Opinion
28127.
DECIDED MAY 10, 1940. REHEARING DENIED JULY 23, 1940.
Damages; from Fulton superior court — Judge Humphries. July 18, 1939.
Bryan, Middlebrooks Carter, Bonneau Ansley, Y. C. Mitchell, Tull C. Waters, for plaintiff in error.
J. Hugh Rogers, Lovejoy Harwell, contra.
1. While in a suit for civil liability for a conspiracy, "the gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done" ( Woodruff v. Hughes, 2 Ga. App. 361, 58 S.E. 551), yet where it clearly appears from the petition in an action for damages against two or more defendants that the injury complained of could not have been inflicted except by the joint action of two or more of the defendants, a verdict against only one of the defendants is null and void and will not support a judgment against him. St. Louis Ry. Co. v. Thompson, 102 Tex. 89 ( 113 S.W. 144, 19 Ann. Cas. 1250); 12 C. J. 585, 646, §§ 105, 257; 15 C. J. S. 1053, § 31; Barry v. Legler, 39 Fed. 2d, 297; 11 Am. Jur. 588, § 59.
2. "Since a conspiracy can not be formed by one person, a verdict against one defendant only, and in favor of the other defendant, in an action for procuring by conspiracy the wrongful expulsion of plaintiff from a labor organization, will not support a judgment against the one so found liable." Oakes on Organized Labor and Industrial Conflicts, 80, § 71.
3. Under the foregoing rulings and the facts of the instant case (where the plaintiff jointly sued Bartlett and several other persons, for damages for conspiring to wrongfully bring about his expulsion from a certain labor union, and where as the result of said conspiracy he was expelled from the union and thereby damaged), the verdict finding damages against Bartlett only did not support the judgment against him; and the court erred in overruling his motion to set aside the judgment. The cases cited in behalf of the defendant in error are differentiated by their facts from this case.
Judgment reversed. MacIntyre and Guerry, JJ., concur.