Johnson v. East Boston Sav. Bank

• Citation: 290 Mass. 441,195 N.E. 727
• Parties: JOHNSON v. EAST BOSTON SAV. BANK et al.
• Decision Date: 30 April 1935
• Court: United States State Supreme Judicial Court of Massachusetts

290 Mass. 441

195 N.E. 727

JOHNSON v. EAST BOSTON SAV. BANK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 30, 1935

Action of tort by Alvin P. Johnson against the East Boston Savings Bank and others. From an order sustaining a demurrer to the declaration, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Suffolk County Pinanski, Judge.

E. S Farmer, of Boston, for appellant.

A. Brayton, of Boston, for appellees.

CROSBY, Justice.

This is an action of tort to recover damages for alleged illegal and improper conduct on the part of the individual defendants, committed in pursuance of an alleged conspiracy.

The plaintiff in his brief states that the purpose of the alleged conspiracy is set forth in the record and is ‘ that on or about May 1, 1929 the defendant corporation, through its officers and agents, and the said individual defendants * * * conspired together to injure and defame the plaintiff and deprive him of the reputation for integrity and faithful performance of his duties which had inured to him as a result of his long service in the position and offices as heretofore described * * * that the defendants did corruptly conspire and agree between themselves and the other members of the Board heretofore described as deceased to cause to make it appear to the public in general and more particularly to those of the public who were interested in banking matters that the termination of the services of the plaintiff as treasurer of the defendant bank was not in truth and fact voluntary but was brought about as a result of some improper conduct on his part while in such position of trust, meaning and intending thereby to deprive the plaintiff of his well-earned reputation for probity and integrity gained by his long and faithful service as aforesaid.’

The plaintiff contends that the defendants occupied peculiar positions of power, coercion and control over the reputation of the plaintiff as a banking man, both in the banking community and with the general public; that this peculiar and unique position of control and power of coercion is set forth in the following allegations: ‘ 1. That the plaintiff had been in the employ of the defendant bank as an employee and treasurer for 46 years * * * and that the defendants as officers were superior to the plaintiff, who held his office according to the by-laws of the bank, (Article 2 thereof) at the pleasure of the trustees of said bank. * * * 2. That the individual defendants, together with the persons described as deceased, constituted the entire board of investment and that under the by-laws of said bank the management thereof was reposed in said board of investment. * * * 3. That the three individual defendants, together with those named as deceased, were the only active members of the board of trustees. * * * 4. That these defendants were in possession and control of the books and records of both the board of investment and board of trustees. * * * 5. That due to their active connection with the bank the individual defendants dominated all meetings of the board of trustees and caused only such matters as they desired to be brought to the attention of their co-trustees. * * * 6. That they controlled the recitals in all records of meetings of trustees and that the remaining inactive trustees relied exclusively on the individuals named as defendants and the individuals described as deceased for all information and guidance as to the matters to be discussed and passed on by them. * * * 7. That as a result of these officers' positions, dominance of meetings and control of records and the relation of the plaintiff in his office to these defendants, that the defendants were in a peculiar and effective position of power to effect and control the reputation of the plaintiff.’ The plaintiff further contends ‘ that the gravamen of the declared wrong was the combination or confederation of the men occupying sucy positions and exercising such power’ ; that the injury to him ‘ resulted not so much from the acts done but rather from the power and force such acts acquired from a combination of defendants occupying the positions and exercising the power acquired from their unique situation’ ; and that the following specific allegations of the bill sufficiently set forth a legal cause of action: (1) ‘ That the defendants, illegally and corruptly purporting to act as members of the Board of Investment, improperly and illegally accepted a resignation addressed to the trustees of an office within the power of the trustees rather than of the board of investment’ ; (2) ‘ that the defendants illegally recorded the plaintiff's resignation on the records of the board of investment with full knowledge and with the purpose of having it read by the bank examiner and accountants of the bank to erroneously give them the impression that the termination of the plaintiff's connection with the bank was involuntary and the result of improper conduct on his part, and that such records were seen and read by the parties so intended with the consequent impression therefrom’ ; (3) ‘ that the defendants improperly prepared a call for a regular meeting of the trustees and wrongfully omitted therefrom any mention of the resignation of the plaintiff as an item of business to be transacted at this meeting for the purpose as set forth’ ; (4) ‘ that at said meeting the defendants appointed a co-defendant to draft resolutions of appreciation of said trustees for the faithful services of the plaintiff but corruptly arranged that the records of said meeting omitted to note the appointment of a member to draft such resolutions and maliciously refused to permit said resolutions to be drawn’ ; (5) ‘ that in response to specific requests of the press in pursuance of said purpose the defendants declined to state the reason for the plaintiff's resignation, with a view that their silence might be erroneously interpreted, to the damage of the plaintiff's reputation’ ; (6) ‘ that in response to inquiries of the general public and members of the banking community as to the whereabouts of the plaintiff the defendants answered: ‘ Mr. Johnson is no longer with this bank. We know nothing of his whereabouts.’ That the latter part of this response was untrue to the knowledge of the defendants and corruptly stated in pursuance of the plan as set forth.'

The defendants demurred to the plaintiff's substitute declaration on several grounds, the first being that the matters contained in the declaration are insufficient in law to enable the plaintiff to maintain his action. From the order sustaining the demurrer the plaintiff appealed.

‘ The averment of a conspiracy in the declaration does not ordinarily change the nature of the action, nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff, and the damage thereby done [him] wrongfully. Where damage results from an act which if done by one alone would not...