Kirby v. Reynolds
| Decision Date | 03 November 1937 |
| Docket Number | 235. |
| Citation | 193 S.E. 412,212 N.C. 271 |
| Parties | KIRBY v. REYNOLDS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davie County; Felix E. Alley, Judge.
Action by Dallas C. Kirby against Robert R. Reynolds, and others. From the judgment, defendants appeal.
Reversed.
Allegations that defendants charged with conspiring together to cause discharge of plaintiff from office to his damage, entered into a "wanton, willful, malicious and unlawful combine conspiracy, confederation and agreement" to injure plaintiff, were merely conclusions of pleader, and were not considered on a demurrer thereto.
This is an action brought by plaintiff against defendants for conspiracy, alleging damage.
The complaint alleges, in substance, that the defendant Robert R Reynolds is a resident of North Carolina and elected Junior Senator from the state of North Carolina to the United States Senate. That the defendant Wesley E. MacDonald claims to be a resident and citizen of North Carolina, but in fact is a resident and citizen of the state of Virginia. That the Home Owners' Loan Corporation is a corporation existing under and by virtue of the law of the United States, with its principal office in Washington, D. C. That it maintains state and regional offices in the states of the Union. That T. C Abernathy is the manager in North Carolina, with offices in Greensboro, N.C. That plaintiff, while in the offices of Robert R. Reynolds talking to a party, was asked by the party where MacDonald was from. Plaintiff replied that MacDonald was from Virginia. Shortly afterwards, MacDonald called plaintiff into a private office and remarked to plaintiff that he had almost gotten him into trouble. That plaintiff expressed surprise and begged to be informed as to the circumstances. MacDonald told him that he had overheard the conversation. Plaintiff told MacDonald that he was of the opinion and was informed that he was a resident and citizen of Virginia, but if misinformed he would gladly correct his statement. MacDonald stated to plaintiff while he was born and reared in Virginia, that on his vacation he had acquired real estate and proposed to build a summer home and that he had registered as a voter and from then on he proposed to hold himself out as a citizen and resident of North Carolina. To this method of acquiring citizenship and the privilege of voting in North Carolina, plaintiff warned MacDonald against and called his attention to the laws of North Carolina requiring bona fide residence of one year before being eligible to vote. Attention was called to the criticism directed toward Senator Robert R. Reynolds for appointing as his secretary a nonresident, also the probable political reaction to Reynolds should his political enemies desire to make capital of the illegal registration of his secretary as a voter, and the possible criminal prosecution against MacDonald for making a false oath to his actually being a bona fide resident and his citizenship. Whereupon, MacDonald contended that his ownership of real estate in North Carolina gave him a right to vote and his registration was legal. That for no reason other than the fact that plaintiff refused to condone, agree, and to so state that MacDonald was a resident and citizen of North Carolina, MacDonald from time to time after the conversation before mentioned, changed his whole attitude towards plaintiff and in divers ways and means showed resentment of plaintiff's presence in or about the office of Senator Reynolds.
