justify an inference that the loss was caused by the fraud alone, the
averment seems hardly more than a statement of a conclusion of law from
the facts given previously. Upon demurrer we think the pleading is
defective in not averring facts which exclude the possibility that the
testatrix changed her purpose in regard to this legacy, and which show
that the fraud continued operative to the time of her death, and thus
caused the loss to the plaintiff.
We think the charge of fraud is a sufficient statement of an actionable
wrong. It charges much more than an expression of opinion by which the
testatrix was misled. The defendant is accused of having dealt with a
matter of fact, and with having fraudulently procured the making of the
codicil without sufficient attestation of it.
We infer from the record that the testatrix was domiciled in
Massachusetts, and that the construction of the will is governed by the
law of this State. Welch _v._ Adams, 152 Mass. 74, 79; Sewall _v._
Wilmer, 132 Mass. 131, 136.
_Demurrer sustained._[556]
DULIN _v._ BAILEY
SUPREME COURT, NORTH CAROLINA, NOVEMBER 29, 1916.
_Reported in 172 North Carolina Reports, 608._
CLARK, C. J. The complaint alleges that after the death of W. A. Bailey
the defendants conspired to deprive the plaintiff and others of the
benefits of his last will by removing from the paper writing to which
the sheet of paper containing the alleged signature of the deceased was
attached, that part providing for the legacy to the plaintiff and others
and substituting other provisions therefor. The plaintiff contends that
thereby a previous will has been admitted to probate. In the course of
the proceeding the plaintiff asked for the appointment of a commissioner
to take the examination of the defendants in the nature of a bill of
discovery. The defendants demurred that the complaint did not state a
cause of action. The court sustained the demurrer, and held that unless
the will that had been proven in common form was attacked and set aside
by caveat, the plaintiff could not maintain the cause of action set out
in the complaint. This put an end to the plaintiff’s further progress in
the cause, and she took a nonsuit and appealed.
The plaintiff is not seeking to attack the will on record, nor to
probate what she alleges was a subsequent will. She is not seeking to
recover anything out of the estate, but is bringing an action of tort
against the parties who, as she alleges, conspired and injured her by
removing the clause of, and the signature to, what was a subsequent will
by which she would have received a legacy. It is an action of spoliation
by which she alleges the defendants have prevented her receiving the sum
of money which was due her if they had not fraudulently altered and
defaced the subsequent will. She alleges that she does not attempt to
set up the second will because the evidence accessible to her would not
prove its entire contents. She prefers, therefore, to bring this action
against the defendants for their wrong-doing in fraudulently destroying
the part of the will which was beneficial to herself.
Though this action seems to be of the first impression in this state,
and is doubtless a very unusual one, there is foundation and reason for
the action upon well-settled principles of law, and we are not entirely
without precedent. In Tucker _v._ Phipps, 3 Atkins, 359; cited in
Barnesly _v._ Powell, 1 Ves. Sr. 284, it was held that, the spoliation
being clearly proven, the plaintiff could maintain his action without
setting up the will by a probate. It was held that:
“Where a will is destroyed or concealed, while the general rule is to
probate the alleged will by proof in the Ecclesiastical Court [which was
there the court for probate wills], yet the legatee might bring his
action for the damage sustained by spoliation and suppression.”
In that case the spoliation was alleged to have been a destruction or
concealment of the will by the executor. Such action against a stranger
is even more appropriate than an independent action against the
executor. Tucker _v._ Phipps is to be found in 26 English Reports
(Reprinted) 1008. Another case very much in point is Barnesley _v._
Powell, 1 Ves. 119, 27 English Reports (Reprinted) 1034, in which Tucker
_v._ Phipps is cited as authority and the court also refers with
approval to
“A late case where the defendant burned a will, in which was a legacy to
the plaintiff, so that it could not be proven in the Ecclesiastical
Court [which cannot prove a will on loose parts of the contents of it],
yet on the evidence of there being such a will, and the defendants
destroying it, the court decreed the legacy to the plaintiff, as the
defendant by his own iniquity had prevented the plaintiff from coming at
it.”
There may be other precedents, but the instances must have been rare.
Even if there had been no precedent, it would seem that, upon the
principle of justice that there is “no wrong without a remedy,” the
plaintiff is entitled to maintain this action, if, as she alleges, the
defendants conspired and destroyed the subsequent will in which the
legacy was left her. If she cannot prove the destroyed will because
unable to prove the entire contents thereof (_In re_ Hedgepeth, 150 N.
C. 245, 63 S. E. 1025), surely she is entitled to recover of the
defendants for the wrong they have done her by the conspiracy and
destruction of the will, and the measure of her damages will be the
legacy of which she has been deprived. It may be very difficult for her
to prove her allegations by legal evidence and satisfactory to a jury,
but with that we have nothing to do. The only question presented to us
is the ruling of the court below that the complaint does not state a
cause of action, and in this we think the court below was mistaken.
As the action is not to set up the will, nor against the estate, but
against the defendants individually for their tort, the action could be
brought in the county where the plaintiff resides.
Reversed.
RATCLIFFE _v._ EVANS
IN THE COURT OF APPEAL, MAY 26, 1892.
_Reported in [1892] 2 Queen’s Bench, 524._
Motion to enter judgment for the defendant, or for a new trial, by way
of appeal from the judgment entered by Mr. Commissioner Bompas, Q. C.,
in an action tried with a jury at the Chester Summer Assizes, 1891.
The statement of claim in the action alleged that the plaintiff had
for many years carried on the business, at Hawarden in the county of
Flint, of an engineer and boiler-maker under the name of “Ratcliffe &
Sons,” having become entitled to the good-will of the business upon
the death of his father, who, with others, had formerly carried on the
business as “Ratcliffe & Sons;” that the defendant was the registered
proprietor, publisher, and printer of a weekly newspaper called the
“County Herald,” circulated in Flintshire and some of the adjoining
counties, and that the plaintiff had suffered damage by the defendant
falsely and maliciously publishing and printing of the plaintiff in
relation to his business, in the “County Herald,” certain words set
forth which imported that the plaintiff had ceased to carry on his
business of engineer and boiler-maker, and that the firm of Ratcliffe
& Sons did not then exist.
At the trial the learned commissioner allowed the statement of claim
to be amended by adding that “by reason of the premises the plaintiff
was injured in his credit and reputation, and in his said business of
an engineer and boiler-maker, and he thereby lost profits which he
otherwise would have made in his said business.” The plaintiff proved
the publication of the statements complained of, and that they were
untrue. He also proved a general loss of business since the
publication; but he gave no specific evidence of the loss of any
particular customers or orders by reason of such publication. In
answer to questions left to them by the commissioner, the jury found
that the words did not reflect upon the plaintiff’s character, and
were not libellous; that the statement that the firm of Ratcliffe &
Sons was extinct was not published _bona fide_; and that the
plaintiff’s business suffered injury to the extent of £120 from the
publication of that statement. The commissioner, upon those findings,
gave judgment for the plaintiff, for £120, with costs. The defendant
appealed.[557]
The following judgment of the court (LORD ESHER, M. R., BOWEN, and
FRY, L.JJ.), was read by
BOWEN, L. J. This was a case in which an action for a false and
malicious publication about the trade and manufactures of the
plaintiff was tried at the Chester assizes, with the result of a
verdict for the plaintiff for £120. Judgment having been entered for
the plaintiff for that sum and costs, the defendant appealed to this
court for a new trial, or to enter a verdict for the defendant, on the
ground, amongst others, that no special damage, such as was necessary
to support the action, was proved at the trial. The injurious
statement complained of was a publication in the “County Herald,” a
Welsh newspaper. It was treated in the pleadings as a defamatory
statement or libel; but this suggestion was negatived, and the verdict
of the jury proceeded upon the view that the writing was a false
statement purposely made about the manufactures of the plaintiff,
which was intended to, and did in fact, cause him damage. The only
proof at the trial of such damage consisted, however, of evidence of
general loss of business without specific proof of the loss of any
particular customers or orders, and the question we have to determine
is, whether in such an action such general evidence of damage was
admissible and sufficient. That an action will lie for written or oral
falsehoods, not actionable _per se_ nor even defamatory, where they
are maliciously published, where they are calculated in the ordinary
course of things to produce, and where they do produce, actual damage,
is established law. Such an action is not one of libel or of slander,
but an action on the case for damage wilfully and intentionally done
without just occasion or excuse, analogous to an action for slander of
title. To support it actual damage must be shown, for it is an action
which only lies in respect of such damage as has actually occurred. It
was contended before us that in such an action it is not enough to
allege and prove general loss of business arising from the
publication, since such general loss is general and not special
damage, and special damage, as often has been said, is the gist of
such an action on the case. Lest we should be led astray in such a
matter by mere words, it is desirable to recollect that the term
“special damage,” which is found for centuries in the books, is not
always used with reference to similar subject-matter, nor in the same
context. At times (both in the law of tort and of contract) it is
employed to denote that damage arising out of the special
circumstances of the case which, if properly pleaded, may be
superadded to the general damage which the law implies in every breach
of contract and every infringement of an absolute right: see Ashby
_v._ White, 2 Ld. Raym. 938; 1 Sm. L. C. 9th ed. p. 268, _per_ Holt,
C. J. In all such cases the law presumes that _some_ damage will flow
in the ordinary course of things from the mere invasion of the
plaintiff’s rights, and calls it general damage. Special damage in
such a context means the particular damage (beyond the general
damage), which results from the particular circumstances of the case,
and of the plaintiff’s claim to be compensated, for which he ought to
give warning in his pleadings in order that there may be no surprise
at the trial. But where no actual and positive right (apart from the
damage done) has been disturbed, it is the damage done that is the
wrong; and the expression “special damage,” when used of this damage,
denotes the actual and temporal loss which has, in fact, occurred.
Such damage is called variously in old authorities, “express loss,”
“particular damage:” Cane _v._ Golding, Sty. 169; “damage in fact,”
“special or particular cause of loss:” Law _v._ Harwood, Cro. Car.
140; Tasburgh _v._ Day, Cro. Jac. 484.
The term “special damage” has also been used in actions on the case
brought for a public nuisance, such as the obstruction of a river or a
highway, to denote that actual and particular loss which the plaintiff
must allege and prove that he has sustained beyond what is sustained
by the general public, if his action is to be supported, such
particular loss being, as is obvious, the cause of action: see Iveson
_v._ Moore, 1 Ld. Raym. 486; Rose _v._ Groves, 5 M. & G. 613. In this
judgment we shall endeavor to avoid a term which, intelligible enough
in particular contexts, tends, when successively employed in more than
one context and with regard to different subject-matter, to encourage
confusion in thought. The question to be decided does not depend on
words, but is one of substance. In an action like the present, brought
for a malicious falsehood intentionally published in a newspaper about
the plaintiff’s business—a falsehood which is not actionable as a
personal libel and which is not defamatory in itself—is evidence to
show that a general loss of business has been the direct and natural
result admissible in evidence, and, if uncontradicted, sufficient to
maintain the action? In the case of a personal libel, such general
loss of custom may unquestionably be alleged and proved. Every libel
is of itself a wrong in regard of which the law, as we have seen,
implies general damage. By the very fact that he has committed such a
wrong, the defendant is prepared for the proof that some general
damage may have been done. As is said by Gould, J., in Iveson _v._
Moore, 1 Ld. Raym. 486, in actions against a wrong-doer a more general
mode of declaring is allowed. If, indeed, over and above this general
damage, further particular damage is under the circumstances to be
relied on by the plaintiff, such particular damage must of course be
alleged and shown. But a loss of general custom, flowing directly and
in the ordinary course of things from a libel, may be alleged and
proved generally. “It is not special damage”—says Pollock, C. B., in
Harrison _v._ Pearce, 32 L. T. (O. S.) 298,—“it is general damage
resulting from the kind of injury the plaintiff has sustained.” So in
Bluck _v._ Lovering, 1 Times L. R. 497, under a general allegation of
loss of credit in business, general evidence was received of a decline
of business presumably due to the publication of the libel, while loss
of particular customers, not having been pleaded, was held rightly to
have been rejected at the trial: see also Ingram _v._ Lawson, 6 Bing.
