on the charge, that the suits were begun and were prosecuted maliciously, without merit or probable cause. It would be a grievance to the defendants, as well as impracticable, to compel them to try these questions in this action. The fact that the subject matter of the suit pertains to the business in which the plaintiff is engaged, does not change the case or make the acts of the defendants in instituting the suits unlawful. There is no averment in the complaint, that the defendants have resorted to any act, which can be construed to be an abuse of the process of the court. In actions of this character it is not necessary to aver and prove that the process improperly employed is at an end, nor that it was sued out without reasonable or probable, cause. (2 G-reenl. Ev., § 452; 2 Add. on Torts., 155.) Actions of this character may be maintained whenever the.person who sues out the’ process uses the same for some private purpose of his own, not warranted by the exigencies of the writ or the order of the court, and is liable for damages for such abuse. The case of Bebinger v. Sweet (1 Abb. N. C., 263) is not an authority in support of the plaintiff’s position. In that case it was alleged that the defendant caused the plaintiff to be arrested for embezzlement as a means of accomplishing an unlawful purpose, and upon the trial it was proved that the plaintiff was arrested and gave bail, and while before the court the defendant’s counsel advised the plaintiff to settle or the defendant would send him to State prison. It was held by the court upon review, that it was not necessary to allege that the prosecution had ended; that it was essentially an action against the defendant for the abuse of the process of the court for the purpose, illegally and wrongfully, by that means, to compel the plaintiff to surrender up his property and rights to the defendant. In that case the abuse of the process consisted in making the threat, that if the plaintiff did not settle the demand which the defendant made upon him, then he would send him to prison. It was a plain attempt to make use of the process which had been [590] issued at tlie instigation of the defendant, by virtue of which the plaintiff was at the time in custody, to intimidate and frighten him into a compliance with the demands of the prosecutor in reference to other matters of a personal character. It is an abuse of the process of the court to issue execution upon a satisfied judgment, and seek to enforce the same by levying upon and selling the property of the defendant. (Swan v. Saddlemire, 8 Wend., 676.) And to the same effect is Barnett v. Reed (51 Penn., 190); see, also, Mayer v. Walter, 64 Penn., 283.) Paragraphs five, six, seven, eight and ten relate wholly to the pending suits, and should be struck out as irrelevant. Paragraph four relates entirely to the acts of the defendant in enticing from the plaintiffs’ employment its servants, and should be retained. It is urged by the defendant that the complaint in this respect does not set up sufficient facts so as to make it appear that the defendant’s conduct in this respect was actionable. It was not necessary to set out the facts with more particularity, as if relying solely upon them as the cause of action. The act charged is averred as one of the means by which the defendant sought to accomplish another and an unlawful purpose, which is the real cause of action alleged. Paragraph two, contains pertinent matter stating, the business and pecuniary relations which the defendants hold1 towards the Vacuum Oil Company, and should be also retained. The order appealed from is modified by striking out paragraphs five, six, seven, eight and ten and retaining paragraphs- two and four. • No costs to either party. Present — Hardin, P. J., Barker, and Dwight, JJ. Order modified as stated in the opinion of Barker, J., without costs. The order to be settled by Mr. Justice Barker.