ROBINSON et al. v. VAN HOOSER, 196 F. 620

WARRINGTON, Circuit Judge (after stating the facts as above). It is contended that material errors occurred at the trial, through misconception of the nature of the action. It is said that the court in effect instructed the jury that the gist of the action is the conspiracy, instead) of the damage sustained by reason o.f it. But the charge does not admit of the

interpretation that it was necessary to prove the conspiracy only. The resulting damages alleged were associated with the action and the trial throughout. The court on motion of defendants required plaintiff to amend his petition by making his claim for damages definite and filing a bill of particulars; and in the charge compensatory damages in respect of loss on farm, crops, and stock” are considered and explained in connection with the subject of conspiracy; and the subject of punitive damages is also considered.

The charge is, therefore, not open to the objection, so often considered by the courts and text-writers, that the plaintiff might recover upon averment and proof simply of a conspiracy. It was not important that the trial court should either define the suit by name, or instruct the jury as to any particular order in which it should consider the evidence touching the damage and the conspiracy; nor was it of practical consequence which subject required the greater attention, so long as both were clearly explained.

For example, whether the suit be called an action upon the case in the nature of a conspiracy against defendants for combining to injure plaintiff in his person and property (Laverty v. Vanarsdale, 65 Pa. 507, 509) or an action of tort for a conspiracy so to injure him in person and property (Emmons v. Alvord, 177 Mass. 466, 468, 59 N. E. 126), cannot change tire nature of the action or the kind or degree of proof required of the plaintiff.

Since to hold defendants liable in actions like this it is necessary to prove a combination and united action on their part, the conspiracy averments afford a convenient means of alleging such combination and action, but this does not dispense with the necessity for averment and proof of damage, and we do not understand the trial court to have said so. Boston v. Simmons, 150 Mass. 461, 463, 23 N. E. 210, 6 L. R. A. 629, 15 Am. St. Rep. 230; Hundley v. Louisville & Nashville R. R. Co., 105 Ky. 162, 168, 48 S. W. 429, 63 L. R. A. 289, 88 Am. St. Rep. 298; Hutchins v. Hutchins, 7 Hill (N.

Y.) 105, 107, 109; Martens v. Reilly, 109 Wis. 464, 473, 84 N. W. 840; Adler v. Fenton, 24 How. 407, 410, 16 L. Ed. 696; Place v. Minster, 65 N. Y. 89, 95. Another error assigned grew out of what was called in the charge a “secondary or subsidiary conspiracy,” which it is said was not alleged. This complaint is based on certain testimony of plaintiff concerning a notice fastened to a thorn switch and placed! op the porch of his home on the night of June 17, 1909, by two persons, one of whom was recognized and is a defendant.

The notice was addressed to plaintiff’s son and it charged him with “talking too' much to suit us,” stating “you have got to leave this country or be killed. * * * W'e will give you until Monday morning to leave. * * * • But mind and don’t forget to leave by Monday morning. [Signed] Night Riders.” In the opinion denying the motion for a new trial, the learned trial judge states that “for want of a better name” he spoke of what led up to the occurrence when the thorn switch was placed on plaintiff’s premises “as a sort of subsidiary or secondary conspiracy.” We are disposed to hold that the notice and testimony concerning it were admissible under the pleadings.

It seems to us that the conspiracy alleged was continuous.

As pointed out in the statement, it is, in substance, alleged in the original petition that, after it became known that plaintiff had become a member of the Law and Order League, defendants on divers occasions, among which the month of June (1909) is named, pursuant to and in furtherance of the combination, conspiracy, and confederacy “hereinbefore described,” went to plaintiff’s home and threatened him and his wife and children, etc., and again in the amendment to the petition it is averred that on or about June 22, 1909, plaintiff was by reason of the conduct of defendants, “pursuant to the conspiracy entered into'by them as therein set forth (i. e., the petition), compelled to abandon his said farm,” etc.

Furthermore, the defendants cannot rightfully complain of the charge concerning- the so-called subsidiary conspiracy, any more than they can of the charge regarding the acts of defendants which resulted in forcibly taking plaintiff from his home into the woods and compelling him to take the oath set out in the statement; for the court distinctly placed upon plaintiff the burden of proving that the defendants did in truth conspire to commit the acts and injuries respecting the one as well as the other.

It is urged that such societies as those mentioned in- the pleadings are lawful bodies under statutes and decisions of the commonwealth of Kentucky when their object is not to- raise or lower prices of articles above or below their actual market value under normal conditions, and that such a combination cannot be a conspiracy for an unlawful purpose. The averment is that one of the objects of the societies complained of was to create a monopoly in the raising, handling, and sale of the tobacco and to enhance its price.

