Darrow v. Briggs

• Decision Date: 14 July 1914
• Docket Number: No. 16741.,16741.
• Citation: 169 S.W. 118,261 Mo. 244
• Parties: DARROW v. BRIGGS et al.
• Court: Missouri Supreme Court

169 S.W. 118

261 Mo. 244

DARROW v. BRIGGS et al.

No. 16741.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. COLLEGES AND UNIVERSITIES (§ 8)—CONTRACT WITH PROFESSOR—DISCHARGE.

Defendant college, a denominational institution, whose charter provided that no religious test should ever be fixed for its trustees, instructors, or students, and which engaged plaintiff as a member of its faculty for one year, with the understanding and agreement that he would be retained, at the discretion of its board of trustees, for any period beyond the first year without any renewal of the contract, and whose trustees, by the articles and by-laws, had power, after the first year, to remove any instructor, when in its judgment the interest of the college should require it, was justified in removing plaintiff from his position on the faculty after he had donated a book, called "Key to Theosophy," to the local public library, and was subjected to attack from the pulpit of another defendant on the ground that he was unsound in his religious views and unfit to be an instructor in the college, and to attacks of the same tenor through the local press, to which he replied, involving himself in a public controversy.

2. CONSPIRACY (§ 1)—CIVIL LIABILITY—NATURE AND ELEMENTS—INJURY TO PERSON OR REPUTATION.

Where the act of the individual defendants, as trustees of defendant college, in removing plaintiff from his position as a member of its faculty was justified by the terms of plaintiff's employment and by the charter of the college, no civil action could be maintained against them for conspiracy.

3. CONSPIRACY (§ 18) — CIVIL LIABILITY — PLEADING—CONSISTENCY WITH THEORY OF ACTION.

In a civil action for a conspiracy, involving breach of contract and slander and libel as a means of accomplishing the injury, allegations that one of the defendants did not participate in any such libels or slanders, but that another defendant communicated the alleged slanders to him, were inconsistent with plaintiff's theory of an actionable conspiracy.

4. CONSPIRACY (§ 18) — CIVIL LIABILITY — ELEMENTS — INJURY.

In a civil action on the case for a conspiracy, the gist of the action is the damage which plaintiff has sustained by the acts of defendants; the conspiracy or combination is nothing, so far as sustaining the action goes, and the allegations thereof need not be proven.

5. CONSPIRACY (§ 1) — CIVIL LIABILITY — GROUNDS OF ACTION — RIGHT OF ACTION AGAINST EACH DEFENDANT.

A civil action against several for conspiracy can only be sustained against them where the acts complained of would sustain an action against any one of the defendants, and the allegation that they conspired together does not authorize the maintenance of the action, when plaintiff could not maintain it against one defendant, if sued alone; the reason being that a conspiracy itself furnishes no cause of action, because, from the mere conspiracy, no possible damages can accrue.

6. PLEADING (§ 64)—PETITION—DUPLICITY.

The petition in a civil action against several for conspiracy, involving breach of contract and slander and libel as a means of accomplishing the injury, alleging libels published and slanders uttered at different times and to different audiences and to different readers through different media and under different circumstances, all mixed and blended in one count, was bad.

7. CONSPIRACY (§ 18)—PLEADING—FORM AND REQUISITES—STATEMENT OF ACTION.

Such petition also violated Rev. St. 1909, § 1794, requiring a plain and concise statement of the facts constituting a cause of action, as, even if such defect was not one for which, under the strict letter of section 1800, a demurrer would lie, the pleader, by the use of doubtful or uncertain allegations, was not allowed to throw upon his adversary the hazard of correctly interpreting its meaning.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Fritz S. Darrow against C. H. Briggs and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Appeal from a judgment of the circuit court of Greene county, sustaining a demurrer to the following petition (caption omitted), to wit:

