Comerford v. Meier

• Decision Date: 01 March 1939
• Parties: COMERFORD v. MEIER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 398

19 N.E.2d 711

COMERFORD

v.MEIER et al.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1939.

Action of tort by Charles Comerford against Robert Meier and others. From an order sustaining defendants' demurrer and from an order allowing a motion to dismiss, plaintiff appeals.

Order allowing motion to dismiss reversed; order sustaining demurrer affirmed.Appeal from Superior Court, Essex County; Burns, Judge.

J. G. Kelly, of Boston, for appellant.

J. A. Donovan, of Lawrence, for appellees.

RONAN, Justice.

The declaration in this action of tort alleges that the plaintiff is an officer and employee of a certain corporation, referred to as a bank; that in 1934 he opposed the employment by the bank of one Sontag; and that certain of the defendants, for the purpose of securing such employment for Sontag and for the purpose of ousting the plaintiff from his employment with the bank, ‘combined, confederated and agreed’ among themselves and later with the remaining defendants upon a plan which included the following activities: (a) They have induced the stockholders of the bank, some of whom ‘are the other defendants in this action,’ to make the bank ‘a so-called German Bank; that is, to exclude from employment or from holding of stock only those who are [not] of German origin or descent,’ which the plaintiff is not, and ‘meetings and gatherings' have been held ‘which were participated in by the defendants for the purpose of achieving this end’; (b) Three named defendants have disseminated and published in the city where the bank was located ‘and amongst the other defendants' and others, statements that the plaintiff was a ‘crook,’ that he ‘had gotten away with money of the Bank and that he would be put in jail’; (c) In order to destroy the value of the plaintiff's shares of stock of the bank the defendants have, since 1935, induced the supervisor of loan agencies of the Commonwealth to refuse to restore the bank's license to conduct the business of making small loans and have caused the supervisor to state that he will not restore such license unless the plaintiff's employment is terminated and, as a consequence, the value of the plaintiff's services to the bank has been lessened; (d) The defendants, ‘by threats of jail and intimidation and by the circulation of stories and statements that the plaintiff had gotten away with money of the bank * * * planned to humiliate and intimidate the plaintiff’ so that he would resign his position and surrender his stock; and (e) The defendants, without the approval of the directors, have brought a bill in equity to secure the appointment of a receiver for the bank; such action was brought not in good faith but in order to oust the plaintiff and to destroy the value of his stock. There is an allegation that as a result of these acts the plaintiff has suffered substantial damage, severe mental anguish and the expenditure of large sums ‘in defence of himself and his rights in the Bank.’ The plaintiff appealed from an order sustaining the defendants' demurrer and also from an order allowing a motion to dismiss which alleged that the action was for slander or libel and for malicious prosecution and could not be brought by trustee process.

The plaintiff was required under the practice act to allege ‘concisely and with substantial certainty’ the essential facts constituting his cause of action in order to give the defendants such information as to the nature of the asserted claim as would permit them to file appropriate pleadings. G.L. (Ter.Ed.) c. 231, § 7, Second. Davis v. H. S. & M. W. Snyder, Inc., 252 Mass. 29, 147 N.E. 30;Grandchamp v. Costello, 289 Mass. 506, 194 N.E. 837.

A plaintiff gains nothing by allegations of confederacy or conspiracy, where the facts alleged do not show that the defendants had a special or peculiar power of coercion over the plaintiff, or that they stood in a fiduciary relation toward him, or that the conduct complained of became tortious solely on account of the combination into which the defendants had entered. Zevitas v. Adams, 276 Mass. 307, 177 N.E. 114;Cummings v. Harrington, 278 Mass. 527, 180 N.E. 519;Caverno v. Fellows, 286 Mass. 440, 190 N.E. 739;Johnson v. East Boston Savings Bank, 290 Mass. 441, 195 N.E. 727. The gravamen of the present action is not that the association itself constituted a wrong but that the conduct of the individuals was a tort and that they have acted together in perpetrating an injury upon the plaintiff. It is the ordinary case where an allegation of conspiracy, construed with the remaining averments, is merely the equivalent of an allegation of joint action. Randall v. Hazelton, 12 Allen 412;Holden v. J. Stevens Arms Co., 230 Mass. 266, 119 N.E. 748;Loughery v. Central Trust Co., 258 Mass. 172, 154 N.E. 583;Farquhar v. New England Trust Co., 261 Mass. 209, 158 N.E. 836. If the declaration, therefore, does not set out a tort against a single defendant then it fails to set out a cause of action.