Apart from this, however, the argument fails to observe the true relation and effect of the unlawful means alleged’and proofs adduced as to the manner of forcing men to join the societies and yield obedience to their commands. Can it be that men shall join and) carry out the behests of such societies however lawful they may be in form and declared purpose, or suffer damages to their property and even flee for their lives ? This must be the test of the argument, no matter whether the allegations and proofs be believed or not. Errors are assigned respecting certain testimony that was received during the trial.

Wells, a son-in-law of plaintiff, was permitted-to testify that after February 9, 1909, he was initiated into the Night Rider organization by one of the defendants who administered to him the Night Rider oath in Robinson’s barn; again, Wells was permitted to testify that he heard another defendant say in the presence of 'others: “Of course, we are guilty of the crime of night-riding, but we are going to dleny it.” Wells was also allowed to state that he heard some of the defendants say that “they have fellows here from Christian county and they were going to stock the jury.” He was further permitted to testify, in substance, that the reason he joined the night riders was because plaintiff had told him that he had been delegated to get him into the lodge and that he (plaintiff) had) to do so or be killed.

It is enough to say of all this testimony that the objections indicate no grounds upon which they were made, and they cannot be considered for that reason. Pennsylvania Co. v. Whitney, 169 Fed. 572, 575, 95 C. C. A. 70 (C. C. A. 6th Cir.); Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306. 25 L. R. A. 33 (C. C. A. 6th Cir.); Baltimore & O. R. Co. v. Hellenthal, 88 Fed. 116, 119, 31 C. C. A. 414 (C. C. A. 6th Cir.); North Chicago St. R. v. St. John, 85 Fed. 806. 29 C. C. A. 634 (C. C. A. 7th Cir.). Rrror is assigned to the ruling out of character evidence.

Learned counsel very frankly admit that they “are in doubt as to its competency.” Judge Evans, who presided at the trial, delivered a forceful opinion in support of his ruling on this subject. After citing Connecticut Life Insurance Company v. Union Trust Co., 112 U. S. 254-255, 5 Sup. Ct. 119. 28 L. Ed. 708, and Nashua Savings Bank v. Anglo-American Co., 189 U. S. 228, 23 Sup. Ct. 517, 47 L. Ed. 782, to show that the federal courts are as to evidence bound by the rules prevailing in the states, he relied on the following decisions of the Court of Appeals of Kentucky: Givens v. Bradley, 3 Bibb, 192, 6 Am.

Dec. 646; Evans v. Evans, 93 Ky. 510, 518, 20 S. W. 605; Mattingly v. Shortell, 120 Ky. 57, 58, 85 S. W. 215, 8 Ann. Cas. 1134; Morris v. Hazelwood, 1 Bush, 210. The conclusion reached by the court is in accordance with the general rule as to evidence of character offered in civil actions, and' we see no reason for departing from it in this case. Morgan v. Barnhill, 118 Fed. 24, 28, 55 C. C. A. 1 (C. C. A. 5th Cir.); Quinalty v. Temple, 176 Fed. 67, 69, 99 C. C. A. 375, 27 L. R. A. (N. S.) 1114 (C. C. A. 5th Cir.); Fahey v. Crotty, 63 Mich. 383, 388, 29 N. W. 876, 6 Am. St. Rep. 305; Stone v. Hawkeye Ins.

Co., 68 Iowa, 737, 743, 28 N. W. 47, 56 Am. St. Rep. 870; Porter v. Whitlock, 142 Iowa, 66, 70, 120 N. W. 649; Thayer v. Boyle, 30 Me. 475, 480; Gebhart v. Burkett, 57 Ind. 378. 380, 26 Am. Rep. 61; Lamagdelaine v. Tremblay, 162 Mass. 339, 341, 39 N. E. 38; Black v. Epstein, 221 Mo. 286. 305, 120 S. W. 754. Another assignment of error is based upon a portion of-the charge in which the jury was instructed that it was at liberty to add to compensatory damages such punitive damages as it thought the evidence warranted.

If the allegations of the original petition and the amendment were substantially proved, it is hard to see why the rule in this regard was either improperly stated or applied. Nothing is said on the subject in the original brief for defendants; and the only effort made in this regard in. the reply brief is to show that the exception and error were sufficiently taken and assigned. The doctrine of punitive or exemplary damages prevails in Kentucky. Chiles v. Drake, 2 Metc. (Ky.) 146, 153, 74 Am. Dec. 406; Slater v. Sherman, 5 Bush (Ky.) 206, 211; Jennings v. Maddox, 8 B. Mon. (Ky.) 430, 432; Doerhoefer v.

