(dissenting.) For the purposes of this appeal, the sole question is upon the plaintiff’s exceptions to the trial court’s charge to the jury. Plaintiff had charged the defendants with wrongful assault upon his person and trespass upon his property, and that said wrongs were done pursuant to a conspiracy framed for that purpose. These charges were denied by the defendants. This, briefly stated, was the issue presented and tried.
If the plaintiff presented sufficient evidence to take that question to the jury, he was entitled to have the jury correctly instructed upon the law applicable to an issue of that character. At'the close of the testimony, defendants moved for a directed verdict, on the theory that the evidence was insufficient to sustain a verdict for plaintiff. The trial court denied the motion, thereby ruling that a case had been made on which the plaintiff was entitled to have the finding of the jury. Upon this record, the court instructed the jury that, to entitle plaintiff to recover damages, he must establish, by a preponderance of the evidence:
“ (1) That some two or more of the defendants entered into a conspiracy to injure him by assaulting his person or trespassing upon or injuring his property; and (2) that, in pursuance of such conspiracy, some one or more of the defendants did make an assault upon plaintiff, or did willfully trespass upon or injure his property by injuring or destroying his shrubbery or putting paint upon his house. ’ ’
This proposition was repeated in different forms, making it plain to the jury that, even though plaintiff had proved an actual assault upon him or actual trespass upon his property, and had also proved that defendants, -or some of them, had actually taken part in such assault or trespass, yet there could be no recovery unless he also proved, by preponderance of the evidence, that such wrongs had been committed in pursuance of a previously formed conspiracy for the purpose.
Is that the law? If it be the law, the ruling should be af*923firmed. If it be not the law, it should be reversed. To answer that question requires no examination or inquiry into the record, except the simple statement of the nature of the issues joined by the pleadings, and no digging into the books or precedents beyond the development of the settled rule applicable to actions for damages for torts of the character charged in the petition. Briefly stated, it is settled beyond all reasonable dispute that, when a plaintiff sues two or more persons for an alleged actionable'tort committed pursuant to a conspiracy, the charge of conspiracy is mere inducement and matter of evidence, and, even though plaintiff wholly fail to prove the conspiracy, he is still entitled to recover against any one or more of the individual defendants who are shown to have had a hand in doing the wrong. Indeed, the majority opinion is frank enough to concede this proposition; and yet, while saying that it “has no quarrel with the rule,” it proceeds with strange inconsistency to say that there is no error in giving an instruction which not only contradicts it, but states another with which it is impossible to reconcile it. If this holding is to stand, it works a practical overruling of Young v. Gormley, 119 Iowa 546, and the score of other cases in which the rule I have stated has been announced and followed. To find justification for that radical departure, the majority-lead us off into a discussion of mis-joinder of parties and of causes of action, and other alleged features of the evidence, with all of which this court, as an appellate tribunal, has nothing to do. They constitute only a smoke screen, to obscure the simple question: .Did the court err in charging the jury that, before plaintiff could be awarded damages against anyone under the allegations of his petition, he must first establish the existence of a conspiracy?,' If it did not err, then all the courts of last resort in our country have been going wrong for half a century. The precedents are so numerous and the rule so thoroughly settled that it would savor of folly to attempt their citation.
I do not care to pursue the subject further. I have no opinion to express upon the merits or truth of the. charges made by the plaintiff in his petition. Whatever be his merits or demerits, he is entitled to come into court, make his complaint, and have it heard and passed upon according to the usual course of law, *924and liave tbe issues submitted to a jury with proper instructions by the court. That fundamental right he has been denied. No man will be more prompt than the writer to certify unreservedly to the eminent character and ability of the judge who presided at the trial below, or to repel any suggestion of unfairness or prejudice on his part. I am, nevertheless, profoundly convinced that he erred radically in the view of the law expressed in the instruction which I have discussed. It must be said, however, that his error is comparatively negligible when compared with those which will be justly chargeable to this court, if it adopts the opinion prepared for it by the majority. I would reverse.