N. C. 212. Akin to, though distinguishable in a respect which will be
mentioned from, actions of libel are those actions which are brought
for oral slander, where such slander consists of words actionable in
themselves and the mere use of which constitutes the infringement of
the plaintiff’s right. The very speaking of such words, apart from all
damage, constitutes a wrong and gives rise to a cause of action. The
law in such a case, as in the case of libel, presumes, and in theory
allows, proof of general damage. But slander, even if actionable in
itself, is regarded as differing from libel in a point which renders
proof of general damage in slander cases difficult to be made good. A
person who publishes defamatory matter on paper or in print puts in
circulation that which is more permanent and more easily transmissible
than oral slander. Verbal defamatory statements may, indeed, be
intended to be repeated, or may be uttered under such circumstances
that their repetition follows in the ordinary course of things from
their original utterance. Except in such cases, the law does not allow
the plaintiff to recover damages which flow, not from the original
slander, but from its unauthorized repetition: Ward _v._ Weeks, 7
Bing. 211; Holwood _v._ Hopkins, Cro. Eliz. 787; Dixon _v._ Smith, 5
H. & N. 450. General loss of custom cannot properly be proved in
respect of a slander of this kind when it has been uttered under such
circumstances that its repetition does not flow directly and naturally
from the circumstances under which the slander itself was uttered. The
doctrine that in slanders actionable _per se_ general damage may be
alleged and proved with generality must be taken, therefore, with the
qualification that the words complained of must have been spoken under
circumstances which might in the ordinary course of things have
directly produced the general damage that has in fact occurred. Evans
_v._ Harries, 1 H. & N. 251, was a slander uttered in such a manner.
It consisted of words reflecting on an innkeeper in the conduct of his
business spoken openly in the presence of divers persons, guests and
customers of the inn—a floating and transitory class. The court held
that general evidence of the decline of business was rightly
receivable. “How,” asked Martin, B., “is a public-house keeper, whose
only customers are persons passing by, to show a damage resulting from
the slander, unless he is allowed to give general evidence of a loss
of custom?” Macloughlin _v._ Welsh, 10 Ir. L. Rep. 19, was an instance
of excommunication in open church. General proof was held to be
rightly admitted that the plaintiff was shunned and his mill
abandoned, though no loss of particular customers was shown. Here the
very nature of the slander rendered it necessary that such general
proof should be allowed. The defamatory words were spoken openly and
publicly, and were intended to have the exact effect which was
produced. Unless such general evidence was admissible, the injury done
could not be proved at all. If, in addition to this general loss, the
loss of particular customers was to be relied on, such particular
losses would, in accordance with the ordinary rules of pleading, have
been required to be mentioned in the statement of claim: see Ashley
_v._ Harrison, 1 Esp. 50. From libels and slanders actionable _per
se_, we pass to the case of slanders not actionable _per se_, where
actual damage done is the very gist of the action. Many old
authorities may be cited for the proposition that in such a case the
actual loss must be proved specially and with certainty: Law _v._
Harwood, Cro. Car. 140. Many such instances are collected in the
judgments in Iveson _v._ Moore, 1 Ld. Raym. 486, where, although there
was a difference as to whether the general rule had been fulfilled in
that particular kind of action on the case, no doubt was thrown on the
principle itself. As was there said—in that language of old pleaders
which has seen its day, but which connoted more accuracy of legal
thought than is produced by modern statements of claim—“damages in the
‘_per quod_,’ where the ‘_per quod_’ is the gist of the action, should
be shown certainly and specially.” But such a doctrine as this was
always subject to the qualification of good sense and of justice.
Cases may here, as before, occur where a general loss of custom is the
natural and direct result of the slander, and where it is not possible
to specify particular instances of the loss. Hartley _v._ Herring, 8
T. R. 130, is probably a case of the kind, although it does not appear
from the report under what circumstances, or in the presence of whom,
the slanderous words were uttered. But if the words are uttered to an
individual, and repetition is not intended except to a limited extent,
general loss of custom cannot be ordinarily a direct and natural
result of the limited slander: Dixon _v._ Smith, 5 H. & N. 450;
Hopwood _v._ Thorn, 19 L. J. (C. P.) 95. The broad doctrine is stated
in Buller’s Nisi Prius, p. 7, that where words are not actionable, and
the special damage is the gist of the action, saying generally that
several persons left the plaintiff’s house is not laying the special
damage. Slanders of title, written or oral, and actions such as the
present, brought for damage done by falsehoods, written or oral, about
a man’s goods or business, are similar in many respects to the
last-mentioned class of slanders not actionable in themselves. Damage
is the gist of both actions alike, and it makes no difference in this
respect whether the falsehood is oral or in writing: Malachy _v._
Soper. The necessity of alleging and proving actual temporal loss with
certainty and precision in all cases of the sort has been insisted
upon for centuries: Lowe _v._ Harewood, W. Jones, 196; Cane _v._
Golding, Sty. 176; Tasburgh _v._ Day, Cro. Jac. 484; Evans _v._
Harlow, 5 Q. B. 624. But it is an ancient and established rule of
pleading that the question of generality of pleading must depend on
the general subject-matter: Janson _v._ Stuart, 1 T. R. 754; Lord
Arlington _v._ Merricke, 2 Saund. 412, n. 4; Grey _v._ Friar, 15 Q. B.
907; see Co. Litt. 303 d; Westwood _v._ Cowne, 1 Stark. 172; Iveson
_v._ Moore, 1 Ld. Raym. 486. In all actions accordingly on the case
where the damage actually done is the gist of the action, the
character of the acts themselves which produce the damage, and the
circumstances under which these acts are done, must regulate the
degree of certainty and particularity with which the damage done ought
to be stated and proved. As much certainty and particularity must be
insisted on, both in pleading and proof of damage, as is reasonable,
having regard to the circumstances and to the nature of the acts
themselves by which the damage is done. To insist upon less would be
to relax old and intelligible principles. To insist upon more would be
the vainest pedantry. The rule to be laid down with regard to
malicious falsehoods affecting property or trade is only an instance
of the doctrines of good sense applicable to all that branch of
actions on the case to which the class under discussion belongs. The
nature and circumstances of the publication of the falsehood may
accordingly require the admission of evidence of general loss of
business as the natural and direct result produced, and perhaps
intended to be produced. An instructive illustration, and one by which
the present appeal is really covered, is furnished by the case of
Hargrave _v._ Le Breton, 4 Burr. 2422, decided a century and a half
ago. It was an example of slander of title at an auction. The
allegation in the declaration was that divers persons who would have
purchased at the auction left the place; but no particular persons
were named. The objection that they were not specially mentioned was,
as the report tells us, “easily” answered. The answer given was that
in the nature of the transaction it was impossible to specify names;
that the injury complained of was in effect that the bidding at the
auction had been prevented and stopped, and that everybody had gone
away. It had, therefore, become impossible to tell with certainty who
would have been bidders or purchasers if the auction had not been
rendered abortive. This case shows, what sound judgment itself
dictates, that in an action for falsehood producing damage to a man’s
trade, which in its very nature is intended or reasonably likely to
produce, and which in the ordinary course of things does produce, a
general loss of business, as distinct from the loss of this or that
known customer, evidence of such general decline of business is
admissible. In Hargrave _v._ Le Breton it was a falsehood openly
promulgated at an auction. In the case before us to-day, it is a
falsehood openly disseminated through the press—probably read, and
possibly acted on, by persons of whom the plaintiff never heard. To
refuse with reference to such a subject-matter to admit such general
evidence would be to misunderstand and warp the meaning of old
expressions; to depart from, and not to follow, old rules; and, in
addition to all this, would involve an absolute denial of justice and
of redress for the very mischief which was intended to be committed.
It may be added that, so far as the decision in Riding _v._ Smith can
be justified, it must be justified on the ground that the court
(rightly or wrongly) believed the circumstances under which the
falsehood was uttered to have brought it within the scope of a similar
principle. In our opinion, therefore, there has been no misdirection
and no improper admission of evidence, and this appeal should be
dismissed with costs.
_Appeal dismissed._[558]
DUDLEY _v._ BRIGGS
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 8, 1886.
_Reported in 141 Massachusetts Reports, 582._
Tort. Writ dated Sept. 18, 1885. The declaration was as follows:
“And the plaintiff says that he is, and has been for many years, a
compiler and publisher of directories of cities, towns, and counties in
this Commonwealth and elsewhere; that by care, attention, skill, and
faithfulness, and after great labor and expense, he had acquired a large
number of subscribers among business men and other people, throughout
the cities and towns of Bristol County, and elsewhere in this
Commonwealth, for ‘The Bristol County Directory,’ which the plaintiff
has compiled and published biennially for many years, and until the acts
and doings of the defendant hereinafter complained of; that, at great
labor and expense, he had acquired a large and valuable list of
advertisers in his said directory, from whom, as well as from the said
subscribers to said directory, he obtained a large income, and would
have continued to do so, but for the acts and doings of the defendant
hereinafter alleged and set forth.
“And the plaintiff says that, according to his usual and ordinary custom
in the compilation and publication of the said ‘The Bristol County
Directory,’ he would have compiled and published the same in this year,
A. D. 1885, and he made his preparations therefor, but he says that the
defendant and his canvassers, and other servants and agents, in order to
injure the plaintiff, and to deprive him of the opportunity of compiling
and publishing said directory for said year of 1885, and
thereafterwards, and receiving the gains and profits therefrom, and to
secure the same to the defendant, together with all the gains and
profits arising therefrom, and otherwise to injure the plaintiff and get
gain, profit, and advantage to the defendant, knowingly and wilfully,
falsely and fraudulently, pretended and represented to many persons, and
particularly to the plaintiff’s patrons, the advertisers in said
directory and the subscribers thereto throughout said Bristol County,
that the plaintiff had gone out of the business of compiling and
publishing said directory, that the plaintiff had sold out said business
to the defendant, that the said canvassers and the defendant’s other
servants and agents were compiling the materials for the plaintiff’s
directory, the same as formerly, and other false and fraudulent
representations then and there made, of which the plaintiff is not yet
fully informed, and thereby deceitfully and wrongfully induced the
plaintiff’s said patrons, advertisers, and subscribers, in and
throughout said Bristol County, to give to the defendant their
advertisements and subscriptions, and to pay him instead of the
plaintiff therefor.
“Whereas, in truth and in fact, the said representations were wholly
false and untrue; the plaintiff had neither gone out of the business of
compiling and publishing the said directory, as he had done for years
before, nor had he sold out to the defendant, nor had he any intention
of doing so; nor were the defendant and his canvassers, and other agents
and servants, compiling the said directory the same as formerly or for
the plaintiff; all of which the defendant, as well as his said
canvassers and other servants and agents, well knew. And the defendant
did knowingly, wrongfully, injuriously, and deceitfully compile and
publish the said ‘The Bristol County Directory,’ for the year A. D.
1885, and vend and sell the same to the plaintiff’s patrons,
advertisers, subscribers, and other persons, as aforesaid. And the
plaintiff says that thereby he has been prevented from compiling,
publishing, and selling his said directory this year, A. D. 1885, as he
has always done heretofore; that he has lost the great gains and profits
which he would otherwise have made and received from the sale thereof,
and from advertisers in and subscribers to said directory, and has been
put to great loss and expense in preparing for said compilation and
publication, till he learned of the defendant’s said act and doings, and
thereby he will be hereafter prevented from compiling and publishing
said directory except at an increased expense and with diminished
profits.”
The defendant demurred to the declaration, on the ground that it did not
set forth a legal cause of action.
The Superior Court sustained the demurrer; and ordered judgment for the
defendant. The plaintiff appealed to this court.
FIELD, J. The plaintiff in his declaration does not allege that, by the
acts of the defendant, he has been deprived of the benefit of any
contract he had made, or of any property in existence and in his
possession, or that the defendant published his directory for 1885 as a
directory prepared and published by the plaintiff; and does not bring
his case within such decisions as Lumley _v._ Gye, Marsh _v._ Billings,
7 Cush. 322; Thomson _v._ Winchester, 19 Pick. 214; Blofeld _v._ Payne,
4 B. & A. 410; Morison _v._ Salmon, 2 M. & G. 385; and Sykes _v._ Sykes,
3 B. & C. 541.
He does not allege that he had any copyright in the previous
publications which the publication of the defendant infringed; and the
courts of the Commonwealth have no jurisdiction over infringements of
copyright. If each publication of a directory by the plaintiff every two
years was a separate publication, then the plaintiff’s declaration
amounts to this,—that he intended to publish a directory for 1885,
whereby he expected to make profits, but, by reason of the acts of the
defendant, he abandoned such an intention, and lost the profits he
otherwise would have made. But an intention in the mind of the plaintiff
to compile and publish a directory is not property, and the abandonment
of such an intention is not a loss of property. Bradley _v._ Fuller, 118
Mass. 239.
