Miller v. Bayer

Marshall, J.

We first consider whether the complaint states a cause of action against all the defendants. Obviously, if it states such cause of action, it is for entering into an unlawful combination to injure the plaintiff by unlawfully producing the abortion charged, and the carrying out of the conspiracy. If is strongly urged on the part of the defendants that an unlawful combination or conspiracy is not charged, and in support of such contention the learned counsel for the defendants are extremely critical respecting plaintiff’s use of the word “collusion.” The complaint charges that defendants entered into collusion to do the unlawful and wrongful acts which resulted in her injury. Counsel indulges in rather a hypercritical course of reasoning, we must say, to show that the word “collusion,” taken in connection with the context, does not charge the entering into of an unlawful combination. Collusion is synonymous with conspiracy. It is an agreement for a wrongful purpose; .a secret agreement by two or more persons to obtain an unlawful object. Standard Diet. It is an agreement to obtain an object forbidden by law. Bouv. Law Diet. 292. It is a .secret agreement and co-operation for a fraudulent purpose. "Webst. Diet. "We are not called upon to determine whether the plaintiff used the most appropriate language in stating her case, but whether the language used will permit of a con *126 struction which will sustain the pleading. The rule that once prevailed, that a pleading should be construed most strongly against the pleader, has been long since abrogated by statute. Sec. 2668, E. S., provides that: “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” “Every reasonable intendment and presumption is to be made in favor of the pleading.” Morse v. Gilman, 16 Wis. 504 “If the essential facts can be gathered from the pleading, or may be reasonably inferred from the allegations, it is good, though such allegations be in form uncertain, incomplete, and defective.” Flan ders v. Mc Vickar, 7 Wis. 372 ; Horn v. Ludington, 28 Wis. 81 ; Merrill v. Merrill, 53 Wis. 522 . Applying the foregoing rules, the word “ collusion,” as used in the complaint, most clearly charges defendants with entering into an unlawful combination to injure the plaintiff by performing upon her an abortion. It charges that they agreed together to have defendant Kewnett perform upon the body of the plaintiff a criminal operation and an abortion ; that, by reason thereof, such criminal operation was performed by said Kennett; that plaintiff was then quick with child, which was well known to all the parties before the performing of said abortion, as aforesaid. Evidently the pleader used the words “ perform a criminal operation ” and “perform an abortion” synonymously. In construing pleadings by the liberal rules heretofore referred to, we are not confined to the word “abortion” where the complaint charges an agreement to perform an abortion, as the antecedent of that portion of the clause charging that the parties knew of plaintiff’s condition “ at the time of the performing of said abortion.” Sense requires that the reference should be to an act theretofore charged as having been actually performed; that is, the criminal operation. To so construe the pleading is allowable and, looking at the contest, such *127 was tbe clear intent of tbe pleader. Yan Sant. PL ?Y3. All criticisms of a pleading must give way to sucb effect being given to its allegations as will support it, to tbe end that substantial justice may be obtained, so far as tbis can be done, without constructively adding material allegations or words to tbe pleading, or giving to its language a meaning that' cannot be reasonably attributed thereto.

It is argued that to cause an abortion is not necessarily criminal; hence that no cause of action is stated, because tbe exception contained in E. S. sec. 4352, is not negatived. If the act was justifiable, clearly, in an action for damages, tbe facts in that regard are a matter of defense; hence not necessary to be alleged in tbe complaint. Moreover, tbe complaint sufficiently negatives justification on tbe ground of tbe necessity of saving life, under sec. 4352, E. S., in that it expressly charges that tbe unlawful combination was entered into to do tbe act complained of, to prevent scandal and to save tbe reputation of Herman Bayer, and that what was thereafter done was pursuant to sucb unlawful combination.

It is further contended that plaintiff cannot recover, because she submitted to tbe operation performed upon her. Sucb is not tbe law. Consent by one person to allow another to perform an unlawful act upon sucb person does not constitute a defense to an action to recover tbe actual damages which sucb person thereby received. 2 Greenl. Ev. § 85; Shay v. Thompson, 59 Wis. 540 ; Fitzgerald v. Cavin, 110 Mass. 153 ; Adams v. Waggoner, 33 Ind. 531 ; Comm. v. Collberg, 119 Mass. 350 .

Tbe foregoing covers all tbe questions presented in regard to whether tbe complaint states a cause of action against all tbe defendants. We must resolve sucb question in favor of the pleading, and bold that both general demurrers were improperly sustained.

It is further contended that, if an action is stated against *128 all the defendants jointly, a separate and additional cause of action is stated against Herman Bayer for damages for unlawfully assaulting the plaintiff; hence, that two causes •of action are improperly united in the complaint.

The complaint charges the pregnancy of plaintiff, and that it was the result of an unlawful assault and rape committed upon her by Herman Bmjer. Then follows the charge that all the defendants entered into an unlawful conspiracy to produce the abortion; then allegations showing that the object of the conspiracy was accomplished; then allegations respecting the resulting damages; then the prayer for judgment. It is because of the acts charged as having been committed by defendant Hermcun Bayer before the formation of the conspiracy that it is claimed a separate cause of action is stated as to him. It is quite likely that the circumstances preceding the formation of the conspiracy are set forth with unnecessary particularity, but that does not constitute a fatal defect in the complaint to be reached by demurrer. "When the general scope and purpose of a complaint is apparent, and the language used will admit of a construction consistent therewith, such construction should be adopted, notwithstanding allegations introduced by way of giving a history of the case, which, when viewed apart from such evident purpose, might be held to state a cause of action inconsistent therewith. Such is the effect of the reasoning in Merrill v. Merrill, supra, and is a proper rule to be followed in the construction of pleadings. The allegations charging the assault were evidently introduced by the pleader by way of showing a history of the transactions leading up to the unlawful combination to injure the plaintiff and its consummation, which form the groundwork of her cause of action against all the defendants; if properly so introduced, or as matter of inducement, commonly so -called, they constitute no part of the cause of action. 2 Wait, Prac. 417. If not properly so introduced, they may be re *129 garded as mere surplusage. Hence we hold that tbe complaint does not state a cause of action against Herman Bayer separate from that stated against all the defendants; therefore, that it states but one cause of action, and that against all the defendants; and that the demurrer upon the ground that the several causes of action are improperly united is not well taken.

By the Court.— The orders of the circuit court sustaining the demurrers are reversed, and the cause of action remanded for further proceedings according to law.