judgment. The declaration states that the plaintiff being possessed of
certain land, the defendant unlawfully and with intent to drive and
frighten away game then being on the land of the plaintiff, and to
prevent him from shooting them, fired rockets and combustibles close to
and over the land of the plaintiff, so as to be a nuisance to him. The
defendant by his plea admits that the matter alleged is true, but sets
up a right to do what is complained of for the purpose attributed to the
defendant in the declaration, viz., to prevent him from shooting the
game. Then what is the reason given? It is this:—“The game which I
frightened was game which you enticed away from the Duke of Rutland’s
land, by placing corn and other food for them on your land; and
therefore I, as the servant of the Duke, in order to prevent you from
shooting the game, and from continuing to entice them, did the acts
complained of.” In my opinion that is a bad plea. There is nothing in
point of law to prevent the plaintiff from doing that which the plea
alleges he has done. I say “in point of law,” because it cannot be
contended for a moment that any action would lie against the plaintiff.
As to the propriety of such conduct between gentlemen and neighbors I
say nothing. Where a person’s game is attracted from his land, he ought
to offer them stronger inducements to return to it. It is like the case
I referred to in the course of the argument, Chasemore _v._ Richards, 2
H. & N. 168, 7 H. L. 349, which shows that if a man has the misfortune
to lose his spring by his neighbor digging a well, he must dig his own
well deeper.
_Judgment for the plaintiff._
FISHER _v._ FEIGE
SUPREME COURT, CALIFORNIA, JULY 14, 1902.
_Reported in 137 California Reports, 39._
Appeal by defendants from a judgment in favor of plaintiff.
Plaintiff is a lower riparian proprietor on a certain watercourse, and
defendants are upper riparian proprietors thereon. The action was
brought to recover damages in the sum of five thousand dollars for
certain alleged interferences by defendants with the flow of the water
in the stream, and for a perpetual injunction restraining defendants
from their repetition of the alleged wrongs.[592]
It is averred that along and adjacent to the stream as it flows through
defendants’ land there is a heavy growth of timber, which, before the
alleged wrongful acts of defendants, protected the waters of the stream
from evaporation by drying winds and the rays of the sun, and that the
defendants have cut and felled a large number of trees, and thus let in
the sun and the wind and caused the waters to be diminished by
evaporation, so that not as much flowed down on to plaintiff’s land as
formerly; and that they threatened to fell more of said trees in the
future.
It is also averred, and found by the court, that said acts were done by
defendants “solely for the purpose of injuring the plaintiff and
damaging his said property, and out of spite and ill-will towards the
plaintiff.”
The court found that plaintiff was damaged in the sum of one cent by the
alleged wrongs, for which amount judgment was rendered. By the judgment
the defendants were also “perpetually enjoined” ... “from cutting or
felling the timbers and trees growing in the channel and upon the
immediate banks of said stream at any point above the said lands of the
plaintiff, whereby the said stream will be exposed to the rays of the
sun and the waters thereof lost or materially diminished by
evaporation.”
Defendants appealed from the judgment.
MCFARLAND, J. [After discussing the question of motive.]
... Under the facts found we cannot see how the lawfulness of the acts
enjoined can depend upon the motives by which they were done, or may be
done in the future.
It is found that the defendants did fell trees on their lands, and
threatened to fell more, the effect of which was, and would be, to let
in the sun and winds, and thus increase evaporation.
* * * * *
It is quite apparent that cutting trees upon one’s own land is a lawful
act, which cannot be restrained because it “lets in the sun” and causes
more evaporation; any incidental damage which might come to a lower
riparian owner from such lawful act would clearly be _damnum absque
injuria_.
* * * * *
_Judgement reversed._
TEMPLE, J., and HENSHAW, J., concurred.
ALLEN _v._ FLOOD
IN THE HOUSE OF LORDS, DECEMBER 14, 1897.
_Reported in [1898] Appeal Cases, 1._
The plaintiffs (now the respondents), Flood and Taylor, are members of
the Shipwrights’ Provident Union.[593] The defendant (now the
appellant), Allen, is a member and the London delegate of the
Independent Society of Boilermakers and Iron and Steel Shipbuilders.