An attempt has been made to bring this case within what is called
slander of goods, manufactured and sold by another. See Western Counties
Manure Co. _v._ Lawes Chemical Manure Co., L. R. 9 Ex. 218. This implies
that the plaintiff was engaged in the business of making and selling
directories, and that the defendant made statements disparaging the
plaintiff’s business. We think that the declaration does not show that
the business of the plaintiff, in publishing a new directory every two
years, was a continuous business. The directory to be published in 1885
was to be a new compilation and publication. From the nature of the
book, perhaps this could not well be otherwise. New subscribers and new
advertisements were to be obtained. We have been shown no case where it
has been held that a false statement that the plaintiff had gone out of
business, or sold out his business to the defendant, was an actionable
slander of a person in his trade; but upon this we express no opinion.
It may be said that such statements tend to injure a man in his
business, because they tend to prevent customers from resorting to him
for trade, and to injure the value of the good-will of his business.
However this may be, the difficulty is in attaching good-will as a
valuable thing to the publication every two years of a new directory.
Such a directory could be published by anybody. It is perhaps a question
of degree whether the publication by the plaintiff had been so frequent
and regular that there can be said to be a good-will that would be
protected in law. There is no allegation of any continuing contract,
express or implied, of subscribing for, or advertising in, the
directories, as a publication periodically issued; there is no
allegation of any place of business to which customers resorted to
purchase directories. Until the plaintiff had entered upon the
compilation of the directory for 1885, we do not think that there was
any business of publishing a directory for 1885 carried on by the
plaintiff, or anything that, for example, could have been sold as a
going concern by an assignee in insolvency, if the plaintiff had become
an insolvent debtor. The cases upon liability for wrongful interference
with the business of another are largely collected in Walker _v._
Cronin; but in that case there was an actual business, with the carrying
on of which the defendant wrongfully interfered. The declaration in this
case, indeed, alleges that the plaintiff made his preparations for
compiling and publishing a directory for 1885, but it does not allege
what those preparations were, or that they were anything valuable. The
averment that he “has been put to great loss and expense in preparing
for said compilation and publication,” near the end of the declaration,
appears to be a part of the damages.
The plaintiff cites Swan _v._ Tappan, 5 Cush. 104, but there the
declaration was held insufficient, because there was no allegation of
special damage. The declaration in the present case cannot well be
distinguished in this respect from the declaration in Swan _v._ Tappan,
but we do not deem it necessary to reconsider the decision in that case
on this point. There, the plaintiff was actually engaged in selling his
book, which had already been printed and put upon the market, and the
action was the ordinary action for the malicious disparagement of the
goods of another, manufactured and kept for sale.
The plaintiff relies upon Benton _v._ Pratt, 2 Wend. 385, which perhaps
may be considered as an extreme case. See Randall _v._ Hazelton, 12 All.
412. In Benton _v._ Pratt, Seagraves and Wilson, at Allentown, had
orally agreed to purchase of the plaintiff two hundred hogs, at the
market price, if delivered within three or four weeks, and they had not
been previously supplied; and, “about the time for the delivery,” the
plaintiff was proceeding with his drove of hogs to Allentown for the
purpose of delivering to them two hundred hogs. The defendant, by his
falsehood and deceit, intentionally prevented the performance of this
contract, by persuading Seagraves and Wilson that the plaintiff was not
intending to drive his hogs to Allentown, whereby they were induced to
buy the hogs of the defendant, instead of buying the hogs of the
plaintiff, as they otherwise would have done. The court say, that it was
“not material whether the contract of the plaintiff with Seagraves and
Wilson was binding upon them or not;” but the agreement, if there was an
agreement, although not in writing, was an actual offer by Seagraves and
Wilson, not revoked, and which they would have performed, and the
plaintiff was in the actual possession of the property which Seagraves
and Wilson had offered to buy, and was actually proceeding to deliver
this property to them, in accordance with their offer.
The fatal objection to the present case is, that it is entirely
problematical whether the plaintiff would actually have published
a directory if the defendant had not made the fraudulent
misrepresentations alleged. The plaintiff abandoned his intention
to compile and publish a directory in consequence of the
defendant’s acts; but this, upon the principles stated in Bradley
_v._ Fuller, 118 Mass. 239, and the cases therein cited, is not
sufficient to support an action.
_Judgment affirmed._
GARRET _v._ TAYLOR
IN THE KING’S BENCH, EASTER TERM, 1620.
_Reported in Croke, James, 567._
Action on the case. Whereas he was a Freemason, and used to sell stones,
and to make stone buildings, and was possessed of a lease for divers
years to come of a stone-pit in Hedington, in the county of Oxford, and
digged divers stones there, as well to sell as to build withal; that the
defendant, to discredit and to deprive him of the commodity of the said
mine, imposed so many and so great threats upon his workmen, and all
comers disturbed, threatening to mayhem and vex them with suits if they
bought any stones; whereupon they all desisted from buying, and the
others from working, &c.
After judgment by _nihil dicit_ for the plaintiff, and damages found by
inquisition to fifteen pounds, it was moved in arrest of judgment, that
this action lay not; for nothing is alleged but only words, and no act
nor insult: and causeless suits on fear are no cause of action.
_Sed non allocatur_: for the threatening to mayhem, and suits, whereby
they durst not work or buy, is a great damage to the plaintiff, and his
losing the benefit of his quarries a good cause of action: and although
it be not shown how he was possessed for years, by what title, &c., yet
that being but a conveyance to this action, was held to be well enough.
And adjudged for the plaintiff.[559]
TARLETON _v._ M’GAWLEY
AT NISI PRIUS, CORAM LORD KENYON, C. J., DECEMBER 21, 1804.
_Reported in Peake, 205._
This was a special action on the case. The declaration stated that the
plaintiffs had sent a vessel called the “Bannister,” with a crew on
board, under the command of one Thomas Smith, and loaded with goods
proper for trading with the natives, to a part of the coast of Africa
called Cameroon, to trade with the natives there. That while the
last-mentioned ship was lying off Cameroon, a canoe with some natives on
board came to the same for the purpose of establishing a trade, and went
back to the shore, of which defendant had notice. And that he well
knowing the premises, but _contriving and maliciously intending to
hinder and deter the natives from trading_ with the said Thomas Smith,
for the benefit of the plaintiffs, with force and arms, fired from a
certain ship called the “Othello” of which he was master and commander,
a certain cannon loaded with gunpowder and shot, at the said canoe, and
killed one of the natives on board the same. _Whereby the natives of the
said coast were deterred and hindered from trading with the said T.
Smith for the benefit, &c., and plaintiffs lost their trade._
LORD KENYON. This action is brought by the plaintiffs to recover a
satisfaction for a civil injury which they have sustained. The injury
complained of is, that by the improper conduct of the defendant the
natives were prevented from trading with the plaintiffs. The whole of
the case is stated on the record, and if the parties desire it, the
opinion of the court may hereafter be taken whether it will support an
action. I am of opinion it will. Had this been an accidental thing, no
action could have been maintained; but it is proved that the defendant
had expressed an intention not to permit any to trade, until a debt due
from the natives to himself was satisfied. If there was any court in
that country to which he could have applied for justice he might have
done so, but he had no right to take the law into his own hands.[560]
HART _v._ ALDRIDGE
IN THE KING’S BENCH, MAY 3, 1774.
_Reported in Cowper, 54._
This came before the court on a case reserved upon the following
question: Whether under the circumstances of this case the plaintiff was
entitled to recover? It was an action of trespass on the case for
enticing away several of the plaintiff’s servants, who used to work for
him in the capacity of journeymen shoemakers. The jury found that Martin
and Clayton were employed as journeymen shoemakers by the plaintiff, but
for no determinate time, but only by the piece, and had, at the time of
the trespass laid, each of them a pair of shoes unfinished; that the
defendant persuaded them to enter into his service, and to leave these
shoes unfinished, which they accordingly did.
_Mr. Darwell_, for the plaintiff, stated it to be a question of common
law, and that the only point for the opinion of the court was, “whether
a journeyman was such a servant as the law takes notice of?” In support
of which proposition he insisted that a journeyman is as much a servant
as any other person who works for hire or wages; that neither in reason
nor at common law is there any distinction between a servant in one
capacity or another, and that the injury of seduction is in all cases
the same, though the recompense in damages may be different. He pressed
the argument _ab inconvenienti_, stating that it would be of great
detriment to the town, where the whole trade was in a great measure
carried on by this sort of servant. That the verdict had found the
defendant to be apprised of the retainer of the servants, it being in
proof that he had desired them to leave their work then in hand
unfinished.
_Mr. Willes_, contra. The single question is, whether the enticing away
a journeyman shoemaker, who is hired to make a single pair of shoes, is
such an injury to his master as that an action will lie for it. Now the
jury have found that there was no hiring for any determinate time, but
only by the piece: if so, they could not be the plaintiff’s servants;
for the term “journeyman” does not import that they belong to any
particular master.
LORD MANSFIELD interrupted him. The question is, whether saying that
such a one is a man’s journeyman, is as much as to say that he is such a
man’s servant; that is, whether the jury, by finding him to be the
plaintiff’s journeyman, do not _ex vi termini_ find him to be his
servant. A journeyman is a servant by the day; and it makes no
difference whether the work is done by the day or by the piece. He was
certainly retained to finish the work he had undertaken, and the
defendant knowingly enticed him to leave it unfinished.
What is the gist of the action? That the defendant has enticed a man
away who stood in the relation of servant to the plaintiff, and by whom
he was to be benefited. I think the point turns upon the jury finding
that the persons enticed away were employed by the plaintiff as his
journeymen. It might perhaps have been different if the men had taken
work for everybody, and after the plaintiff had employed them the
defendant had applied to them, and they had given the preference to him
in point of time. For if a man lived in his own house and took in work
for different people, it would be a strong ground to say that he was not
the journeyman of any particular master; but the gist of the present
action is that they were attached to this particular master.
ASTON, J. It is clear that a master may maintain an action against any
one for taking and enticing away his servant, upon the ground of the
interest which he has in his service and labor.[561] And even supposing,
as my lord has stated, that the servant did live in his own house, if he
were employed to finish a certain number of shoes for a particular
person by a fixed time, and a third person enticed him away, I think an
action would lie. If not, it might be of very bad consequence in trade.
He is a servant _quoad hoc_, and though the seducer and enticer is much
the worse, yet the law inflicts a penalty upon workmen leaving their
work undone.
Mr. Justice WILLES and Mr. Justice ASHHURST concurred.
_Per Curiam._ Let the _postea_ be delivered to the plaintiff.[562]
EAGER _v._ GRIMWOOD
IN THE EXCHEQUER, JUNE 1, 1847.
_Reported in 1 Exchequer Reports, 61._
Trespass for assaulting and debauching the daughter and servant of the
plaintiff, whereby she then became pregnant, &c., and the plaintiff lost
and was deprived of her services. Plea: Not guilty.
At the trial before Pollock, C. B., at the London sittings after last
Michaelmas term, the following facts appeared: The connection between
the defendant and the plaintiff’s daughter took place for the first time
two days after Christmas day, 1844. In June, 1845, the plaintiff’s
daughter gave birth to a child, which, according to the evidence of a
surgeon, was a full-grown child. It also appeared that the plaintiff had
been put to some expense in consequence of his daughter’s illness. The
learned Chief Baron left it to the jury to say whether or no the
defendant was the father of the child; and he told them that if they
believed he was not the father of the child, they should find a verdict
for him. The jury having found for the defendant.
_Prentice_ obtained a rule _nisi_ for a new trial, on the ground of
misdirection, against which
_Humfrey_ showed cause.
