Home ALBERT DATZ vs. NORTON N. KELLER & others.

347 Mass. 766

February 28, 1964

Interlocutory and final decrees affirmed. The plaintiff appeals from an interlocutory decree sustaining defendants' demurrer to his amended substitute bill of complaint and from a final decree dismissing his bill. The minority stockholder's bill seeks a declaratory judgment under G. L. c. 231A. The allegations in part are that the defendants Keller, the officers and directors of the corporation, have conspired to conduct the corporate affairs for their own benefit, have misappropriated corporate funds, have paid themselves excessive fees for services rendered, have refused to call annual stockholders' meetings, and have denied the plaintiff permission to examine the corporate documents stipulated by G. L. c. 155, Section 22. Ordinarily there is a condition precedent to the maintenance of a minority stockholder's bill: separate demands must be made upon the directors and the stockholders that they vote to have the corporation sue to redress wrongs done to it. However, allegations of fact that both a majority of the directors and the holders of a majority stock interest are in the group of wrongdoers, or under their control, will excuse a plaintiff from making applications which would be futile. See Bartlett v. New York, N. H. & H. R.R. 221 Mass. 530 , 532-539; S. Solomont & Sons Trust, Inc. v. New England Theatres Operating Corp. 326 Mass. 99 , 113-115. The plaintiff's bill contains no allegations as to the ownership of the corporate stock, and therefore no excuse for his failure to make a demand upon the stockholders appears. Moreover the complaint is replete with vague, inadequate allegations, unsubstantiated conclusions, and surplusage. See G. L. c. 214, Section 12. The personal cause of action grounded in the plaintiff's right to inspect certain corporate documents under G. L. c. 155, Section 22, is not appropriately brought in this suit under G. L. c. 231A.

Home TILLYE LEVENTHAL & another vs. AMERICAN AIRLINES, INC.

347 Mass. 766

February 28, 1964

Exceptions overruled. This is an action of tort for injuries sustained by the female plaintiff in New Jersey while a passenger in an airplane owned and operated by the defendant; and, by the male plaintiff, her husband, for consequential damages. The judge of the Superior Court directed verdicts for the defendant against both plaintiffs, who excepted. The plaintiffs did not present any evidence that the defendant was negligent but argue that "the doctrine of res ipsa loquitur applies to this case." Res ipsa loquitur is a rule permitting the jury to draw certain inferences in certain circumstances. Pinney v. Hall, 156 Mass. 225 , 225-226. Thus, the applicability of res ipsa loquitur is to be determined from the law of the forum. Restatement: Conflict of Laws, Section 595. See

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Gould v. Boston & Maine R.R. 276 Mass. 114 , 117; Holland v. Boston & Maine R.R. 279 Mass. 342 , 345; Peterson v. Boston & Maine R.R. 310 Mass. 45 , 47-48; Harper & James, Law of Torts, Section 30.2, p. 1686. Under the law of this commonwealth, the doctrine of res ipsa loquitur is not applicable to the facts in this case. Wilson v. Colonial Air Transport, Inc. 278 Mass. 420 , 424-426.