The latter society restricts the labor of its members to ironwork. The
society of shipwrights permits its members to work either in wood or
iron. The members of the boilermakers’ society are accustomed to claim
that the proper business of shipwrights is to work in wood only, and
that shipwrights who work in iron are trespassing on the trade of the
boilermakers’ union.[594]
In April, 1894, about forty men of the boilermakers’ society were
engaged at the Regent Dock, Millwall, in repairing an iron ship, on
the employment of the Glengall Iron Company. Flood and Taylor were at
the same time employed by the Glengall Company to execute repairs upon
the woodwork of the vessel. By the terms of their employment they were
entitled to leave at the close of any day; and the Glengall Company
might, at the close of any day cease to employ them further. The
ironworkers were employed on similar terms.[595]
The boilermakers, on discovering that Flood and Taylor had shortly
before been employed by another firm (Mills & Knight) on the Thames in
doing ironwork on a ship, became much excited, and began to talk of
leaving their employment. One of them telegraphed for Allen, their
London delegate. Allen came, dissuaded them from leaving work at
dinner-time, and told them that they must wait and see how things were
settled. Allen then had an interview with Halkett, the Glengall
Company’s manager. As to what took place at this interview, the
testimony at the subsequent trial was conflicting. The version most
favorable to the plaintiffs was substantially as follows:—
Allen told Halkett that he (Allen) had been sent for because Flood and
Taylor were known to have done ironwork in Mills & Knight’s yard, and
that unless Flood and Taylor were discharged all the members of the
boilermakers’ society would be “called out” or “knock off” work that
day; that Halkett had no option; that there was no ill-feeling towards
the Glengall Company or towards Flood and Taylor personally,[596] but
that the iron-men were doing their best to put an end to the practice
of Shipwrights doing ironwork, and that wherever these men were
employed, or other shipwrights who had done ironwork, the boilermakers
would cease work,—in every yard on the Thames.
If the boilermakers had been called out, it would have stopped the
Glengall Company’s business. For fear that the threat would be carried
out, Halkett discharged Flood and Taylor at the close of the day.
An action was then brought by Flood and Taylor against three persons,
viz., Allen, the London delegate; Jackson, the chairman; and Knight,
the general secretary of the Boilermakers’ Society.[597] The
plaintiffs’ allegations were: that the defendants, maliciously and
wrongfully and with intent to injure the plaintiffs, procured and
induced the Glengall Company to break their contract with the
plaintiffs and not to enter into new contracts with them; and also,
maliciously, etc., intimidated and coerced the Glengall Company to
break their contract with plaintiffs and not to enter into new
contracts, and also unlawfully and maliciously conspired with others
to do the above acts.
The case was tried by jury before KENNEDY, J.
The learned judge ruled that there was not “a shred of evidence of any
conspiracy at all;” that there was “no evidence of anything amounting
to intimidation or coercion in any legal sense of the term;”[598] and
that there was no breach of contract.
The following questions, among others, were put to the jury:—
1. Did the defendant Allen maliciously induce the Glengall Iron
Company to discharge the plaintiffs or either of them from their
employment?
2. Did the defendant Allen maliciously induce the Glengall Iron
Company not to engage the plaintiffs or either of them?
In putting these questions to the jury, KENNEDY, J., gave some
explanations, portions of which are, in substance, as follows:[599]
“The word ‘malice’ is a word of art in law, and it does not mean in
this case a personal dislike, a personal feeling of resentment against
the two plaintiffs. It is clear from the evidence of the men and of
their employers that there was no such personal feeling in this case.
The question that I want you to answer is, that, if you find he
induced the Glengall Iron Company, by the threat which is suggested by
the plaintiffs of calling out all the men on strike, did he do that
with the malicious intention which I have endeavored to explain, that
is, merely, not for the purpose of forwarding that which he believed
to be his interest as a delegate of his union in the fair
consideration of that interest but for the purpose of injuring these
plaintiffs, and preventing them doing that which they were each of
them entitled to do. ‘Maliciously’ means, connected with the word
‘induce,’ this,—that it was not for the mere purpose of forwarding
fairly Allen’s own interests, but from the indirect motive of doing a
mischief to the plaintiffs in their lawful business.”
The jury answered both questions in the affirmative; and also found
that each plaintiff had suffered 20_l._ damages.
After consideration, KENNEDY, J., entered judgment for the plaintiffs
against Allen for 40_l._ This decision was affirmed by the Court of
Appeal (LORD ESHER, M. R., LOPES and RIGBY, L.JJ.); L. R. (1895) 2 Q.
B. 21.
Against these decisions, Allen brought the present appeal to the House
of Lords. The appeal was first argued in December, 1895. Their
Lordships having required further argument, the appeal was reargued in
March and April, 1897. The following Judges were summoned to
attend[600] at the second argument: HAWKINS, MATHEW, CAVE, NORTH,
WILLS, GRANTHAM, LAWRENCE, and WRIGHT, JJ.
At the close of the arguments, the following question was propounded
to the Judges: Assuming the evidence given by the plaintiffs’
witnesses to be correct, was there any evidence of a cause of action
fit to be left to the jury?
