Opinion
35662.
DECIDED JUNE 13, 1955.
Action for damages. Before Judge Pharr. Fulton Superior Court. January 21, 1955.
Moreton Rolleston, Jr., Thomas B. Branch, Jr., for plaintiff in error.
Moise, Post Gardner, McKenzie, Kaler Shuman, contra.
The petition did not set forth a cause of action for a tortious conspiracy, and the trial court did not err in sustaining the general demurrer thereto.
DECIDED JUNE 13, 1955.
Herman L. Fellton sued Orkin Exterminating Company, Inc., Otto Orkin, Sanford Orkin, William Orkin, and Perry Kaye in the Superior Court of Fulton County, charging that they had injured him in the sum of $1,180,081 through a tortious conspiracy. The bill of exceptions shows that William Orkin was not served and has made no appearance in the action. The allegations of count I of the petition are as follows: On May 1, 1946, the plaintiff was employed by the defendant corporation as technical director and later was promoted to the position of a vice-president of the defendant corporation. In the early part of June, 1952, the defendant Perry Kaye asked the plaintiff to join a conspiracy to get Petty Bregman out of the company (both Kaye and Bregman being sons-in-law of the defendant Otto Orkin, president and majority stockholder of the defendant corporation); and when the plaintiff refused, the defendant Kaye threatened him that, if he didn't see the light, he would find himself out on a limb that could easily be sawed off. The plaintiff became worried about this, and during the same month asked Petty Bregman, executive vice-president of the defendant corporation, for an employment contract. After conferring with the defendant Otto Orkin, Bregman agreed to have the contract drawn up, but it was September of 1952 before the parties actually entered into such contract. In the meantime, the defendant Otto Orkin was convinced that the defendant corporation could do without the plaintiff and Petty Bregman and did get rid of Petty Bregman, who had been the executive vice-president of the defendant corporation. The defendant Otto Orkin joined in the conspiracy to get rid of the plaintiff, and as president of the defendant corporation had the authority to and did bind the corporation by conspiring to get rid of the plaintiff, and in discharging him was acting within the scope of his employment. The plaintiff contends that the defendant Otto Orkin was convinced by the coconspirators that the plaintiff was dangerous to the company, that his loyalty could not be trusted, and that he was laying the foundation in order that he might, upon the death of the defendant Otto Orkin, take control of the defendant corporation, thereby depriving the children of Otto Orkin of their inheritance. Due to these lies being told to him constantly during the summer of 1952, the defendant Otto Orkin joined the conspiracy to get rid of the plaintiff.
The employment contract was signed in September 1952, and among other things included the following pertinent provisions: The plaintiff was to receive a minimum salary of $20,000 per year. The contract was to run for five years. The plaintiff was to hold a position equal in stature to the position he held at the time the contract was entered into. The plaintiff's title and duties could be changed by the defendant corporation at any time. The plaintiff could not enter into the pest-control business as a competitor to the defendant corporation in any capacity for a period of two years upon the termination of the employment contract. The plaintiff would not have any interest whatsoever in the assets of the defendant corporation.