Shewmaker, 97 S. W. 7, 29 Ky. Law Rep. 1193, 1197. The same doctrine is sanctioned both by the Supreme Court and this court. Scott v. Donald, 165 U. S. 58, 78, 82, 17 Sup. Ct. 265, 41 L. Ed. 632; Barry v. Edmunds, 116 U. S. 550, 564, 6 Sup. Ct. 501, 29 L. Ed. 729; Cowen v. Winters. 96 Fed. 929, 933, 37 C. C. A. 628 (C. C. A. 6th Cir.). It is insisted that the court erred in overruling defendants’ motion for a directed verdict made at the conclusion of all the evidence. The motion was properly denied. It was not the province of the court to weigh the evidence.

Such a motion must be overruled where plaintiff’s evidence is material, and, if uncontradicted and believed, would justify a verdict; and in considering the motion it is of no importance how much such evidence is contradicted by defendant. This is true even where plaintiff’s own testimony is of itself in some measure contradictory. The present Mr.' Justice Burton said in Rochford v. Pennsylvania Co., 174 Fed. 81, 84, 98 C. C. A. 105, 108 (C. C.

A. 6th Cir.): “If the plaintiff has produced material evidence, sufficient, if believed and uncontradicted, to warrant a verdict, no amount of contradictory evidence will authorize the trial judge to take the question of its effect and weight away from the jury.” See, also, Erie R. Co. v. Rooney, 186 Fed. 16, 19, 108 C. C. A. 118 (C. C. A. 6th Cir.); Big Brushy Coal & Coke Co. v. Williams. 176 Fed. 529, 532, 99 C. C. A. 102 (C. C. A. 6th Cir.), and cases there cited. Furthermore, the general charge distinctly cast the burden of weighing the evidence upon the jury exclusively.

The learned trial judge studiously refrained from expressing an opinion, in fact disclaimed having any, as to the tendency or effect of the evidence. He defined the issues of fact with clearness and also arrayed and classified the witnesses and evidence on particular issues, so as to direct the jury’s attention to the conflict of testimony in specific instances; as, for example, where the testimony of plaintiff as to the oath scene in the woods was disputed by all the defendants. We may say here that in the argument stress was laid upon this feature of the testimony.

It was claimed that all the defendants had not been shown to have taken

part in the unlawful acts complained of; and as an instance that plaintiff admitted that at least two men — “two other fellows” — came in and received the oath after it had been administered to him. But the natural inference to be drawn from this portion of plaintiff’s testimony.is, we think, that the “other fellows” were others than defendants. • If defendants' thought the testimony susceptible of a different construction, they should have made it clear by further examination.

The testimony took a wide range, and is replete with circumstantial features, which were peculiarly subjects for the consideration of a jury. One of these features was that during the troubles out of which this case grew a patrol was maintained in the neighborhood of plaintiff’s home at the expense of the county; and plaintiff was, under appointment of the county judge, a captain of the patrol, and his son-in-law, Wells, a patrolman. Another feature arose from testimony to the effect that plaintiff was subject to “spells,” and was accustomed to imagine causes of fright that did not exist.

Since motive and intent enter so. vitally- into a question of conspiracy, the consensus of judgment of a jury as to circumstances like these, in connection with the acts charged against defendants, is entitled to serious consideration. Place v. Minster, supra, 65 N. Y. page 95. Defendants complain of a remark made by the court to the jury, after it had announced that it could not agree. It was an inquiry whether an agreement could be reached as to any of the de-fendanís and a statement that it was almost a necessity that the jury should reach a verdict if it could.

The court had rightly instructed the jury that it could find against less than all of the defendants, if the testimony did not justify a finding against all of them. Although counsel seem to have been present, no exception was taken, and the matter cannot he reviewed on error. Stewart v. Wyoming Range Co., 128 U. S. 383, 390, 9 Sup. Ct. 101, 32 L. Ed. 439. The verdict is for a sum less than the amount of actual damages set out in the bill of particulars, and in support of which evidence was adduced. It would seem that exemplary damages were not allowed.

The court considered the case again on the motion for a new trial, and rendered an opinion in support of its denial of the motion. It is settled that this court will not interfere with the exercise of a sound discretion in the trial court respecting is disposition of such a motion. Big Brushy Coal & Coke Co. v. Williams, supra, 176 Fed. page 531, 99 C. C. A. 102; Pugh v. Bluff City Excursion Co., 177 Fed. 400, 101 C. C. A. 403 (C. C. A. 6th Cir.). The judgment must be affirmed, with costs.