Vigoda v. Barton
| Decision Date | 09 January 1959 |
| Parties | David VIGODA v. Walter E. BARTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert J. Sherer Boston, (Robert T. Abrams Boston, with him) for plaintiff.
Joseph H. Elcock, Jr., Asst. Atty. Gen., for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
To a declaration containing six counts in tort a demurrer was sustained, and the plaintiff appealed. Count 1 is entitled 'for tortious interference,' counts 2 and 6 are for slander, and counts 3, 4, and 5 are for libel.
1. The first question is the interpretation of the demurrer, which reads: The plaintiff contends that the first ground of demurrer is addressed to the entire declaration although referring only to count 1. He cites the well known rule that a demurrer to a declaration as a whole must be overruled if any count is good, Hiller v. American Tel. & Tel. Co., 324 Mass. 24, 25, 84 N.E.2d 548; and the defendant has not argued that any of the other counts are bad. We think, however, that the unfortunate phraseology of the first sentence is not to be taken as requiring an absurd construction of the first ground which specifies count 1.
2. We next consider whether count 1 does state a cause of action. The count is needlessly prolix, makes many immaterial allegations, contains statements of evidence, and is argumentative. Any attempt to try this count to a jury would surely lead to confusion. Nevertheless, as the defendant has not relied on formal grounds, ours is the burden of trying to search out the substance of the alleged cause of action and of restating it in the language necessary for legal analysis. On January 1, 1956, the plaintiff, who previously had been an assistant psychiatric social worker at Boston State Hospital, was appointed psychiatric social worker for the department of mental health, a position under the classified civil service. He 'was in an advantageous position' as to status, and held the new position at Boston State Hospital until March 24, 1956, when the defendant discharged him after causing to be inserted in the plaintiff's file a portion of a record of another person which was used as a pretext for his discharge. The plaintiff was compelled to bring mandamus proceedings to be restored to his position.
The declaration fails to state who the defendant was. We know from the mandamus proceedings that he was the superintendent of the hospital. Vigoda v. Superintendent of Boston State Hospital, 336 Mass. 724, 147 N.E.2d 794.
At the time of his discharge the plaintiff must have been in the probationary period of six months under the civil service law, and was subject to discharge if his conduct, capacity, or the quality of his work was not satisfactory to the appointing authority. G.L. c. 31, § 20D. The defendant was empowered to appoint and remove 'necessary subordinate officers and other persons.' G.L. c. 123, § 28 (). The defendant, accordingly, himself had the power of removal of the plaintiff in the circumstances enumerated. It is not alleged that the plaintiff's conduct, capacity, or the quality of his work was satisfactory to the defendant.
Count 1 does not state a cause of action for tortious interference with a business relation. There is no allegation of any inducement brought to bear upon a third person. Count 1 does not fall within Restatement: Torts, § 766, relied upon by the plaintiff, which reads: '* * * one who, without a privilege to do so, induces or otherwise purposely causes a third person not to * * * enter into or continue a business relation with another is liable to the other for the harm caused thereby.' See Moran v. Dunphy, ...
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