MATHEW, J., and WRIGHT, J., answered the question in the negative; and
the other six Judges in the affirmative.
After the delivery of the opinions of the Judges, the House took time
for consideration.
Dec. 14, 1897. LORD HALSBURY, L. C.... The first objection made to the
plaintiff’s right to recover for the loss which they thus undoubtedly
suffered is that no right of the plaintiffs was infringed, and that
the right contended for on their behalf is not a right recognized by
law, or, at all events, only such a right as every one else is
entitled to deprive them of if they stop short of physical violence or
obstruction. I think the right to employ their labor as they will is a
right both recognized by the law and sufficiently guarded by its
provisions to make any undue interference with that right an
actionable wrong.
Very early authorities in the law have recognized the right; and, in
my view, no authority can be found which questions or qualifies it.
The schoolmaster who complained that his scholars were being assaulted
and brought an action, the quarry owner who complained that his
servants were being menaced and molested, were both held to have a
right of action. And it appears to me that the importance of those
cases, and the principle established by them, have not been
sufficiently considered. It is said that threats of violence or actual
violence were unlawful means: the lawfulness of the means I will
discuss hereafter. But the point on which these cases are important is
the existence of the right. It was not the schoolmaster who was
assaulted; it was not the quarry owner who was assaulted or
threatened; but, nevertheless, the schoolmaster was held entitled to
bring an action in respect of the loss of scholars attending his
school, and the quarry owner in respect of the loss of workmen to his
quarry. They were third persons; no violence or threats were applied
to them, and the cause of action, which they had a right to insist on,
was the indirect effect upon themselves of violence and threats
applied to others.
My Lords, in my view these are binding authorities to show that the
preliminary question, namely, whether there was any right of the
plaintiffs to pursue their calling unmolested, must be answered in the
affirmative. The question of what is the right invaded would seem to
be reasonably answered, and the universality of the right to all Her
Majesty’s subjects seems to me to be no argument against its
existence. It is, indeed, part of that freedom from restraint, that
liberty of action, which, in my view, may be found running through the
principles of our law.
* * * * *
First it is said that the company were acting within their legal
rights in discharging the plaintiffs. So they were; but does that
affect the question of the responsibility of the person who caused
them so to act by the means he used? The scholars who went away from
the school were entitled to do so. The miners were entitled to cease
working at the quarry. The natives were entitled to avoid running the
risk of being shot; but the question is, What was the cause of their
thus exercising their legal right?
The question must be whether what was done in fact, and what did in
fact procure the dismissal of the plaintiff, was an actionable wrong
or not. I have never heard that a man who was dismissed from his
service by reason of some slander could not maintain an action against
the slanderer because the master had a legal right to discharge him.
* * * * *
It will be observed that Kennedy, J., draws a distinction between the
conduct which he assumes to be lawful on Allen’s part to do what he
did do if it were merely for the purpose of forwarding that which he
believed to be his interest as a delegate of his union in fair
consideration of that interest on the one hand, and on the other hand
his conduct if what he did was done for the purpose of injuring these
plaintiffs.
My Lords, it appears to me that that is a direction of which the
defendants cannot complain, since it puts what is to my mind an
alternative more favorable to them. In my view, his belief that what
he was doing was for his interest as a delegate of his union would not
justify the doing of what he did do. It is alleged, and to my mind and
to the mind of the jury proved, that the employers were compelled
under pressure of the threats that he used to discharge the
plaintiffs.
* * * * *
But the objection made by the defendants appears to be that the word
“malicious” adds nothing; that if the thing was lawful it was lawful
absolutely; if it was not lawful it was unlawful,—the addition of the
word “malicious” can make no difference. The fallacy appears to me to
reside in the assumption that everything must be absolutely lawful or
absolutely unlawful. There are many things which may become lawful or
unlawful according to circumstances.
In a decision of this House it has undoubtedly been held that whatever
a man’s motives may be, he may dig into his own land and divert
subterranean water which but for his so treating his own land might
have reached his neighbor’s land. But that is because the neighbor had
no right to the flow of the subterranean water in that direction, and
he had an absolute right to do what he would with his own property.
But what analogy has such a case with the intentional inflicting of
injury upon another person’s property, reputation, or lawful
occupation? To dig into one’s own land under the circumstances stated
requires no cause or excuse. He may act from mere caprice, but his
right on his own land is absolute, so long as he does not interfere
with the rights of others.
But, referring to Bowen, L. J.’s observation, which to my mind is
exactly accurate, “in order to justify the intentional doing of that
which is calculated in the ordinary course of events to damage, and
which does, in fact, damage another in that other person’s property or
trade,” you must have some just cause or excuse.