_Prentice_, in support of the rule.[563]
POLLOCK, C. B. The case of Grinnell _v._ Wells, 7 Man. & G. 1033, is
precisely in point. That case decided that an action for seduction
cannot be maintained without proof of loss of service. Tindal, C. J., in
delivering the judgment of the court, says: “The foundation of the
action by a father to recover damages against the wrong-doer, for the
seduction of his daughter, has been uniformly placed from the earliest
time hitherto, not upon the seduction itself, which is the wrongful act
of the defendant, but upon the loss of service of the daughter, in which
service he is supposed to have a legal right or interest.” The rule must
be absolute to enter a nonsuit, unless the plaintiff will consent to a
_stet processus_.
ALDERSON, B., ROLFE, B., and PLATT B., concurred.
_Rule accordingly._[564]
EVANS _v._ WALTON
IN THE COMMON PLEAS, JUNE 11, 1867.
_Reported in Law Reports, 2 Common Pleas, 615._
The first count of the declaration stated that Louisa Evans was and
still is the servant of the plaintiff in his business of a publican and
victualler; and that the defendant, well knowing the same, wrongfully
enticed and procured the said Louisa Evans unlawfully and without the
consent and against the will of the plaintiff, her said master, to
depart from the service of the plaintiff; whereby the plaintiff had lost
the service of the said Louisa Evans in his said business.
Pleas: Not guilty; and that Louisa Evans was not the servant of the
plaintiff, as alleged. Issue thereon.
The cause was tried before Pigott, B., at the last Spring Assizes at
Oxford. The plaintiff was a licensed victualler in Birmingham, and was
assisted in his business by his daughter Louisa, a girl about nineteen
years of age, who served in the bar and kept the accounts. On the 10th
of November, 1866, the daughter, with her mother’s permission, which was
procured by means of a fabricated letter purporting to be an invitation
to her to spend a few days with a friend at Manchester, left the
plaintiff’s house and went to a lodging-house in the neighborhood of
Birmingham, where she cohabited with the defendant, at whose dictation
the above-mentioned letter had been written. On the 19th of November the
daughter returned home, and resumed her duties for a short time, but
ultimately left her home again, and on the 9th of February was again
found cohabiting with the defendant at the same lodging-house.
On the part of the defendant it was submitted that, in order to sustain
the action, in the absence of an allegation that the defendant had
debauched the plaintiff’s daughter, it was necessary to show a binding
contract of service.
The learned Baron, after consulting Blackburn, J., intimated an opinion
that the action would lie upon the declaration as framed; but he
reserved to the defendant leave to move to enter a nonsuit if the court
should be of opinion that in point of law the action was not
maintainable,—the court to have power to draw any inferences of fact,
and to amend the declaration if necessary, according to the facts
proved.
The case was then left to the jury, who returned a verdict for the
plaintiff, damages, £50.
_Huddleston_, Q. C., in Easter term, obtained a rule _nisi_.
_Powell_, Q. C., and _J. O. Griffits_ (June 11) showed cause, submitting
that the action would lie upon the declaration as it stood.
The court called on
_H. James_ and _Jelf_, in support of the rule. There are two kinds of
action for loss of service, viz., an action for the seduction and
consequent loss of service of a daughter, and an action for enticing
away a servant. In order to sustain the first, it is not enough that
there has been criminal intercourse, but it must be shown that that
intercourse has resulted in pregnancy or other illness so as to cause a
disability in the daughter to perform her accustomed duties: Eager _v._
Grimwood; Boyle _v._ Brandon, 13 M. & W. 738; but an actual contract of
service need not be proved. It is not suggested that there is any such
cause of action here. In Sedgwick on Damages (2d ed.), page 543, it is
said that “although the defendant be guilty of the seduction, but the
jury are of opinion that the child is not his, the plaintiff cannot
recover. In other words, without some damage to the plaintiff or master
occasioned by the illness of the female, and resulting from the illicit
intercourse, the plaintiff is without relief.” And for this Eager _v._
Grimwood is cited.
[BOVILL, C. J. Eager _v._ Grimwood is cited in Smith’s Leading Cases
(6th ed.), vol. i. p. 260, with evident disapprobation.]
No precedent is to be found without the allegation _per quod servitium
amisit_. The action for seduction is an anomalous one.
[WILLES, J. Upon the first point, I think we are bound by the case of
Eager _v._ Grimwood. The question is, whether the action may not be
maintained for enticing the girl away from her father’s service.]
To sustain an action for enticing away a servant, it is necessary to
show a valid and binding contract of service, which has been broken
through the procurement of the defendant. Actual service is not enough.
Here, there was no contract, express or implied, for the breach of which
the father could have sued his daughter. All that the defendant can be
charged with having done is, inciting the daughter to do that which in
the exercise of her own free will she had an undoubted right to do. If
an action would lie for this, it would equally lie for inducing a
daughter to quit her father’s house for the purpose of marrying
her.[565] See Fitz. N. B. 90 H. In Cox _v._ Muncey, 6 C. B. N. S. 375,
it was held by this court that no action will lie for enticing away an
apprentice, unless there be a valid contract of apprenticeship; and the
like was held as to a servant by the Court of Queen’s Bench in Sykes
_v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463.
[BOVILL, C. J. At the end of Lord Denman’s judgment, in Sykes _v._
Dixon, there is a remark which seems to be adverse to your view. “Then,”
says his Lordship, “it was argued, on the authority of Keane _v._
Boycott, 2 H. Bl. 511, that the objection” (that is, to the validity of
the contract) “was not one which a third person could take: and that
might be so in a case where the servant was _de facto_ continuing in the
service; but not here, where he had quitted his master, and taken his
chance in hiring himself to the defendant.” Here the daughter was _de
facto_ continuing in the service of her father when the defendant
seduced her therefrom.]
All the authorities were referred to in Lumley _v._ Gye, and amongst
them Blake _v._ Lanyon; but in none of them was the action held to lie
in the absence of a binding contract of service.[566]
BOVILL, C. J. The rule in this case was granted principally on the
contention of the defendant’s counsel that, in order to sustain the
action, it was necessary to show that there was a binding contract of
service between the father and the daughter. And for this proposition
various text-books were referred to, and several cases cited, amongst
which was that of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463. But,
when that case is looked at, I find no such principle involved in the
decision. Indeed, in each of the cases, from the form of the
declaration, it became necessary to prove some contract for service
beyond that which the law would imply from the relation of the parties.
No authority is to be found where it has been held that in an action for
enticing away the plaintiff’s daughter a binding contract of service
must be alleged and proved. But there are abundant authorities to show
the contrary. It is said that the case of seduction is anomalous in this
respect. There is, however, no foundation for that assertion. In the
case of an action for the seduction of a daughter, no proof of service
is necessary beyond the services implied from the daughter’s living in
her father’s house as a member of his family. So, in the case of an
action for assaulting the plaintiff’s infant son or daughter, no
evidence of service is necessary beyond that which the law will imply as
between parent and child. In Barber _v._ Dennis, 6 Mod. 69; 1 Salk. 68,
the widow of a waterman, who, as was said, by the usage of Waterman’s
Hall, may take an apprentice, had her apprentice taken from her and put
on board a Queen’s ship, where he earned two tickets, which came to the
defendant’s hands, and for which the mistress brought trover. It was
agreed that the action would well lie if the apprentice were a legal
apprentice, for his possession would be that of his master, and whatever
he earns shall go to his master; but it was objected that the company of
watermen is a voluntary society, and that being free of it does not make
a man free of London, so that the custom of London for persons under one
and twenty to bind themselves apprentices does not extend to watermen;
which was agreed by all. Then it was said that the supposed apprentice
here was no legal apprentice, if the indentures be not enrolled pursuant
to the 5 Eliz. c. 4, and, if he were not a legal apprentice, the
plaintiff had no title. But Holt, C. J., said he would understand him an
apprentice or servant _de facto_, and that would suffice against them,
being wrong-doers. Again, in Fitz. N. B. 91 G. it is laid down that, “if
a man ought to have toll in a fair, &c., and his servants are disturbed
in gathering the same, he shall have trespass for assault of his
servants, and for the loss of their service,” &c. To this is appended a
note by Lord Hale: “Trespass for beating his servants, _per quod
servitium amisit_, lies, although he was not retained, but served only
at will. 11 Hen. IV. fol. 2, _per_ Hull, accordant. And so if A. retains
B. to be his servant, who departs into another county and serves C., A.,
before any request or seizure, cannot beat B.; and, if he does, C. shall
have trespass against him (21 Hen. VI. fol. 9), and recover damages,
having regard to the loss of service (22 Ass. 76): and the retainer is
traversable. 11 Hen. VI. fol. 30.” These authorities, and the principle
upon which the action for assaulting a servant is founded, would seem to
show that an actual binding contract is not necessary. There is no
allegation in this declaration of a hiring for any definite time. All
that is alleged is, that the girl was the daughter and servant of the
plaintiff. It cannot be doubted that the jury would infer from the facts
that the relation of master and servant did exist, without any evidence
of a contract for a definite time; and, if we are to draw inferences
from the facts, I should come to the same conclusion. Then, was that
relation put an end to? The service, no doubt, was one which would be
determinable at the will of either party, as is said by Bramwell, B., in
Thompson _v._ Ross, 5 H. & N. 16. That this kind of service is
sufficient, I should gather from the language used by this court in
Hartley _v._ Cummings, 5 C. B. 247, and particularly from the judgment
of Maule, J. That was an action for seducing workmen from the service of
the plaintiff, a glass and alkali manufacturer, and harboring them after
notice. It appeared that one Pike was in the service of the plaintiff,
and the defendant induced him to leave. In giving judgment, Maule, J.,
says: “The objection urged on the part of the defendant is, that the
agreement entered into by Pike with the plaintiff was one that gave the
latter no right to compel Pike to serve him, inasmuch as it was void
either for want of mutuality or because it was a contract to an
unreasonable extent operating in restraint of trade. On the other side,
it was insisted, upon the authority of Keane _v._ Boycott, 2 H. Bl. 511,
that it is quite immaterial, for the purpose of this action, whether the
agreement was void or not; for that it is not competent to the
defendants, who are wrong-doers, to take advantage of its invalidity. In
answer to this, the case of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D.
463, was cited on the part of the defendants, where it is said to have
been decided by the Court of Queen’s Bench that such an objection may be
set up by a third person not a party to the agreement. It is unnecessary
to say whether that case may not be distinguished from the
present,—there being no subsisting service that was interrupted by the
act of the defendant,—because I am of opinion that in this case there
was a contract between Hartley and Pike, which was perfectly valid,
notwithstanding the objections that have been urged.” Whether or not
there was a subsisting service seems to be the test. I think the jury
properly assumed that there was a subsisting service here. It is said
that the girl’s services were not lost to the plaintiff by reason of the
defendant’s having enticed her away; for that, inasmuch as she
afterwards returned to her father’s house, the relation of master and
servant was not put an end to by any act of the defendant’s. I think
however, there was a sufficient interruption of the service to entitle
the plaintiff to maintain the action, and that the rule to enter a
nonsuit should be discharged.
WILLES, J. I am of the same opinion. I cannot look at it as an anomaly
to hold that the daughter was the servant of her father at the time the
defendant by his enticement induced her to forbear from rendering to her
father the services which were due to him from her. There is a series of
cases in the books, of which that in the Year-Book of 11 Hen. IV, fol.
2, is probably the first, to show that this action is maintainable. This
case was followed by a very remarkable one of M. 22 Hen. VI, fol. 30, in
which that doctrine is fully recognized, and where service at will and
service upon a retainer are put upon the same footing with regard to any
complaint of being wrongfully deprived of their fruits, and it is
pointed out that the writ at common law ran, “_quare un tiel servientem
meum in servitio meo existentem cepit et abduxit_,” without alleging any
contract or retainer. That runs so completely with the earlier case, and
also with the doctrine of Lord Denman in Sykes _v._ Dixon, 9 Ad. & E.
