Muse v. Morrison

66 S.E.2d 783 (1951) 234 N.C. 195

MUSE
v.
MORRISON et al.

No. 93.

Supreme Court of North Carolina.

September 26, 1951.

Cecil C. Jackson, Asheville, for plaintiff appellant.

T. A. Clark, Canton, Jones & Ward and Walter R. McGuire, Asheville, for defendants appellees.

WINBORNE, Justice.

Appellant challenges, and we hold properly so, the correctness of the decision of the court below as shown in the judgment from which this appeal is taken.

The declared purpose of this action is to recover damages for alleged injury to plaintiff allegedly caused by wrongful acts done by one or more of the defendants as a part of and in furtherance of an alleged conspiracy between defendants "to drive the plaintiff out of his work, trade and business as a plumber and out of the town of Canton, N. C., and Haywood County".

"A ``conspiracy' is generally defined to be ``an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.'" State v. Dalton, 168 N.C. 204, 83 S.E. 693, 694; State ex rel. Swann v. Martin, 191 N.C. 404, 132 S.E. 16; McNeill v. Hall, 220 N.C. 73, 16 S.E.2d 456; Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448, 451.

In the Holt case, supra, in opinion by Ervin, J., this Court held that "To create civil liability for conspiracy, a wrongful act resulting in injury to another must be done by one or more of the conspirators pursuant to the common scheme and in furtherance of the common object. The gravamen of the action is the resultant wrong, and not the conspiracy itself".

The liability of the conspirators is joint and several. That "Every one who does enter into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design", as quoted by Smith, C. J., in State v. Jackson, 82 N.C. 565. See also State v. Anderson, 208 N.C. 771, 182 S.E. 643; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577.

In the light of these principles, and admitting the facts alleged in the complaint, which we must do in testing the sufficiency of a complaint challenged by demurrer, Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Poole v. State Board of Cosmetic Art Examiners, 221 N.C. 199, 19 S.E.2d 635, and numerous other cases, we are of opinion and hold that there is neither misjoinder of parties to the action nor misjoinder of causes of action alleged in the complaint. A conspiracy between defendants is alleged in the complaint. There are allegations that numerous wrongful acts were unlawfully, maliciously and corruptly done by certain of the alleged conspirators as a part of and in furtherance of the common object. In this connection reference is made to the cases of State v. Ingle, 214 N.C. 276, 199 S.E. 10 and State v. Mitchell, 217 N.C. 244, 7 S.E.2d 567, treating of the subject of journeyman plumber in relation to the provisions of G.S. § 87-16 to G.S. § 87-27. Moreover, it is alleged that plaintiff has been injured and is damaged as the result of the acts so done.

Whether plaintiff is able, in his proof, to make good the allegations of his complaint is of no concern now. But he is entitled to an opportunity to do so—a day in court.

The judgment below is

Reversed.

VALENTINE, J., took no part in the consideration or decision of this case.