On February 20, 1934, without notice, reason or cause, and without any explanation to plaintiff, the locks on the doors of the office, which plaintiff had at all times since his stay in Washington had keys, were changed. That in September, 1934, plaintiff was introduced by John H. Cathey, of Asheville, N. C., to one Harvey L. Jones, assistant to the general counsel of the Home Owners' Loan Corporation, and as a result plaintiff obtained a position with the corporation as traveling attorney, at a salary of $3,600 a year. While working for said corporation, in October, 1934, a lady from Winston-Salem, N. C., came to Washington to see if she could obtain a loan, was refused because of certain legal complications, and, being unable to sufficiently explain the legal questions herself, she wired her attorney, William Porter, at Winston-Salem, to come to Washington. That plaintiff, after talking to Porter, also spoke to John H. Cathey, now assistant regional counsel for the Home Owners' Loan Corporation in Omaha, Neb., and one Harry L. Smith, now assistant regional counsel in Baltimore, Md. Both agreed with plaintiff that the loan was eligible and should be made. Plaintiff suggested to the attorney that he see Senator Robert R. Reynolds and ask him to take the matter up with the loan review committee in Washington, to the end that the loan be sent to Washington for review by said committee. That William Porter went to the office of Robert R. Reynolds to secure his help and assistance and shortly thereafter returned and said that Reynolds was out of the city and would not be back for at least a week. On learning that Senator Reynolds had returned, plaintiff called him over the telephone and advised him of the matter and suggested to Reynolds that the matter be taken up with Wallace Walker, a member of the review committee, that possibly he could help the party save her home by obtaining a loan. That Reynolds asked plaintiff to write him a letter about it and he would take the matter up as suggested. That sometime thereafter plaintiff had a letter from William Porter asking what, if anything, Reynolds had done, calling attention to the fact that his client was about to be ejected from her home. The letter reached plaintiff while on duty for the corporation in Charleston, W. Va., and he forwarded the letter to Reynolds. A few days thereafter he received a letter from Reynolds stating that his secretary, MacDonald, had taken the matter up with a Mr. Penniman. That the day following the forwarding of the letter to Reynolds, with reference to MacDonald's action in writing Penniman, he (plaintiff) was called over the telephone by MacDonald and was threatened with serious results, both physical and otherwise. The seriousness and the means of punishment were to be determined upon on the return of Reynolds from a hospital in Baltimore. Soon thereafter plaintiff was ordered to duty in Charleston, W.Va. for a few days and returned to Washington on December 20, 1934. That on the morning of December 21, 1934, by memorandum, he was ordered to report to W. T. Stockton assistant general counsel for the Home Owners' Loan Corporation at 2 o'clock p. m. That plaintiff went at the time and place mentioned and upon arrival there met along with Stockton, Col. Harvey L. Jones, assistant general counsel of the Home Owners' Loan Corporation, Mrs. Horace Russell, Wallace Walker, a member of the loan review committee, and the party that he had suggested that Reynolds contact in the interest of the loan, and John W. Childress, assistant to the chairman of the board of the Home Owners' Loan Corporation. Thereupon, Stockton stated to plaintiff that he had evidence that tended to show that he had suggested to a member of Congress how he might bring pressure to bear on a member of the corporation, meaning, as he understood, Wallace Walker. He stated to Stockton that he supposed he had reference to the letter which he had in hand and the letter he had written to Senator Reynolds, which Stockton said was correct. He stated to Stockton that he had written the letter, but denied having any intention of making any suggestion as he referred to or that the letter was susceptible of any such construction. "8. But this plaintiff further avers and alleges, that prior to the time of the meeting above referred to in the office of W. T. Stockton, that the defendants, Robert R. Reynolds and Wesley E. MacDonald had wantonly, willfully, maliciously and unlawfully, conspired, combined, confederated and agreed, for the purpose of injuring this plaintiff, and which did injure him to his great damage, to corruptly, wantonly, wilfully, maliciously and unlawfully use the influence and prestige of his office as United States Senator to persuade certain officials of the Home Owners' Loan Corporation, to-wit: John H. Fahey, Chairman of the Board above mentioned, and his assistant, John W. Childress, without cause and in total disregard of this plaintiff's rights or the effect on his character and professional reputation to have or caused to have this plaintiff discharged from his position with said defendant Home Owners' Loan Corporation; that the said John H. Fahey and the said John W. Childress, as officers and employees of the Home Owners' Loan Corporation, yielded to the wanton, willful, malicious and unlawful combine, conspiracy, confederation and agreement to influence and persuade them, and entering into said wanton, willful, malicious and unlawful combine, conspiracy, confederation and agreement with the said defendants, Robert R. Reynolds and Wesley E. MacDonald, at their solicitation and persuasion, and for the purpose of injuring this plaintiff, as above stated, did wantonly, willfully, maliciously and unlawfully have or cause to have this plaintiff discharged from his position as above stated, and to his great damage.
9. That notwithstanding the fact that this plaintiff was able to do and was doing, as he is informed, advised and believes, the work for which he was employed by the defendant Home Owners' Loan Corporation, and notwithstanding the fact that his record was good and that he was rendering satisfactory service in his position as a member of the legal division of the Home Owners' Loan Corporation, which said...
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