693, 699; 1 P. & D. 463, and of Maule, J., in Hartley _v._ Cummings, 5
C. B. 247, and also with the observations of Bramwell, B., in Thompson
_v._ Ross, that I feel no difficulty in holding that, upon authority, as
well as in good sense, the father of a family, in respect of such
service as his daughter renders him from her sense of duty and filial
gratitude, stands in the same position as an ordinary master. If she is
in his service, whether _de son bon gre_ or _sur retainer_, he is
equally entitled to her services, and to maintain an action against one
who entices her away. Assuming that the service was at the will of both
parties, like a tenancy at will, the relation must be put an end to in
some way before the rights of the master under it can be lost. As a
question of fact, was the daughter in the service of her father at the
time the cause of action arose? Was the relation of master and servant
put an end to by her quitting her father’s house by means of the false
pretence to which the defendant induced her to resort? There was no
proof that she quitted without any intention to return to her home. What
pretence, then, was there for assuming that the service at will was put
an end to? To use the language of Newton, J., in the case of 22 Hen. VI,
fol. 30, it is no more than if a servant should absent herself for the
purpose of going to church on the Sabbath day. Then, was the defendant
guilty of any wrong in keeping her away from the plaintiff’s service? I
apprehend that, where the relation of master and servant exists, any
fraud whereby the servant is induced to absent herself affords a ground
of action. Somewhat the same sort of question arose in Winsmore _v._
Greenbank, where, in an action on the case for inducing the plaintiff’s
wife to continue absent, it was held to be sufficient to state that “the
defendant unlawfully and unjustly persuaded, procured, and enticed the
wife to continue absent, &c., by means of which persuasion, &c., she did
continue absent, &c., whereby the plaintiff lost the comfort and society
of his wife,” &c., without setting forth the means used by the
defendant, or alleging that any adultery had been committed. There is
really no difficulty when once the relation of master and servant at the
time of the acts complained of is established. It was said that,
inasmuch as none of the usual consequences, such as sickness or the
birth of a child, resulted from the defendant’s acts, no action is
maintainable for the mere improper intercourse. Be it so, as there is an
authority in favor of that position; but that only removes the charge of
debauching the plaintiff’s daughter out of the way. It does seem to me
to be an extraordinary thing, and to reduce the argument to an
absurdity, to say that the plaintiff would have had a sufficient cause
of action against the defendant if the daughter had proved with child by
him, and had gone back to her father’s house and been confined there,
and that the fact of the father having through his fraud been deprived
of his daughter’s services during the nine days’ concubinage affords no
ground of action. The conclusion I arrive at is, that it was a question
for the jury whether at the time the daughter left her father’s house
there was an existing service _de facto_, and whether by the defendant’s
means and procurement that service was denied to the plaintiff. If both
those questions were found against the defendant, the plaintiff was
clearly entitled to the verdict. I think there was abundant evidence to
support the finding, and that the rule must be discharged.
_Rule discharged._[567]
LUMLEY _v._ GYE
IN THE QUEEN’S BENCH, TRINITY TERM, 1853.
_Reported in 2 Ellis & Blackburn, 216._
CROMPTON, J.[568] The declaration in this case consisted of three
counts. The two first stated a contract between the plaintiff, the
proprietor of the Queen’s Theatre, and Miss Wagner, for the performance
by her for a period of three months at the plaintiff’s theatre; and it
then stated that the defendant, knowing the premises and with a
malicious intention, whilst the agreement was in full force, and before
the expiration of the period for which Miss Wagner was engaged,
wrongfully and maliciously enticed and procured Miss Wagner to refuse to
sing or perform at the theatre, and to depart from and abandon her
contract with the plaintiff and all service thereunder, whereby Miss
Wagner wrongfully, during the full period of the engagement, refused and
made default in performing at the theatre; and special damage arising
from the breach of Miss Wagner’s engagement was then stated. The third
count stated that Miss Wagner had been hired and engaged by the
plaintiff, then being the owner of her Majesty’s Theatre, to perform at
the said theatre for a certain specified period as the dramatic artiste
of the plaintiff for reward to her in that behalf, and had become and
was such dramatic artiste for the plaintiff at his said theatre for
profit to the plaintiff in that behalf; and that the defendant, well
knowing the premises and with a malicious intention, whilst Miss Wagner
was such artiste of the plaintiff, wrongfully and maliciously enticed
and procured her, so being such artiste of the plaintiff, to depart from
and out of the said employment of the plaintiff, whereby she wrongfully
departed from and out of the said service and employment of the
plaintiff, and remained and continued absent from such service and
employment until the expiration of her said hiring and engagement to the
plaintiff by effluxion of time; and special damage arising from the
breach of Miss Wagner’s engagement was then stated. To this declaration
the defendant demurred; and the question for our decision is, Whether
all or any of the counts are good in substance?
The effect of the two first counts is, that a person, under a binding
contract to perform at a theatre, is induced by the malicious act of the
defendant to refuse to perform and entirely to abandon her contract;
whereby damage arises to the plaintiff, the proprietor of the theatre.
The third count differs, in stating expressly that the performer had
agreed to perform as the dramatic artiste of the plaintiff, and _had
become and was_ the dramatic artiste of the plaintiff for reward to her;
and that the defendant maliciously procured her to depart out of the
employment of the plaintiff as such dramatic artiste; whereby she did
depart out of the employment and service of the plaintiff; whereby
damage was suffered by the plaintiff. It was said, in support of the
demurrer, that it did not appear in the declaration that the relation of
master and servant ever subsisted between the plaintiff and Miss Wagner;
that Miss Wagner was not averred, especially in the two first counts, to
have entered upon the service of the plaintiff; and that the engagement
of a theatrical performer, even if the performer has entered upon the
duties, is not of such a nature as to make the performer a servant,
within the rule of law which gives an action to the master for the
wrongful enticing away of his servant. And it was laid down broadly, as
a general proposition of law, that no action will lie for procuring a
person to break a contract, although such procuring is with a malicious
intention and causes great and immediate injury. And the law as to
enticing servants was said to be contrary to the general rule and
principle of law, and to be anomalous, and probably to have had its
origin from the state of society when serfdom existed, and to be founded
upon, or upon the equity of, the Statute of Laborers. It was said that
it would be dangerous to hold that an action was maintainable for
persuading a third party to break a contract, unless some boundary or
limits could be pointed out; and that the remedy for enticing away
servants was confined to cases where the relation of master and servant,
in a strict sense, subsisted between the parties; and that, in all other
cases of contract, the only remedy was against the party breaking the
contract.
Whatever may have been the origin or foundation of the law as to
enticing of servants, and whether it be, as contended by the plaintiff,
an instance and branch of a wider rule, or whether it be, as contended
by the defendant, an anomaly and an exception from the general rule of
law on such subjects, it must now be considered clear law that a person
who wrongfully and maliciously, or, which is the same thing, with
notice, interrupts the relation subsisting between master and servant by
procuring the servant to depart from the master’s service, or by
harboring and keeping him as servant after he has quitted it and during
the time stipulated for as the period of service, whereby the master is
injured, commits a wrongful act for which he is responsible at law. I
think that the rule applies wherever the wrongful interruption operates
to prevent the service during the time for which the parties have
contracted that the service shall continue; and I think that the
relation of master and servant subsists, sufficiently for the purpose of
such action, during the time for which there is in existence a binding
contract of hiring and service between the parties; and I think that it
is a fanciful and technical and unjust distinction to say that the not
having actually entered into the service, or that the service not
actually continuing, can make any difference. The wrong and injury are
surely the same, whether the wrong-doer entices away the gardener, who
has hired himself for a year, the night before he is to go to his work,
or after he has planted the first cabbage on the first morning of his
service; and I should be sorry to support a distinction so unjust, and
so repugnant to common sense, unless bound to do so by some rule or
authority of law plainly showing that such distinction exists....[569]
The objection as to the actual employment not having commenced would not
apply in the present case to the third count, which states that Miss
Wagner had become the artiste of the plaintiff, and that the defendant
had induced her to depart from the employment. But it was further said
that the engagement, employment or service, in the present case, was not
of such a nature as to constitute the relation of master and servant, so
as to warrant the application of the usual rule of law giving a remedy
in case of enticing away servants. The nature of the injury and of the
damage being the same, and the supposed right of action being in strict
analogy to the ordinary case of master and servant, I see no reason for
confining the case to services or engagements under contracts for
services of any particular description; and I think that the remedy, in
the absence of any legal reason to the contrary, may well apply to all
cases where there is an unlawful and malicious enticing away of any
person employed to give his personal labor or service for a given time
under the direction of a master or employer who is injured by the
wrongful act; more especially when the party is bound to give such
personal services exclusively to the master or employer; though I by no
means say that the service need be exclusive....[570]
In deciding this case on the narrower ground, I wish by no means to be
considered as deciding that the larger ground taken by Mr. _Cowling_ is
not tenable, or as saying that in no case except that of master and
servant is an action maintainable for _maliciously_ inducing another to
break a contract to the injury of the person with whom such contract has
been made. It does not appear to me to be a sound answer, to say that
the act in such cases is the act of the party who breaks the contract;
for that reason would apply in the acknowledged case of master and
servant. Nor is it an answer, to say that there is a remedy against the
contractor, and that the party relies on the contract; for, besides that
reason also applying to the case of master and servant, the action on
the contract and the action against the malicious wrong-doer may be for
a different matter; and the damages occasioned by such malicious injury
might be calculated on a very different principle from the amount of the
debt which might be the only sum recoverable on the contract. Suppose a
trader, _with a malicious intent to ruin a rival trader_, goes to a
banker or other party who owes money to his rival, and begs him not to
pay the money which he owes him, and by that means ruins or greatly
prejudices the party: I am by no means prepared to say that an action
could not be maintained, and that damages, beyond the amount of the debt
if the injury were great, or much less than such amount if the injury
were less serious, might not be recovered. Where two or more parties
were concerned in inflicting such injury, an indictment, or a writ of
conspiracy at common law, might perhaps have been maintainable; and,
where a writ of conspiracy would lie for an injury inflicted by two, an
action on the case in the nature of conspiracy will generally lie; and
in such action on the case the plaintiff is entitled to recover against
one defendant without proof of any conspiracy, the malicious injury and
not the conspiracy being the gist of the action.[571] In this class of
cases it must be assumed that it is the malicious act of the defendant,
and that malicious act only, which causes the servant or contractor not
to perform the work or contract which he would otherwise have done. The
servant or contractor may be utterly unable to pay anything like the
amount of the damage sustained entirely from the wrongful act of the
defendant; and it would seem unjust, and contrary to the general
principles of law, if such wrong-doer were not responsible for the
damage caused by his wrongful and malicious act. Several of the cases
cited by Mr. _Cowling_ on this part of the case seem well worthy of
attention.
Without however deciding any such more general question, I think that we
are justified in applying the principle of the action for enticing away
servants to a case where the defendant _maliciously procures_ a party,
who is under a valid contract to give her exclusive personal services to
the plaintiff for a specified period, to refuse to give such services
_during the period for which she had so contracted_, whereby the
plaintiff was injured.
I think, therefore, that our judgment should be for the plaintiff.
