Doyle v. Kammeraad

• Decision Date: 02 January 1945
• Docket Number: No. 63.,63.
• Citation: 310 Mich. 233,17 N.W.2d 165
• Parties: DOYLE v. KAMMERAAD et al.
• Court: Michigan Supreme Court

310 Mich. 233

17 N.W.2d 165

DOYLE

v.KAMMERAAD et al.

No. 63.

Supreme Court of Michigan.

Jan. 2, 1945.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Trespass on the case by Leo M. Doyle against Peter A. Kammeraad and others, as certain public officers of the city of Grand Rapids, and against the city of Grand Rapids to recover damages resulting from alleged conduct of defendants in conspiring together to bring about plaintiff's dismissal from the police department of defendant city. From an order dismissing the suit with prejudice, on motion of defendants, plaintiff appeals.

Order dismissing suit affirmed, but without prejudice.

Before the Entire Bench.

Fred P. Geib, of Grand Rapids, for plaintiff and appellant.

Ganson Taggart, Merle C. Baker, and John F. Livingston, all of Grand Rapids, for defendants-appellees.

BOYLES, Justice.

Plaintiff-appellant, a former lieutenant of police of the city of Grand Rapids, filed a declaration in trespass on the case against the city of Grand Rapids and certain public officers of said city, namely, the city manager, the superintendent of police, the assistant chief of police, a lieutenant of police, a captain of police, a policewoman, and the assistant city attorney, claiming, in effect, that these individuals acted in concert or conspired together to bring about his dismissal from the police department of said city. The individual defendants filed a motion to dismiss the declaration on the grounds, among others, that the defendants were acting within the scope of their respective official duties, performing a governmental function, and that the declaration failed to state a cause for action. The city filed a separate motion to dismiss, adding as a ground for dismissal that no notice of plaintiff's claim had been served on the city as required by the city charter. The court granted the motions, entered an order dismissing the suit with prejudice, and plaintiff appeals.

Well-pleaded material allegations of fact in the declaration and necessary inferences to be drawn therefrom must be considered as true and viewed in the light most favorable to plaintiff; conclusions and opinions must be disregarded. Grevnin v. Collateral Liquidation, Inc., 302 Mich. 274, 4 N.W.2d 547. The only question is whether the declaration states a cause for action.

The order granting the motion to dismiss as against the city of Grand Rapids, a municipal corporation, is affirmed. Section 33 of title 5 of the city charter provides that if any claim is made against the city in an action of tort, the claimant shall serve written notice upon the city specifying certain things. No notice of plaintiff's claim for damages against the city was served. If the case had gone to trial the city would have been entitled to a directed verdict on motion. Moulthrop v. City of Detroit, 218 Mich. 464, 188 N.W. 433;Northrup v. City of Jackson, 273 Mich. 20, 262 N.W. 641.

The remaining question, the liability of the individual defendants, is stated in plaintiff's brief as follows: ‘When certain municipal employees successfully ‘gang up’ unlawfully to procure the discharge of a fellow municipal employee, may the discharged employee maintain an action for damages against those combining against him?'

The declaration is lengthy and in three counts. The factual situation alleged in the first count is substantially as follows:

On December 8, 1942, and for several years prior to that date plaintiff was a lieutenant of police in good standing in the police department of the city of Grand Rapids, in charge of the identification bureau;that for ten years and upwards plaintiff had been a member of said police department; that plaintiff had acquired a wide acquaintance and a good reputation; that defendant Peter A. Kammeraad was city manager and exercised supervisory control of the police department as director of public safety; that defendant Frank J. O'Malley was superintendent of police of said police department; that defendant Albert F. Scheiern was assistant chief of police of said department and superintendent of detectives; that defendant Al DeVries was a lieutenant of police subordinate to plaintiff in the bureau of identification of said police department; that defendant Leigh Slater is a captain of police in charge of the third precinct station, the immediate superior of one Joseph Schaab, a policeman of said department; that defendant Emma Geiser is a policewoman employed in said police department; that defendant Clifford C. Christenson was and is an assistant city attorney. As to Christenson, the case against him was dismissed by consent.

Plaintiff's declaration alleges: ‘That on and prior to December 8, 1942, the said individual defendants who were connected with said police department each for his or her own purpose and then unknown to plaintiff, desired to displace plaintiff as head of said identification bureau and to bring about his dismissal from said police department.’

Plaintiff further alleges that during the evening of December 8, 1942, plaintiff attended a regular meeting of the Metropolitan Club, an organization of policemen and firemen of said city of Grand Rapids; that said meeting was also attended by one Joseph Schaab, a policeman of said city, who was a casual acquaintance of plaintiff; that said Schaab was not on police duty during said evening and was not in uniform; that Schaab learned that among certain of plaintiff's superiors in said department and among certain other defendants herein there was intense jealousy of plaintiff and that it was desired to find cause to remove plaintiff from his said position. The declaration goes on to charge that between 11 and 12 o'clock that night Schaab, in order to curry favor with his superiors in the department, got plaintiff to take him (Schaab) on an errand in plaintiff's car to Wealthy street and return, which plaintiff did, and that plaintiff then proceeded to take his family to his own home; that later on the same night Schaab went in his own car to a section of the city where there were a number of houses of ill-repute, parked his car, was discovered there by one Moomey, a police officer who was on duty there: and plaintiff claims that thereupon Schaab ‘invented, concocted and narrated to said officer Moomey a false, slanderous and obscene account of action and doings then and there stated by said Schaab to have taken place between him and plaintiff herein in part during the said ride from the Young building to Wealthy street and return, and in part in said Young building. Said false, slanderous and obscene statements are set forth in full in plaintiff's exhibit A, hereto attached, reference whereto is prayed for greater certainty. Plaintiff avers that said statements insofar as they purport to impute wrongdoing to plaintiff, are false in fact and are the concoctions of a distorted and insanely ambitious mind, made by said Schaab for the purpose of currying favor with his superiors and with others envious of plaintiff, to enable them to consummate their purpose to find a reason or excuse to dismiss plaintiff from the said police department.’

The exhibit A referred to details conduct said to be charged...