The declaration is in a single count and contains five paragraphs alleging certain conduct on the part of the defendants. We first consider paragraph (a). The defendants, as stockholders, had the undoubted right, if they thought that the interests of the corporation would be thereby enhanced, to make the bank attractive to those of a particular racial descent, and to employ in the management and conduct of its affairs only persons of such descent. The declaration alleges that all the stockholders except the plaintiff and one or two others were of German origin or descent. If the majority of the stockholders desired to make such a change they could effect it without any liability to the plaintiff even if it should result in the loss of his position. We need not decide whether the defendants would incur any liability to the plaintiff if the predominating motive in seeking such a change was to oust the plaintiff from his employment, as the declaration makes no such direct averment. Moreover, the contemplated change has not been accomplished and the plaintiff has not been required to sever his connections with the bank. ‘It is necessary that such a purpose should be the primary object of the combination entered into with the malicious intention of damaging the plaintiff, and that the means used should cause his damage.’ Robitaille v. Morse, 283 Mass. 27, 32, 186 N.E. 78, 80.Fleming v. Dane, Mass., 10 N.E.2d 85. The plaintiff fails to allege that the defendants, in holding meetings to change the policy of the bank in regard to the racial descent of those whom it should employ, were acting maliciously; and the declaration, in so far as it deals with the conduct of the defendants relative to limiting the employees to those of a certain race, does not set forth anything that was not justifiable in the exercise of their rights as stockholders of the bank. Willett v. Herrick, 258 Mass. 585, 604, 155 N.E. 589;Antoine v. Commonwealth Trust Co., 266 Mass. 202, 206, 165 N.E. 12.

The publication of statements by some of the defendants, as averred in paragraph (b), that the plaintiff was a ‘crook’ or had stolen from the bank was not an actionable wrong, because there is no allegation that they were false or, if they were true, that such statements were malicious. It does not appear whether the statements were oral or written. Truth is a complete defence to slander, Golderman v. Stearns, 7 Gray 181; and it is also, in the absence of malice, a justification to a charge of libel. Finnish Temperance Society Sovittaja v. Finnish Socialistic Publishing Co., 238 Mass. 345, 130 N.E. 845. The reference to mental anguish because of false statements, as set forth in the last paragraph of the declaration, is not an averment that the statements now being considered were false, and it is not clear whether such a reference relates to the statements contained in paragraph (d), which also are not alleged to have been false. No intendment in favor of the pleader can be made upon a demurrer. Hayden v. Perfection Cooler Co., 227 Mass. 589, 592, 116 N.E. 871;Dealtry v. Selectmen of Watertown, 279 Mass. 22, 180 N.E. 621. A demurrer admits allegations of fact well pleaded but it does not admit inferences from such facts unless they are necessary inferences. Loughery v. Central Trust Co., 258 Mass. 172, 154 N.E. 583;Johnson v. East Boston Savings Bank, 290 Mass. 441, 195 N.E. 727.

Paragraph (c) is principally concerned with interference by the defendants with the efforts of the plaintiff to secure from the supervisor of loan agencies a restoration of a license to permit the bank to resume the business of making small loans, and with the action of the defendants in rendering encouragement and assistance to the supervisor in his refusal to restore the license and in securing from him a statement that the license would not be granted so long as the plaintiff was connected with the bank. It is alleged that the motive of the defendants is to effect the removal of the plaintiff, to destroy the value of his stock and to lessen the value of his services to the bank. The supervisor is not a party defendant. There is no allegation that he is acting arbitrarily, unreasonably or illegally. Public officers are presumed to act lawfully. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 125 N.E. 135;General Outdoor Advertising Co., Inc. v. Department of Public Works, 289 Mass. 149, 192, 193 N.E. 799. It should be noted that the commissioner of banks and not the supervisor is authorized to issue such licenses. G.L.(Ter.Ed.) c. 140, § 96.

The action is not brought in behalf of the bank to recover any damages that might have been sustained on account of the conduct of the defendants as narrated in the instant paragraph, even if we assume that an actionable wrong to the corporation is alleged. The plaintiff cannot avail himself of an...