ERLE, J. The question raised upon this demurrer is, Whether an action
will lie by the proprietor of a theatre against a person who maliciously
procures an entire abandonment of a contract to perform exclusively at
that theatre for a certain time; whereby damage was sustained? And it
seems to me that it will. The authorities are numerous and uniform, that
an action will lie by a master against a person who procures that a
servant should unlawfully leave his service. The principle involved in
these cases comprises the present; for there, the right of action in the
master arises from the wrongful act of the defendant in procuring that
the person hired should break his contract, by putting an end to the
relation of employer and employed; and the present case is the same. If
it is objected that this class of actions for procuring a breach of
contract of hiring rests upon no principle, and ought not to be extended
beyond the cases heretofore decided, and that, as those have related to
contracts respecting trade, manufactures, or household service, and not
to performance at a theatre, therefore they are no authority for an
action in respect of a contract for such performance; the answer appears
to me to be, that the class of cases referred to rests upon the
principle that the procurement of the violation of the right is a cause
of action, and that, when this principle is applied to a violation of a
right arising upon a contract of hiring, the nature of the service
contracted for is immaterial. It is clear that the procurement of the
violation of a right is a cause of action in all instances where the
violation is an actionable wrong, as in violations of a right to
property, whether real or personal, or to personal security; he who
procures the wrong is a joint wrong-doer, and may be sued, either alone
or jointly with the agent, in the appropriate action for the wrong
complained of. Where a right to the performance of a contract has been
violated by a breach thereof, the remedy is upon the contract against
the contracting party; and, if he is made to indemnify for such breach,
no further recourse is allowed; and, as in case of the procurement of a
breach of contract the action is for a wrong and cannot be joined with
the action on the contract, and as the act itself is not likely to be of
frequent occurrence nor easy of proof, therefore the actions for this
wrong, in respect of other contracts than those of hiring, are not
numerous; but still they seem to me sufficient to show that the
principle has been recognized. In Winsmore _v._ Greenbank it was decided
that the procuring of a breach of the contract of a wife is a cause of
action. The only distinction in principle between this case and other
cases of contracts is, that the wife is not liable to be sued; but the
judgment rests on no such grounds; the procuring a violation of the
plaintiff’s right under the marriage contract is held to be an
actionable wrong. In Green _v._ Button, 2 C. M. & R. 707, it was decided
that the procuring a breach of a contract of sale of goods by a false
claim of lien is an actionable wrong. Sheperd _v._ Wakeman, 1 Sid. 79,
is to the same effect, where the defendant procured a breach of a
contract of marriage by asserting that the woman was already married. In
Ashley _v._ Harrison, 1 Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48,
and in Taylor _v._ Neri, 1 Esp. N. P. C. 386, it was properly decided
that the action did not lie, because the battery, in the first case, and
the libel, in the second case, upon the contracting parties were not
shown to be with intent to cause those persons to break their contracts,
and so the defendants by their wrongful acts did not procure the
breaches of contract which were complained of. If they had so acted for
the purpose of procuring those breaches, it seems to me they would have
been liable to the plaintiffs. To these decisions, founded on the
principle now relied upon, the cases for procuring breaches of contracts
of hiring should be added; at least Lord Mansfield’s judgment in Bird
_v._ Randall, 3 Burr. 1345, is to that effect. This principle is
supported by good reason. He who maliciously procures a damage to
another by violation of his right ought to be made to indemnify; and
that, whether he procures an actionable wrong or a breach of contract.
He who procures the non-delivery of goods according to contract may
inflict an injury, the same as he who procures the abstraction of goods
after delivery; and both ought on the same ground to be made
responsible. The remedy on the contract may be inadequate, as where the
measure of damages is restricted; or in the case of non-payment of a
debt where the damage may be bankruptcy to the creditor who is
disappointed, but the measure of damages against the debtor is interest
only; or, in the case of the non-delivery of the goods, the
disappointment may lead to a heavy forfeiture under a contract to
complete a work within a time, but the measure of damages against the
vendor of the goods for non-delivery may be only the difference between
the contract price and the market value of the goods in question at the
time of the breach. In such cases, he who procures the damage
maliciously might justly be made responsible beyond the liability of the
contractor.
With respect to the objection that the contracting party had not begun
the performance of the contract, I do not think it a tenable ground of
defence. The procurement of the breach of the contract may be equally
injurious, whether the service has begun or not, and in my judgment
ought to be equally actionable, as the relation of employer and employed
is constituted by the contract alone, and no act of service is necessary
thereto.
The result is that there ought to be, in my opinion, judgment for the
plaintiff.
[The concurring opinion of WIGHTMAN, J., is omitted.]
COLERIDGE, J. It may simplify what I have to say, if I first state what
are the conclusions which I seek to establish. They are these: that in
respect of breach of contract the general rule of our law is to confine
its remedies by action to the contracting parties, and to damages
directly and proximately consequential on the act of him who is
sued;[572] that, as between master and servant, there is an admitted
exception; that this exception dates from the Statute of Laborers, 23
Edw. III., and both on principle and according to authority is limited
by it. If I am right in these positions, the conclusion will be for the
defendant, because enough appears on this record to show, as to the
first, that he, and, as to the second, that Johanna Wagner, is not
within the limits so drawn.
First, then, that the remedy for breach of contract is by the general
rule of our law confined to the contracting parties. I need not argue
that, if there be any remedy by action against a stranger, it must be by
action on the case. Now, to found this, there must be both injury in the
strict sense of the word (that is a wrong done), and loss resulting from
that injury: the injury or wrong done must be the act of the defendant;
and the loss must be a direct and natural, not a remote and indirect
consequence of the defendant’s act. Unless there be a loss thus directly
and proximately connected with the act, the mere intention, or even the
endeavor, to produce it will not found the action. The existence of the
intention, that is the malice, will in some cases be an essential
ingredient in order to constitute the wrongfulness or injurious nature
of the act; but it will neither supply the want of the act itself, or
its hurtful consequences: however complete the _injuria_, and whether
with malice or without, if the act be after all _sine damno_, no action
on the case will lie. The distinction between civil and criminal
proceedings in this respect is clear and material; and a recollection of
the different objects of the two will dispose of any argument founded
merely on the allegation of malice in this declaration, if I shall be
found right in thinking that the defendant’s act has not been the direct
or proximate cause of the damage which the plaintiff alleges he has
sustained. If a contract has been made between A. and B. that the latter
should go supercargo for the former on a voyage to China, and C.,
however maliciously, persuades B. to break his contract, but in vain, no
one, I suppose, would contend that any action would lie against C. On
the other hand, suppose a contract of the same kind made between the
same parties to go to Sierra Leone, and C. urgently and _bona fide_
advises B. to abandon his contract, which on consideration B. does,
whereby loss results to A.; I think no one will be found bold enough to
maintain that an action would lie against C. In the first case no loss
has resulted; the malice has been ineffectual; in the second, though a
loss has resulted from the act, that act was not C.’s, but entirely and
exclusively B.’s own. If so, let malice be added, and let C. have
persuaded, not _bona fide_ but _mala fide_ and maliciously, still, all
other circumstances remaining the same, the same reason applies; for it
is _malitia sine damno_, if the hurtful act is entirely and exclusively
B.’s, which last circumstance cannot be affected by the presence or
absence of malice in C. Thus far I do not apprehend much difference of
opinion: there would be such a manifest absurdity in attempting to trace
up the act of a free agent breaking a contract to all the advisers who
may have influenced his mind, more or less honestly, more or less
powerfully, and to make them responsible civilly for the consequences of
what after all is his own act, and for the whole of the hurtful
consequences of which the law makes him directly and fully responsible,
that I believe it will never be contended for seriously. This was the
principle on which Lord Kenyon proceeded in Ashley _v._ Harrison, 1
Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48. There the defendant
libelled Madame Mara; the plaintiff alleged that, in consequence, she,
from apprehension of being hissed and ill-treated, forbore to sing for
him, though engaged, whereby he lost great profits. Lord Kenyon
nonsuited the plaintiff: he thought the defendant’s act too remote from
the damage assigned. But it will be said that this declaration charges
more than is stated in the case last supposed, because it alleges, not
merely a persuasion or enticement, but a procuring. In Winsmore _v._
Greenbank the same word was used in the first count of the declaration,
which alone is material to the present case; and the Chief Justice, who
relied on it, and distinguished it from enticing, defined it to mean
“persuading with effect;” and he held that the husband might sue a
stranger for persuading with effect his wife to do a wrongful act
directly hurtful to himself. Although I should hesitate to be bound by
every word of the judgment, yet I am not called on to question this
definition or the decision of the case. Persuading with effect, or
effectually or successfully persuading, may no doubt sometimes be
actionable—as in trespass—even where it is used towards a free agent;
the maxims, _qui facit per alium facit per se_, and _respondeat
superior_, are unquestionable; but, where they apply, the wrongful act
done is properly charged to be the act of him who has procured it to be
done. He is sued as a principal trespasser, and the damage, if proved,
flows directly and immediately from his act, though it was the hand of
another, and he a free agent, that was employed. But, when you apply the
term of effectual persuasion to the breach of a contract, it has
obviously a different meaning; the persuader has not broken and could
not break the contract, for he had never entered into any; he cannot be
sued upon the contract; and yet it is the breach of the contract only
that is the cause of damage: Neither can it be said that in breaking the
contract the contractor is the agent of him who procures him to do so;
it is still his own act; he is principal in so doing, and is the only
principal. This answer may seem technical; but it really goes to the
root of the matter. It shows that the procurer has not done the hurtful
act; what he has done is too remote from the damage to make him
answerable for it. The case itself of Winsmore _v._ Greenbank seems to
me to have little or no bearing on the present: a wife is not, as
regards her husband, a free agent or separate person; if to be
considered so for the present purpose, she is rather in the character of
a servant, with this important peculiarity, that, if she be induced to
withdraw from his society and cohabit with another or do him any wrong,
no action is maintainable by him against her. In the case of criminal
conversation, trespass lies against the adulterer as for an assault on
her, however she may in fact have been a willing party to all that the
defendant had done. No doubt, therefore, effectual persuasion to the
wife to withdraw and conceal herself from her husband is in the eye of
the law an actual withdrawing and concealing her; and so, in other
counts of the declaration, was it charged in this very case of Winsmore
_v._ Greenbank. A case explainable and explained on the same principle
is that of ravishment of ward. The writ for this lay against one who
procured a man’s ward to depart from him; and, where this was urged in a
case hereafter to be cited (Mich. 11 H. 4, fol. 23 A. pl., 46, 2 E. & B.
255), Judge Hankford[573] gives the answer: the reason is, he says,
because the ward is a chattel, and vests in him who has the right. None
of this reasoning applies to the case of a breach of contract; if it
does, I should be glad to know how any treatise on the law of contract
could be complete without a chapter on this head, or how it happens that
we have no decisions upon it. Certainly no subject could well be more
fruitful or important; important contracts are more commonly broken with
than without persuaders or procurers, and these often responsible
persons when the principals may not be so. I am aware that with respect
to an action on the case the argument _primæ impressionis_ is sometimes
of no weight. If the circumstances under which the action would be
brought have not before arisen, or are of rare occurrence, it will be of
none, or only of inconsiderable weight; but, if the circumstances have
been common, if there has been frequently occasion for the action, I
apprehend it _is_ important to find that the action has yet never been
tried. Now we find a plentiful supply both of text and decision in the
case of seduction of servants; and what inference does this lead to,
contrasted with the silence of the books and the absence of decisions on
the case of breach of ordinary contracts? Let this too be considered:
that, if by the common law it was actionable effectually to persuade
another to break his contract to the damage of the contractor, it would
seem on principle to be equally so to uphold him, after the breach, in
continuing it. Now upon this the two conflicting cases of Adams _v._
Bafeald, 1 Leon. 240, and Blake _v._ Lanyon, 6 T. R. 221, are worth
considering. In the first, two judges against one decided that an action
does not lie for retaining the servant of another, unless the defendant
has first procured the servant to leave his master; in the second, this
was overruled; and, although it was taken as a fact that the defendant
had hired the servant in ignorance and, as soon as he knew that he had
left his former master with work unfinished, requested him to return,
which we must understand to have been a real, earnest request, and only
continued him after his refusal, which we must take to have been his
independent refusal, it was held that the action lay; and this reason is
given: “The very act of giving him employment is affording him the means
of keeping out of his former service.” Would the judges who laid this
down have held it actionable to give a stray servant food or clothing or
lodging out of charity? Yet these would have been equally means of
keeping him out of his former service. The true ground on which this
action was maintainable, if at all, was the Statute of Laborers, to
which no reference was made. But I mention this case now as showing how
far courts of justice may be led if they allow themselves, in the
pursuit of perfectly complete remedies for all wrongful acts, to
transgress the bounds which our law, in a wise consciousness as I
conceive of its limited powers, has imposed on itself, of redressing
only the proximate and direct consequences of wrongful acts. To draw a
line between advice, persuasion, enticement and procurement is
practically impossible in a court of justice; who shall say how much of
a free agent’s resolution flows from the interference of other minds, or
the independent resolution of his own? This is a matter for the casuist
rather than the jurist; still less is it for the juryman. Again, why
draw the line between bad and good faith? If advice given _mala fide_,
and loss sustained, entitle me to damages, why, though the advice be
given honestly, but under wrong information, with a loss sustained, am I
not entitled to them? According to all legal analogies the _bona fides_
of him who, by a conscious wilful act, directly injures me will not
relieve him from the obligation to compensate me in damages for my loss.
