Kirby v. Reynolds
212 N.C. 271
N.C.
1937
Check Treatment
.ClaeksoN, J.

We think the demurrer of defendants should have been sustained on the ground that “the complaint does not state facts sufficient to constitute a cause of action.” N. C. Code, 1935 (Michie), sec. 511 (6).

0. S., 535 is as follows: “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.”

In Blackmore v. Winders, 144 N. C., 212 (215-16), speaking to the subject we find: “The uniform rule prevailing under our present system is that, for the purpose of ascertaining the meaning and determining the effect of a pleading, its allegations shall be liberally construed, with a view to substantial justice between the parties. Revisal, sec. 495 (C. S., 535). This does not mean that a pleading shall be construed to say what it does not, but that if it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. Buie v. Brown, 104 N. C., 335. As a corollary of this rule, therefore, it may be said 'that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient,” citing numerous authorities. N. C. Frac. & Proc. in Civil Cases (McIntosh), see. 443, p. 454; Fairbanks, Morse & Co. v. Murdock Co., 207 N. C., 348 (351).

In Manning v. R. R., 188 N. C., 648 (663), citing a wealth of authorities, it is said: “A demurrer is the formal mode of disputing the sufficiency in law of the pleading to which it pertains. It admits only such averments as are well pleaded and such inferences as may be drawn therefrom, but it does not admit any legal inferences or conclusions of law that may be alleged. We must therefore refer to the complaint in *280order to determine tbe scope and effect of tbe defendants’ admissions.” Conrad v. Board of Education, 190 N. C., 389 (393); Distributing Corp. v. Maxwell, Comr. of Revenue, 209 N. C., 47 (48).

Tbe language in Harley & Lund Corp. v. Murray Rubber Co., 31 Fed. (2nd), 932 (934-5), is pertinent to tbe complaint in tbis action: “Much, indeed, bas been written about tbe admissible latitude in pleadings sounding in 'conspiracy.’ There is, however, no more reason why a pleader in such actions should not definitely commit himself to tbe facts on which be means to stand than elsewhere; indeed there is vastly less. Tbe notion that it is enough vaguely to charge defendants with 'conspiracy,’ garnished with such adverbs as 'maliciously’ and 'wrongfully,’ has done more to bewitch tbe whole subject than anything else. Whether, if tbe plaintiff at bar is properly confined, any substance will not evaporate with tbe rhetoric, we do not find it necessary now to decide.”

Tbe complaint is bottomed on conspiracy, alleging damage. In S. v. Martin, 191 N. C., 404 (406), we find: “A conspiracy bas been defined to be 'an engagement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.’ S. v. Dalton, 168 N. C., 204. A conspiracy bas been further defined as a 'combination among two or more persons to accomplish, by concerted action, an unlawful purpose, or a purpose not in itself unlawful, by unlawful means. But whether it is a wrongful or illegal conspiracy depends not upon the name given by tbe pleader, but upon tbe quality of tbe acts charged to have been committed. If these acts are not wrongful or illegal, no agreement to commit them can properly be called an illegal and wrongful conspiracy.’ Ballentine v. Cummings, 70 Atl., 548, . . . (p. 407). However, tbe proof must be sufficient to create more than a suspicion. Testimony that .raises no more than a suspicion is not sufficient to be submitted to a jury as evidence of guilt. Perry v. Ins. Co., 137 N. C., 404. Tbe principle is thus stated in Brown v. Kinsey, 81 N. C., 245: 'The rule is well settled that if there be no evidence, or if tbe evidence be so slight as not reasonably to warrant tbe inference of tbe fact in issue or furnish more than materials for a mere conjecture, tbe court will not leave tbe issue to be passed on by tbe jury.’ Sutton v. Madre, 47 N. C., 320; Liquor Co. v. Johnson, 161 N. C., 77; Seagroves v. Winston, 167 N. C., 207; S. v. Bridgers, 172 N. C., 882; S. v. Prince, 182 N. C., 790.”