"Plaintiff states: That the defendant Drury College is a body politic and educational institution and was organized July 2, 1873, under article 8 of chapter 37 of Wagner's Statutes of Missouri. That, under such original articles of incorporation and the by-laws governing the body, said Drury College was denominational in this: That the said articles and by-laws amongst other things provided that a majority of the board of trustees thereof provided for by such articles and by-laws must profess the faith and creed of the Christian organization known as the Congregational Church. That on the 8th day of May, 1905, the organization known as the Carnegie Foundation was organized and created under the laws of the state of New York. That, by the charter of such organization and its by-laws, it is provided that any and all institutions of learning that do not provide for a prescribed religious test for its trustees, or for its faculty, or for its instructors, or for its students, are and become eligible to become the beneficiaries of the fund provided for by said Carnegie Foundation, and when the said institutions are, by and after proper application, placed upon the accepted list of said Carnegie Foundation, the professors thereof, as prescribed by the charter, by-laws, rules, and regulations of said Carnegie Foundation, become eligible for retirement and become eligible to receive the benefits prescribed by said Carnegie Foundation. That the object of said Carnegie Foundation in providing such donations for the benefit of such educational institutions and for the teachers and professors thereof is to elevate the standard of such institutions and to elevate the standard of the teachers and professors thereof by insuring to said teachers and professors an income in the event of disability arising from years of service and to insure and encourage independence of thought. That prior to October 1, 1909, to wit, on the ____ day of ____, 1908, the said Drury College, for the purpose of securing the benefits conferred by the said Carnegie Foundation, amended its said charter and by-laws by striking from the said charter and by-laws the provision heretofore set forth touching the organization of its trustees.

"Plaintiff states: That, by the charter and by-laws of said college which were in force at all times hereinafter mentioned, it was further provided that `no religious or political test as a condition precedent to the enjoyment of all the advantages afforded by Drury College for study and instruction shall ever be established or allowed by the board of trustees.' That, pursuant to said change in said articles, said Drury College became eligible, and by application in due form prior to September, 1907, was placed upon the accepted list of said Carnegie Foundation, and by reason of the premises its teachers and professors were free from any political or religious test.

"Plaintiff states that by profession he is an educator and qualified himself for such profession and has devoted himself entirely to such profession since July, 1906, and was a teacher at all times herein mentioned.

"Plaintiff states that on or about the ____ day of September, 1907, the said Drury College named him as one of its faculty and retained him as a professor in Greek in said institution.

"Plaintiff states that, by the terms of said employment, he was engaged as a member of said Drury College faculty for a period of one year, with the distinct promise and condition that, if after said probationary period of one year there was no difficulty, the said employment became permanent.

"Plaintiff states that the true meaning and intent of said engagement is that if the educational work of plaintiff was satisfactory, and no personal objections could be urged, said employment would be permanent. But plaintiff says it was not contemplated that the question of the religious convictions and beliefs of plaintiff should be considered a `difficulty,' within the meaning of said employment, and that the failure to retain plaintiff, as hereinafter set out and for the reasons hereinafter stated after he had passed said probationary period, were breaches of said contract of employment, as plaintiff further states that, in the notice of his engagement, it was distinctly stated that he would become a permanent member of said faculty if his first year's service as an educator were satisfactory.

"Plaintiff states that, at said date and at all dates hereinafter mentioned, he was a citizen of the United States and of the state of Missouri; that he was and is guaranteed religious freedom and the right of conscience and the right to worship according to the dictates of his conscience, as provided by Constitution of said United States, amendment No. 1, and by the Constitution of the state of Missouri, art. 2, § 5.

"Plaintiff states that, at the dates hereinafter set forth, there was in the said city of Springfield a public library, known as the Carnegie Library, and the same was and is maintained by general taxes levied upon the citizens of the said city of Springfield, Mo., and is also partially maintained, so far as literature is concerned, by contributions of books and magazines by citizens generally.

"Plaintiff states that on January 18, 1898, he was, and at all times since has been, a member of the Universal Brotherhood and Theosophical Society, the principal purpose of which is to teach universal brotherhood, to demonstrate that such brotherhood is a fact in nature, and by its teachings to make such brotherhood a living power in the life of humanity, and the subsidiary purposes of which are the study of ancient and modern religious science, philosophy, and art and to investigate the laws of nature and the divine powers in man.

"Plaintiff states that, at...