The petition shows that the plaintiff was regarded very highly by the employees of the defendant and its subsidiaries as well as by the whole pest-control industry. The coconspirators and the defendant corporation did not want and could not afford to have the plaintiff enter into a competitive business with the defendant corporation, and recognized the plaintiff's request for an employment contract as an opportunity to enter into a contract with him that contained restrictive covenants that would prohibit the plaintiff from entering into a competitive business for a sufficient length of time upon leaving the defendant corporation's employ to destroy his position in the pest-control business, and such conspirators proposed the employment contract as a part of the conspiracy, and the defendant corporation entered into the employment contract with no legitimate purposes of business, but only for the purpose of involving the plaintiff in a contract that would prohibit him from entering business as a competitor. The plaintiff entered into the contract in good faith. After the contract was entered into, as a part of the conspiracy the conspirators were to make life so unbearable for the plaintiff that he would resign from the defendant corporation. The conspiracy began to evolve slowly in September 1952, when the conspirators began to belittle and discredit the work of the plaintiff; to bypass the plaintiff in dealing with the personnel under him, he being responsible for their work; to listen in on his long-distance telephone calls; had his desk searched; promised one of the plaintiff's employees his job as soon as they could get rid of the plaintiff; declined to permit the plaintiff to become an expert consultant in sanitary engineering for the U.S. Public Health Service; transferred some of the employees under the supervision of the plaintiff without his knowledge and consent; and did several other acts, including spreading false rumors about the plaintiff which were intended to make the plaintiff resign. In January 1953, an organizational chart was issued by the defendant corporation showing that authority and position had been taken away from the plaintiff. The plaintiff, in a letter, asked for a clarification of this chart, but received no reply. On January 24, 1953, the plaintiff through his attorneys, requested a conference with Otto Orkin to discuss his position and employment, but received no reply from Orkin, and instead heard from Irving Kaler that he, Kaler, would talk to the plaintiff and his attorneys. On January 30, 1953, the plaintiff informed the defendant Otto Orkin and the defendant corporation through their attorneys that he considered the contract breached by the above-set-forth action, and that he would not perform any more services for them. The plaintiff had always performed duties in an efficient and proper manner, and no one has any just complaint about his services. In January 1952, the plaintiff had had an agreement with Petty Bregman, who was then executive vice-president, that the plaintiff would be paid $35,000 for his services in 1952, and when the employment contract was entered into in September 1952, the plaintiff and the defendant corporation entered into a side agreement through an exchange of letters (which letters are set forth as exhibits), whereby the plaintiff would not receive less than he had been receiving unless the business decreased. The plaintiff sues for $155,081 as the balance of his salary under the contract, $1,000,000 punitive damages, and $25,000 as attorney's fees because of the breach of the contract by the defendant corporation and the malicious, mean, illegal, and tortious conspiracy of the defendants.
In count II of the petition, it is alleged that the same defendants had injured the plaintiff in the sum of $1,180,081 as the result of the conspiracy set out as follows: The plaintiff entered into the employment of the defendant corporation in 1946, and worked for it until September 1952, when he entered into the employment contract set forth as an exhibit to count I of the petition. The contract was made a part of count II of the petition by reference. In June 1950, the defendant Perry Kaye entered upon a campaign to remove all obstacles from his path so that he could succeed the defendant Otto Orkin as the head of the defendant corporation. He was joined in this campaign by the defendant corporation, Otto Orkin, Sanford Orkin, and William Orkin. The campaign had as one of its objectives the task of removing the plaintiff from his office as a vice-president of the defendant corporation. After Petty Bregman was disposed of, the defendant Perry Kaye realized that the plaintiff was a dangerous rival for the position of chief executive of the defendant corporation to succeed Otto Orkin. Perry Kaye again enlisted the aid of the defendants Sanford Orkin and William Orkin, pointing out to them that, on the death of Otto Orkin, they and Bernice Kaye would own 75 percent of the stock in the defendant corporation, and that the plaintiff was the only remaining obstacle in their path to complete as well as legal control of the business — the plaintiff being an obstacle due to his position and prestige with the defendant corporation, its employees, and the pest-control business in general. The defendant Otto Orkin is a man over 65 years of age and subject to being easily persuaded by repeated statements of claims or conclusions. The defendant Otto Orkin joined the conspiracy, and as president of the defendant corporation had authority to and did bind the corporation by joining in the conspiracy to force the plaintiff to break the contract entered into between the plaintiff and the defendant corporation on September 1, 1952. As a result of the conspiracy, the contract was tortiously breached by the defendant corporation, and the purpose of the conspiracy achieved. The plaintiff sues for the $155,081 as the balance of the salary he would have received under the contract if it had not been breached, $1,000,000 as punitive damages, and $25,000 as attorney's fees. The conspiracy was for the purpose of undermining the plaintiff with his own employees and other employees of the defendant corporation, to drive the plaintiff from the defendant corporation, and to ruin his good name and reputation so as to eliminate him as a competitor in the pest-control business.
The defendants filed their general demurrer to the petition as amended. The trial court sustained the general demurrer and dismissed the petition, and it is to this ruling that the plaintiff excepts.