In R. C. L., Vol. 15, part sec. 29, p. 68, is tbe following: “In a leading English case it seems to have been taken for granted by all tbe judges, affirmative and dissentient, that if tbe defendant bas used a means that could be denominated unlawful in order to bring about an employee’s discharge be would be liable. As tbis represents tbe general *281doctrine it becomes necessary to consider wbat specific means or modes of interference witb a man in bis trade or calling can be said to be unlawful. Tbe most obviously unlawful of all means is of course violence. As a general proposition any interference witb tbe free exercise of another’s trade or occupation or means of livelihood by preventing-people by force, threats, or intimidation from trading witb, working for, or continuing him in their employment, is an actionable wrong.”

Tbe long and verbose complaint of plaintiff indulges in generalities and conclusions: That defendants bad prior thereto conspired “to persuade certain officials of tbe Home Owners’ Loan Corporation” to cause plaintiff to be discharged, using “tbe influence and prestige of bis office as United States Senator” for such purpose. Par. 9. “. . . That yielding to tbe influence and persuasion and thereby entering into same witb the defendants Bobert E. Eeynolds and Wesley E. MacDonald, in furtherance of their wanton, willful, malicious, and unlawful combine, conspiracy, confederation and agreement to injure this plaintiff, as above stated, the said John H. Fahey and John W. Childress, as officers and agents of tbe defendant Home Owners’ Loan Corporation, and while acting as officers and agents of said defendant corporation did force this plaintiff, against bis will, and under threats of discharge upon his failure to do so, to resign his position as traveling attorney. . . .” Par. 12 : That but for the conspiracy and resulting resignation plaintiff “would have held his position for at least two years and perhaps longer.” The complaint does not allege any tenure of office whatever. Except for redundant use of the words “wrongfully, maliciously, wantonly, and unlawfully,” the nearest to an allegation of fact as to defendants appears in paragraph 8: “. . . that the defendants . . . had conspired ... to use the influence and prestige of his office as U. S. Senator to persuade certain officials of Home Owners’ Loan Corporation . to have this plaintiff discharged,” and as a result thereof plaintiff resigned a position to Avhich he alleges no tenure of office and no term of employment.

The complaint shows lack of discretion on plaintiff’s part in writing a letter to a United States Senator attempting to get him to use the influence of his position to cause the review committee of the Home Owners’ Loan Corporation to make a loan which had been denied. This attempt to go over the heads of the executive officers of the Home Owners’ Loan Corporation, the complaint clearly shows, was the reason plaintiff’s resignation was demanded. The letter is not set out in the complaint, but it was the outcome of an appeal by plaintiff himself to Senator Eeynolds over the telephone, who requested a letter to him stating the facts. This letter was turned over to the Home Owners’ Loan Corporation by Senator Eeynolds to aid the plaintiff in getting *282tbe loan. It was tbe individual act of Reynolds, no semblance of any conspiracy witb MacDonald. Tbe Home Owners’ Loan Corporation took offense at plaintiff’s letter — benee tbe request for bis resignation.

Tbe whole complaint indicates that tbe controversy was between plaintiff and Senator Robert R. Reynolds’ secretary, Wesley E. MacDonald, and not witb Reynolds. Plaintiff was not discharged, be'resigned. No violence or such a threat or intimidation which was sufficient in law to show that tbe resignation was not tbe voluntary act of plaintiff. He gave as reference in bis application for another position bis former superiors in tbe Home Owners’ Loan Corporation. He stayed witb tbe government until tbe Congressional Act (N. R. A.) under which be was employed was declared unconstitutional by tbe Supreme Court of the United States.

Tbe use in tbe complaint of tbe words “That tbe defendants Robert R. Reynolds and Wesley E. MacDonald bad wantonly, willfully, maliciously, and unlawfully conspired, combined, confederated, and agreed for tbe purpose of injuring tbe plaintiff and which did injure him, to bis great damage,” etc., is a conclusion of tbe pleader, and there are not sufficient facts alleged in tbe complaint to sustain tbe allegations that there was a conspiracy between Reynolds and MacDonald to injure plaintiff, causing damage. Tbe allegations show a mere conjecture, suspicion or guess, which has no probative force.

Where two defendants were indicted for conspiracy, the court properly instructed that tbe jury must find either both guilty or both not guilty. S. v. Lewis, 185 N. C., 640. Conspiracy, not its execution, is tbe offense. S. v. Lea, 203 N. C., 13; certiorari to U. S. Supreme Court denied, 287 U. S., 649, 77 L. Ed., 561.