Again, where several persons happen to persuade to the same effect, and
in the result the party persuaded acts upon the advice, how is it to be
determined against whom the action may be brought, whether they are to
be sued jointly or severally, in what proportions damages are to be
recovered? Again, if, instead of limiting our recourse to the agent,
actual or constructive, we will go back to the person who immediately
persuades or procures him one step, why are we stop there? The first
mover, and the malicious mover too, may be removed several steps
backward from the party actually induced to break the contract; why are
we not to trace him out? Morally he may be the most guilty. I adopt the
arguments of Lord Abinger and my brother Alderson in the case of
Winterbottom _v._ Wright, 10 M. & W. 109; if we go the first step, we
can show no good reason for not going fifty. And, again, I ask how is it
that, if the law really be as the plaintiff contends, we have no
discussions upon such questions as these in our books, no decisions in
our reports? Surely such cases would not have been of rare occurrence;
they are not of slight importance, and could hardly have been decided
without reference to the Courts in Banc. Not one was cited in the
argument bearing closely enough upon this point to warrant me in any
further detailed examination of them. I conclude therefore what occurs
to me on the first proposition on which the plaintiff’s case rests.
_Judgment for plaintiff._[574]
BOWEN _v._ HALL
IN THE COURT OF APPEAL, FEBRUARY 5, 1881.
_Reported in 6 Queen’s Bench Division, 333._
BRETT, L. J.[575] The Lord Chancellor agrees with me in the judgment I
am about to read, and it is to be taken therefore as the judgment of the
Lord Chancellor as well as of myself.
In this case, we were of opinion at the hearing, that the contract was
one for personal service, though not one which established strictly for
all purposes the relation of master and servant between the plaintiff
and Pearson. We were of opinion that there was evidence to justify a
finding that Pearson had been induced by the defendants to break his
contract of service, that he had broken it, and had thereby, in fact,
caused some injury to the plaintiff. We were of opinion that the act of
the defendants was done with knowledge of the contract between the
plaintiff and Pearson, was done in order to obtain an advantage for one
of the defendants at the expense of the plaintiff, was done from a wrong
motive, and would therefore justify a finding that it was done in that
sense maliciously. There remained nevertheless the question, whether
there was any evidence to be left to the jury against the defendants
Hall and Fletcher, it being objected that Pearson was not a servant of
the plaintiff. The case was accurately within the authority of the case
of Lumley _v._ Gye. If that case was rightly decided, the objection in
this case failed. The only question then which we took time to consider
was whether the decision of the majority of the judges in that case
should be supported in a Court of Error. That case was so elaborately
discussed by the learned judges who took part in it, that little more
can be said about it, than whether, after careful consideration, one
agrees rather with the judgments of the majority, or with the most
careful, learned, and able judgment of Mr. Justice Coleridge. The
decision of the majority will be seen, on a careful consideration of
their judgments, to have been founded upon two chains of reasoning.
First, that wherever a man does an act which in law and in fact is a
wrongful act, and such an act as may, as a natural and probable
consequence of it, produce injury to another, and which in the
particular case does produce such an injury, an action on the case will
lie. This is the proposition to be deduced from the case of Ashby _v._
White, 1 Sm. L. C. (8th ed.), p. 264. If these conditions are satisfied,
the action does not the less lie because the natural and probable
consequence of the act complained of is an act done by a third person:
or because such act so done by the third person is a breach of duty or
contract by him or an act illegal on his part, or an act otherwise
imposing an actionable liability on him. It has been said that the law
implies that the act of the third party, being one which he has free
will and power to do or not to do, is his own wilful act, and therefore
is not the natural or probable result of the defendants’ act. In many
cases that may be so, but if the law is so to imply in every case, it
will be an implication contrary to manifest truth and fact. It has been
said that if the act of the third person is a breach of duty or contract
by him, or is an act which it is illegal for him to do, the law will not
recognize that it is a natural or probable consequence of the
defendant’s act. Again, if that were so held in all cases, the law would
in some refuse to recognize what is manifestly true in fact. If the
judgment of Lord Ellenborough in Vicars _v._ Wilcocks, 8 East, 1,
requires this doctrine for its support, it is in our opinion wrong.
We are of opinion that the propositions deduced above from Ashby _v._
White, 1 Sm. L. C. (8th ed.), p. 264, are correct. If they be applied to
such a case as Lumley _v._ Gye, the question is whether all the
conditions are by such a case fulfilled. The first is that the act of
the defendants which is complained of must be an act wrongful in law and
in fact. Merely to persuade a person to break his contract, may not be
wrongful in law or fact as in the second case put by Coleridge, J.,
_supra_. But if the persuasion be used for the indirect purpose of
injuring the plaintiff, or of benefiting the defendant at the expense of
the plaintiff, it is a malicious act which is in law and in fact a wrong
act, and therefore a wrongful act, and therefore an actionable act if
injury ensues from it. We think that it cannot be doubted that a
malicious act, such as is above described, is a wrongful act in law and
in fact. The act complained of in such a case as Lumley _v._ Gye, and
which is complained of in the present case, is therefore, because
malicious, wrongful. That act is a persuasion by the defendant of a
third person to break a contract existing between such third person and
the plaintiff. It cannot be maintained that it is not a natural and
probable consequence of that act of persuasion that the third person
will break his contract. It is not only the natural and probable
consequence, but by the terms of the proposition which involves the
success of the persuasion, it is the actual consequence. Unless there be
some technical doctrine to oblige one to say so, it seems impossible to
say correctly, in point of fact, that the breach of contract is too
remote a consequence of the act of the defendants. The technical
objections alluded to above have been suggested as the consequences of
the judgment in Vicars _v._ Wilcocks, 8 East, 1. But that judgment when
so used or relied on seems to us to be disapproved in the opinions given
in the House of Lords in Lynch _v._ Knight, 9 H. L. C. 577, and seems to
us when so used to be unreasonable. In the case of Lumley _v._ Gye, and
in the present case, the third condition is fulfilled, namely, that the
act of the defendant caused an injury to the plaintiff, unless again it
can be said correctly that the injury is too remote from the cause. But
that raises again the same question as has been just dismissed. It is
not too remote if the injury is the natural and probable consequence of
the alleged cause. That is stated in all the opinions in Lynch _v._
Knight, 9 H. L. C. 577. The injury is in such a case in law as well as
in fact a natural and probable consequence of the cause, because it is
in fact the consequence of the cause, and there is no technical rule
against the truth being recognized. It follows that in Lumley _v._ Gye,
and in the present case, all the conditions necessary to maintain an
action on the case are fulfilled.
Another chain of reasoning was relied on by the majority in Lumley _v._
Gye, and powerfully combated by Coleridge, J. It was said that the
contract in question was within the principle of the Statute of
Laborers, that is to say, that the same evil was produced by the same
means, and that as the statute made such means when employed in the case
of master and servant, strictly so called, wrongful, the common law
ought to treat similar means employed with regard to parties standing in
a similar relation as also wrongful. If, in order to support Lumley _v._
Gye, it had been necessary to adopt this proposition we should have much
doubted, to say the least. The reasoning of Coleridge, J., upon the
second head of his judgment seems to us to be as nearly as possible, if
not quite, conclusive. But we think it is not necessary to base the
support of the case upon this latter proposition. We think the case is
better supported upon the first and larger doctrine. And we are
therefore of opinion that the judgment of the Queen’s Bench Division was
correct, and that the principal appeal must be dismissed.
_Appeal dismissed._[576]
GLAMORGAN COAL CO., LIMITED _v._ SOUTH WALES MINERS’ FEDERATION
IN THE COURT OF APPEAL, AUGUST 11, 1903.
_Reported in [1903] 2 King’s Bench, 545._
SOUTH WALES MINERS’ FEDERATION _v._ GLAMORGAN COAL CO., LIMITED
IN THE HOUSE OF LORDS, APRIL 14, 1905.
_Reported in [1905] Appeal Cases, 239._
Appeal by the plaintiffs from the decision of BIGHAM, J., [1903] 1 K. B.
118.[577]
The action was brought by the Glamorgan Coal Company, Limited, and
seventy-three other plaintiffs, owners of collieries in South Wales,
against the South Wales Miners’ Federation, its trustees, its officers,
and a number of members of its executive council, claiming damages for
wrongfully and maliciously procuring and inducing workmen employed in
the plaintiffs’ collieries to break their contracts of service with the
plaintiffs. In the alternative the plaintiffs sued the defendants for
wrongfully, unlawfully, and maliciously conspiring together to do the
acts complained of. The plaintiffs claimed both damages and an
injunction.
The defence consisted of denials of the material allegations in the
statement of claim, and of a plea that the acts complained of were done,
if at all, with reasonable justification and excuse. The trial of the
action was commenced with a special jury; but ultimately the jury was
discharged, and all questions of law and fact, as well as the
ascertainment of damages, if any, were by consent left to the
determination of the learned judge.
The following facts (_inter alia_) were stated, in substance, by BIGHAM,
J., in his written opinion:—
The plaintiffs are seventy-four limited liability companies associated
together for the protection of their own interests under the style of
the Monmouthshire and South Wales Coal Owners’ Association. They work
upwards of 200 collieries in the South Wales district, and in these
collieries they employ about 100,000 men.
For the last twenty or twenty-five years the masters and the men in the
South Wales colliery district have worked together under an agreement,
called the sliding scale agreement, by which the rate of wages paid to
the men is made to depend on the price for the time being of a certain
agreed class of coal—that is to say, as the price of that coal rises or
falls so the rate of wages moves up or down. Clause 23 of the sliding
scale agreement is as follows: “It is hereby agreed that all notices to
terminate contracts on the part of the employers as well as employed,
shall be given only on the first day of any calendar month, and to
terminate on the last day of the same month.”
The defendant federation was formed in 1898, and in 1899 was registered
under the Friendly Societies Act. Practically all the miners in the
South Wales district became members of it. There are about 128,000
members; including all, or very nearly all, the men who work for the
plaintiffs. In 1900 the federation was in the possession of funds
amounting to 100,000_l._ By its rules its objects are declared to be to
provide funds to carry on the business of the federation; taking into
consideration the question of trade and wages; to protect workmen
generally, and regulate the relations between them and employers; and to
call conferences to deal with questions affecting the workmen of a
trade, wage, and legislative character.
In November, 1900, the executive council of the federation requested the
workmen to hold meetings for the purpose of electing delegates to attend
a conference on November 12. Delegates were accordingly elected, and at
the conference a resolution was passed authorizing the council of the
federation to declare a general holiday at any time they might think it
necessary for the protection of wages and of the industry generally.
On October 23, 1901, a “manifesto” to the workmen was published, stating
that it had been resolved that the workmen shall observe as general
holidays Friday and Saturday next. Subsequently two other stop-days were
ordered, viz.: for October 31 and November 6. (The reasons for issuing
the manifesto are stated in the opinion of STIRLING, L. J., _post._) The
result was that the men stayed away from work on the four days, and so
broke their contracts with the masters.
The manifesto purported to be issued by the sliding scale committee, and
was signed by the members of that committee, who were also members of
the executive council of the federation. But in fact the issuing of the
manifesto was caused by the executive council of the federation. In
truth it was the federation who were acting; the name of the sliding
scale committee being used as a blind, with the purpose of securing the
funds of the federation from possible liability under the decision in
the Taff Vale Case, [1901] App. Cas. 426.
BIGHAM, J., concluded his findings of fact with the following
statement:—
“The evidence satisfies me that the action of the federation, and of the
other defendants in 1901, was dictated by an honest desire to forward
the interest of the workmen, and was not, in any sense, prompted by a
wish to injure the masters. Neither the federation nor the other
defendants had any prospect of personal gain from the operation of the
stop-days. Having been requested by the men by the resolution of
November 12, 1900, to advise and direct them as to when to stop work,
the federation and the other defendants, who were its officers, in my
opinion, did to the best of their ability advise and direct the men.
Whether they advised them wisely I cannot say, though I am inclined to
think not. But I am satisfied that they advised them honestly, and
without malice of any kind against the plaintiffs.
“I have to decide, in these circumstances, whether an action in tort
will lie against the defendants. The advice and guidance of the
defendants was solicited and given. If followed, it involved, as the
defendants knew, the breaking of the subsisting contracts. It was
followed, as the defendants wished it should be, and damage resulted to
the masters; but there was no malicious intention to cause injury, no
profit was gained for themselves by the defendants, and their sole
object was to benefit the men whom they were advising and directing.”