1. This is a tort action based upon a conspiracy. The conspiracy was to drive the plaintiff from the employ of the defendant corporation, to prevent him from becoming a competitor to the corporation, and to ruin his prestige in the pest-control business. "Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive, or immoral; or (b) something that is not unlawful, oppressive, or immoral, by unlawful, oppressive, or immoral means; (c) something that is unlawful, oppressive, or immoral by unlawful, oppressive, or immoral means." Brown Allen v. Jacobs' Pharmacy Co., 115 Ga. 429, 433 ( 41 S.E. 553, 57 L.R.A. 547, 90 Am. St. R. 126; Patterson Pope Motor Co. v. Ford Motor Co., 66 Ga. App. 41 (1) ( 16 S.E.2d 877). "In civil actions a conspiracy alone will not support a cause of action. Pursuant to the conspiracy there must be acts or means by which the scheme conceived in the conspiracy is given effect, and damages must result which flow from and have their causal connection in the conspiracy, save that when special damages are shown to result, punitive damages may inhere in the cause of action. Where a contract between one of the conspirators and the intended victim is employed, without the knowledge of the latter, as the means of effectuating the scheme previously conceived in the conspiracy, such contract is clothed in fraud; and where the ultimate consummation of the scheme is dependant on and is cloaked in the exercise of a right expressly provided by the contract, neither the color nor the immunity of contract will save the act from the ingredient of tort." Patterson-Pope Motor Co. v. Ford Motor Co., supra. The plaintiff contends that the action at hand falls within the category of the headnotes quoted above. The plaintiff requested an employment contract, and thereafter the parties entered into such contract. The plaintiff alleges that the defendant corporation seized this opportunity and the contract was used by the defendant corporation as a part of the conspiracy to keep him from entering into competition with the defendant corporation by inserting into the contract a restrictive covenant that would prohibit the plaintiff from entering into such competition for a period of two years after the contract was terminated, and that after such period of time the plaintiff's prestige in the pest-control business would be destroyed. The petition alleges that the treatment complained of by the plaintiff began during the summer of 1952, before the contract was entered into. At that time the plaintiff could have been fired at any time by the defendant corporation, for no contract was in existence between the parties. Code § 66-101. The plaintiff contends that the contract was actually breached by the defendant corporation. The restrictive covenants could not be enforced against the plaintiff if the contract was breached by the defendant corporation. The plaintiff could not be kept from becoming a competitor to the defendant corporation for the two-year period and thereby ruin his prestige in the pest-control business. "The gist of the action is not the conspiracy, but the tortious act perpetrated, and the damage flowing therefrom." King v. Citizens Bank of DeKalb, 88 Ga. App. 40, 44 ( 76 S.E.2d 86). See also Woodruff v. Hughes, 2 Ga. App. 361 ( 58 S.E. 551); Wall v. Seaboard Air-Line Railroad, 18 Ga. App. 457 (2) ( 89 S.E. 533). The petition does not show that the plaintiff was injured by the conspiracy, for, to prohibit the plaintiff from entering business as a competitor, the defendant corporation would have had to comply with the terms of the employment contract, and not breach it as it is alleged to have done. Accordingly, there is no merit in the contention that the trial court erred in sustaining the general demurrer to count one of the petition.
2. The plaintiff argues that count two of the petition is based upon the law as set forth in the case of Luke v. Dupree, 158 Ga. 590, 595 ( 124 S.E. 13), where it was said: "It is actionable maliciously or without justifiable cause to induce one to break his contract with another to the damage of the latter." The petition in this count alleges that the conspiracy was to make the plaintiff resign or otherwise leave the employ of the defendant corporation, so that he, the plaintiff, would breach the employment contract entered into between the plaintiff and the defendant corporation and thereby deprive him from becoming a competitor of the defendant corporation for a sufficient length of time to ruin his prestige and position in the pest-control business. The conspiracy, as alleged in count two of the petition, was never carried out, for it is alleged that the defendant corporation, not the plaintiff, breached the contract. The plaintiff was not induced to breach the contract. Instead of alleging, as set out in Duke v. Dupree, supra, that a person was induced to break his contract with another to the damage of the latter, count two alleges that there was a conspiracy to have the plaintiff break his contract to his own damage; but even so, the petition alleges that the defendant corporation, not the plaintiff, breached the contract to the damage of the defendant, since there was an unexpired contract on which the plaintiff might have brought an action. The trial court did not err in sustaining the general demurrer to count two of the petition.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.