It goes without saying that tbe complaint is wholly insufficient .to show anything done by the Home Owners’ Loan Corporation to bold it for conspiracy if it, being a governmental agency, could be held on a conspiracy charge.

It has been frequently held that an employee who resigns has no cause of action against his employer for wrongful discharge. Tbe plaintiff was sui juris and voluntarily resigned bis position. Tbe allegations in tbe complaint are not sufficient to charge duress. Tbe conclusion of tbe pleader is not sufficient. Tbe complaint clearly indicates that plaintiff was an employee at will, witb tbe right of bis employer to discharge him at any time. In fact, be alleges, “This plaintiff was forced to resign or take tbe alternative of being discharged,” etc. A threat to do what’ one has a legal right to do cannot constitute duress. 13 C. J., 399; Smithwick v. Whitley, 152 N. C., 369; Bank v. Smith, 193 N. C., 141; Randolph v. Lewis, 196 N. C., 51.

Tbe pleading alleges no tenure of office. In Richardson v. R. R., 126 N. C., 100 (101), we find: “Tbe engineers have a right to quit when*283ever they get ready, and the company has a right to discharge any engineer at any time without cause. But upon the plaintiff’s own showing, his discharge was within the right of the defendant', and not wrongful, and malice disconnected with the infringement of a legal right cannot be the subject of an action.” Holder v. Mfg. Co., 138 N. C., 308.

The Home Owners’ Loan Corporation was a governmental agency and Eeynolds a United States Senator. How far the conduct of Senator Eeynolds was privileged we are not called upon to say. In Spalding v. Vilas, 161 U. S., 780, it was held: “The head of an executive department cannot be held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress and in respect of matters within his authority, by reason of any personal or even malicious motive that might be alleged to have prompted his action.”

In Newell Slander and Libel (4th Ed.), sec. 445, p. 482, it is written: “Criticism of the official conduct of a public officer is always a proper subject for public discussion and information, and a communication made in good faith for the purpose of redressing some injury or to prevent or punish a public abuse is privileged, if addressed to a person or board having an interest or duty in the matter, or jurisdiction to entertain the complaint or redress the grievance. Eesidents of a place may petition the mayor and aldermen to revoke the license of a merchant, or may petition the board of excise protesting against the licensing of a tavern, and their communications will be privileged. This privilege, however, must not be abused, for, if such communication be made maliciously and without probable cause, the pretense under which it is made, instead of furnishing a defense, will aggravate the case of the defendant.” S. v. Publishing Co., 179 N. C., 720.

On the plaintiff’s complaint, liberally construed, it is wholly insufficient to show a conspiracy between the defendants causing damage to plaintiff. In the broad aspect of the complaint it would indicate a quarrel between, as it seems, two former friends — the plaintiff and defendant MacDonald, secretary to Senator Eeynolds — as to whether MacDonald was a resident and citizen of Yirginia and had become a bona fide resident of North Carolina. The language of both in this regard became heated and acrimonious. The aftermath, in regard to overriding the review committee of the Home Owners’ Loan Corporation on the loan which plaintiff was trying to obtain for another, is a different matter. The telephone conversation of plaintiff, in which he appealed to Senator Eeynolds, was about the loan. A new and distinct matter. Eeynolds requested plaintiff to write him about the matter. The letter was not attached to or set out in the complaint. Plaintiff’s letter to Senator Eeynolds reached the Home Owners’ Loan. Corpora*284tion, tbe officers of which seem to have taken offense at same, bringing about plaintiff’s resignation without legal duress. There is nothing in the pleadings except a conclusion that plaintiff did not hold his position at will. There is no direct or circumstantial allegation in the complaint to show any conspiracy between Senator Eeynolds and his secretary, MacDonald, to injure plaintiff. The allegations in the pleadings, “their wanton, willful, malicious, and unlawful combine, conspiracy, confederation, and agreement to injure this plaintiff,” etc., are not borne out by the long details of the pleadings, and were merely conclusions of the pleader and not considered on a demurrer.

On the pleadings the demurrer must be sustained and the judgment of the court below

Beversed.