The learned judge gave judgment for the defendants on both branches of
the plaintiffs’ claim. His opinion is reported in [1903] 1 K. B. 118.
Plaintiffs appealed.
[The opinion of VAUGHAN WILLIAMS, L. J., in favor of affirmance, is
omitted.]
ROMER, L. J. The law applicable to this case is, I think, well settled.
I need only refer to two passages in which that law is shortly and
comprehensively stated. In Quinn _v._ Leathem [1901], A. C. 495, at p.
510, Lord Macnaghten said: “A violation of legal right committed
knowingly is a cause of action, and it is a violation of legal right to
interfere with contractual relations recognized by law if there be no
sufficient justification for the interference.” And in Mogul Steamship
Co. _v._ McGregor, Gow & Co., 23 Q. B. D. 598, at p. 614, Bowen, L. J.,
included in what is forbidden “the intentional procurement of a
violation of individual rights, contractual or other, assuming always
that there is no just cause for it.” But although, in my judgment, there
is no doubt as to the law, yet I fully recognize that considerable
difficulties may arise in applying it to the circumstances of any
particular case. When a person has knowingly procured another to break
his contract, it may be difficult under the circumstances to say whether
or not there was “sufficient justification or just cause” for his act. I
think it would be extremely difficult, even if it were possible, to give
a complete and satisfactory definition of what is “sufficient
justification,” and most attempts to do so would probably be
mischievous. I certainly shall not make the attempt. In particular I do
not think it necessary or useful to discuss the point as to how far the
question of justification can be assimilated to the question of malice
in cases of libel and slander. As Collins, M. R., said in Read _v._
Friendly Society of Operative Stonemasons, [1902] 2 K. B. 732, at p.
739: “It is not at all necessary in this case to embark upon the
question whether ‘without just cause’ is a complete equivalent for what
was meant in the common law by ‘malice.’ I am inclined to think that,
though in many cases adequate as a description, it is not co-extensive
with it, nor do I think that in civil actions any more than in criminal
it will be possible to eliminate motives from the discussion.” I
respectfully agree with what Bowen, L. J., said in the Mogul Case, when
considering the difficulty that might arise whether there was sufficient
justification or not: “The good sense of the tribunal which had to
decide would have to analyze the circumstances and to discover on which
side of the line each case fell.” I will only add that, in analyzing or
considering the circumstances, I think that regard might be had to the
nature of the contract broken; the position of the parties to the
contract; the grounds for the breach; the means employed to procure the
breach; the relation of the person procuring the breach to the person
who breaks the contract; and I think also to the object of the person in
procuring the breach. But, though I deprecate the attempt to define
justification, I think it right to express my opinion on certain points
in connection with breaches of contract procured where the contract is
one of master and servant. In my opinion, a defendant sued for knowingly
procuring such a breach is not justified of necessity merely by his
showing that he had no personal animus against the employer, or that it
was to the advantage or interest of both the defendant and the workman
that the contract should be broken. I take the following simple case to
illustrate my view. If A. wants to get a specially good workman, who is
under contract with B., as A. knows, and A. gets the workman to break
his contract to B.’s injury by giving him higher wages, it would not, in
my opinion, afford A. a defence to an action against him by B. that he
could establish he had no personal animus against B., and that it was
both to the interest of himself and of the workman that the contract
with B. should be broken. I think that the principle involved in this
simple case, taken by me by way of illustration, really governs the
present case. For it is to be remembered that what A. has to justify is
his action, not as between him and the workman, but as regards the
employer B. And, if I proceed to apply the law I have stated to the
circumstances of the present case, what do I find? On the findings of
fact it is to my mind clear that the defendants, the federation,
procured the men to break their contracts with the plaintiffs—so that I
need not consider how the question would have stood if what the
federation had done had been merely to advise the men, or if the men,
after taking advice, had arranged between themselves to break their
contracts, and the federation had merely notified the men’s intentions
to the plaintiffs. The federation did more than advise. They acted, and
by their agents actually procured the men to leave their work and break
their contracts. In short, it was the federation who caused the injury
to the plaintiffs. This was practically admitted before us by the
counsel for the federation, and, indeed, such an admission could not, in
my opinion, be avoided, having regard to the facts stated by the learned
judge in his judgment. And it is not disputed that the federation acted
as they did knowingly. So that the only question which remains is one of
justification. Now the justification urged is that it was thought, and I
will assume for this purpose rightly thought, to be in the interest of
the men that they should leave their work in order to keep up the price
of coal, on which the amount of wages of the men depended. As to this, I
can only say that to my mind the ground alleged affords no justification
for the conduct of the federation towards the employers; for, as I have
already pointed out, the absence on the part of the federation of any
malicious intention to injure the employers in itself affords no
sufficient justification. But it was said that the federation had a duty
towards the men which justified them in doing what they did. For myself
I cannot see that they had any duty which in any way compelled them to
act, or justified them in acting, as they did towards the plaintiffs.
And the fact that the men and the federation, as being interested in or
acting for the benefit of the men, were both interested in keeping up
prices, and so in breaking the contracts, affords in itself no
sufficient justification for the action of the federation as against the
plaintiffs, as I have already pointed out. I think, therefore, that the
appeal must succeed.
STIRLING, L. J.
* * * * *
That interference with contractual relations known to the law may in
some cases be justified is not, in my opinion, open to doubt. For
example, I think that a father who discovered that a child of his had
entered into an engagement to marry a person of immoral character would
not only be justified in interfering to prevent that contract from being
carried into effect, but would greatly fail in his duty to his child if
he did not. This duty is recognized by the courts; for the Court of
Chancery and the Chancery Division of the High Court of Justice have
continually so interfered on behalf of wards of Court, sometimes with a
heavy hand; and the principle on which the judges of those courts have
acted is simply that of doing on behalf of the ward that which a
right-minded father would do in the true interest of his child. I
conceive that circumstances might occur which would give rise to the
same duty in the case of a contract of service. I need not say that the
present is a very different case from that which I have just put. It
would no doubt be desirable if a general rule could be formulated which
would determine in what cases such a justification exists; but no such
rule has been laid down, and I doubt whether this can be done; so far as
I can see it must be left (in the language of Lord Bowen) to the
tribunal to analyze the circumstances of each particular case and
discover whether a justification exists or not.
In the present case the learned judge finds that the federation and the
other defendants “had lawful justification or excuse for what they did
in this, that having been solicited by the men to advise and guide them
on the question of stop-days, it was their duty and right to give them
advice, and to do what might be necessary to secure that the advice
should be followed;” and the existence of this duty has been strongly
pressed upon us in argument by the learned counsel for the several
defendants. It will be observed that the learned judge expressly finds
that the defendants were not merely advisers, but also agents “to do
what might be necessary to secure that the advice should be followed.”
In the view which I take of the facts the defendants not only gave
advice, but acted, and their action took the form of interfering with
the contractual relations between the masters and the men. If in so
doing they committed a tort, it would be no answer to say that they
acted upon the advice of a third person, as, for example, their own
solicitor; and it is difficult to see how they can be in a better
position simply because the advice on which they acted emanated from
themselves.
In my judgment the liability of the defendants must turn on the answer
to be given to the question whether the circumstances of the case were
in fact such as to justify the defendants, or any of them, in acting as
they did.
The circumstances were these: Middlemen at Cardiff were attempting to
reduce the price of coal, and it was feared that some employers might
yield to the pressure of competition and enter into agreements for the
sale of coal at prices lower than those existing at the time, with the
result that the wages of the miners, which were regulated by a sliding
scale, would be reduced.
To counteract this it was considered desirable by the men’s advisers
that prices should be sustained by diminishing the output of coal, and
that this should be effected by the men taking the holidays complained
of. It was not contended or suggested that a limitation of the output of
coal was an illegitimate object or aim on the part of the men, or that,
if it could have been attained without the breach of contracts (as, for
example, by the service of proper notices putting an end to those
contracts), the men would not have been within their legal rights. The
difficulty which presented itself was this,—that one of the terms of the
arrangement under which the sliding scale of wages existed was that
notices of the determination of contracts of employment should only be
given on the first day of a calendar month to terminate on the last day,
and this prevented notices of determination being effective at the
desired moment. The critical period was known to occur in October or
November. The men persuaded themselves that it was the masters’ interest
as well as their own that they should have power to take holidays at
this period; but this was a point on which the masters were entitled to
have their own opinion; and from what occurred in November, 1900, it was
known to the men that the masters’ view did not agree with that of the
men. If the men had faith in the soundness of their opinion, their
course was to negotiate through the defendants for a modification of the
sliding scale arrangement; what they actually thought fit to do was that
while insisting on the benefit of the sliding scale they treated
themselves as emancipated from the observance of one of the terms on
which that scale had been agreed to, although the masters objected, and
although the course taken by the men might result in serious damages to
the masters, or some of them. This is, I think, a difficult position to
maintain. The justification set up seems to me to amount to no more than
this—that the course which they took, although it might be to the
detriment of the masters, was for the pecuniary interest of the men; and
I think it wholly insufficient. The defendants took active steps to
carry this policy into effect, and, as I have said, interfered to bring
about the violation of legal rights. In my judgment they fail to justify
those acts, and the appeal ought to be allowed.
THE COURT declined to grant an immediate injunction, but reserved
liberty to the plaintiffs to apply for an injunction in case it should
be necessary to do so.
_Appeal allowed._
The defendants appealed to the House of Lords.
The EARL OF HALSBURY, L. C., gave an opinion in favor of dismissing the
appeal.
LORD MACNAGHTEN.
* * * * *
But what is the alleged justification in the present case? It was said
that the council—the executive of the federation—had a duty cast upon
them to protect the interests of the members of the union, and that they
could not be made legally responsible for the consequences of their
action if they acted honestly in good faith and without any sinister or
indirect motive. The case was argued with equal candor and ability. But
it seems to me that the argument may be disposed of by two simple
questions. How was the duty created? What in fact was the alleged duty?
The alleged duty was created by the members of the union themselves, who
elected or appointed the officials of the union to guide and direct
their action; and then it was contended that the body to whom the
members of the union have thus committed their individual freedom of
action are not responsible for what they do if they act according to
their honest judgment in furtherance of what they consider to be the
interest of their constituents. It seems to me that if that plea were
admitted there would be an end of all responsibility. It would be idle
to sue the workmen, the individual wrong-doers, even if it were
practicable to do so. Their counsellors and protectors, the real authors
of the mischief, would be safe from legal proceedings. The only other
question is, What is the alleged duty set up by the federation? I do not
think it can be better described than it was by Mr. Lush. It comes to
this—it is the duty on all proper occasions, of which the federation or
their officials are to be the sole judges, to counsel and procure a
breach of duty.
I agree with Romer and Stirling, L.JJ., and I think the appeal must be
dismissed.
LORD JAMES.
* * * * *
In order, therefore, to establish the existence of good cause and
excuse, all the defendants can say is, “We, the federation, had the duty
cast upon us to advise the workmen. We did advise them to commit an
unlawful act, but in giving that advice we honestly believed that they
would be in a better financial position than if they acted lawfully and
fulfilled their contracts.” Even if it be assumed that such allegations
are correct in fact, I think that no justification in law is established
by them. The intention of the defendants was directly to procure the
breach of contracts. The fact that their motives were good in the
interests of those they moved to action does not form any answer to
those who have suffered from the unlawful act. During the arguments that
have been addressed to your Lordships I do not think quite sufficient
distinction was drawn between the intention and the motives of the
defendants. Their intention clearly was that the workmen should break
their contracts. The defendants’ motives, no doubt, were that by so
doing wages should be raised. But if in carrying out the intention the
defendants purposely procured an unlawful act to be committed, the wrong
that is thereby inflicted cannot be obliterated by the existence of a
motive to secure a money benefit to the wrong-doers.
For these reasons I think the judgment of the Court of Appeal should be
affirmed.[578]
LORD LINDLEY. My Lords, I agree so entirely with the judgments of Romer
and Stirling, L.JJ., that I should say no more were it not for the great
importance of some of the arguments addressed to your Lordships on this
appeal and which deserve notice.