Now, the word “malicious” appears to me to negative just cause or
excuse; and without attempting an exhaustive exposition of the word
itself, it appears to me that, if I apply the language of Bowen, L.
J., it is enough to show that this was within the meaning of the law
“malicious.”
It appears to me that no better illustration can be given of the
distinction on which I am insisting between an act which can be
legally done and an act which cannot be so done because tainted with
malice, than such a colloquy between the representative of the master
and the representative of the men as might have been held on the
occasion which has given rise to this action. If the representative of
the men had in good faith and without indirect motive pointed out the
inconvenience that might result from having two sets of men working
together on the same ship, whose views upon the particular question
were so diverse that it would be inexpedient to bring them together,
no one could have complained; but if his object was to punish the men
belonging to another union because on some former occasion they had
worked on an iron ship, it seems to me that the difference of motive
may make the whole difference between the lawfulness or unlawfulness
of what he did.
I see it is suggested by one of your Lordships that the action for
malicious prosecution is supposed to be an exception. I am not quite
certain that I understand what is the proposition to which it is an
exception. If it means that there is no other form of procedure known
to the law wherein malice may make the distinction between a lawful
and an unlawful act, I am unable to agree. Maliciously procuring a
person to be made a bankrupt, maliciously and without reasonable or
probable cause presenting a petition to wind up a company, or
maliciously procuring an arrest, are equally cases wherein the state
of mind of the person procuring the arrest may affect the question of
the lawfulness or unlawfulness of the act done.
Again, in slander or libel the right to preserve one’s character or
business from attack appears to me quite as vague and general a right
as it is suggested is the right to pursue one’s occupation unmolested;
and it cannot be denied that in both these cases the lawfulness or
unlawfulness of what is said or written may depend upon the absence or
presence of malice.
Doubtless there are cases in which the mere presence of malice in an
act done will not necessarily give a right of action, since no damage
may result; and in this case, however malicious Allen’s intervention
may have been, if the employers had defied Allen’s threats instead of
yielding to them, the plaintiffs could not have succeeded in an
action, because they would not have been injured: see Quartz Hill Co.
_v._ Eyre, 11 Q. B. D. 674; Gibbs _v._ Pike, 9 M. & W. 351; Jenings
_v._ Florence, (1857) 2 C. B. (N. S.) 467.
* * * * *
LORD WATSON.... There is no expression in the verdict which can be
held, either directly or by implication, to impeach the legality of
the company’s conduct in discharging the respondents. The mere fact of
an employer discharging or refusing to engage a workman does not imply
or even suggest the absence of his legal right to do either as he may
choose. It is true that the company is not a party to this suit; but
it is also obvious that the character of the act induced, whether
legal or illegal, may have a bearing upon the liability in law of the
person who procured it. The whole pith of the verdict, in so far as it
directly concerns the appellant, is contained in the word
“maliciously,”—a word which is susceptible of many different meanings.
The expression “maliciously induce,” as it occurs upon the face of the
verdict, is ambiguous: it is capable of signifying that the appellant
knowingly induced an act which of itself constituted a civil wrong, or
it may simply mean that the appellant procured, with intent to injure
the respondents, an act which, apart from motive, would not have
amounted to a civil wrong; and it is, in my opinion, material to
ascertain in which of these senses it was used by the jury.
Although the rule may be otherwise with regard to crimes, the law of
England does not, according to my apprehension, take into account
motive as constituting an element of civil wrong. Any invasion of the
civil rights of another person is in itself a legal wrong, carrying
with it liability to repair its necessary or natural consequences, in
so far as these are injurious to the person whose right is infringed,
whether the motive which prompted it be good, bad, or indifferent. But
the existence of a bad motive, in the case of an act which is not in
itself illegal, will not convert that act into a civil wrong for which
reparation is due. A wrongful act, done knowingly and with a view to
its injurious consequences, may, in the sense of law, be malicious;
but such malice derives its essential character from the circumstance
that the act done constitutes a violation of the law. There is a class
of cases which have sometimes been referred to as evidencing that a
bad motive may be an element in the composition of civil wrong; but in
these cases the wrong must have its root in an act which the law
generally regards as illegal, but excuses its perpetration in certain
exceptional circumstances from considerations of public policy. These
are well known as cases of privilege, in which the protection which
the law gives to an individual who is within the scope of these
considerations consists in this,—that he may with immunity commit an
act which is a legal wrong and but for his privilege would afford a
good cause of action against him, all that is required in order to
raise the privilege and entitle him to protection being that he shall
act honestly in the discharge of some duty which the law recognizes,
and shall not be prompted by a desire to injure the person who is
affected by his act. Accordingly, in a suit brought by that person, it
is usual for him to allege and necessary for him to prove an intent to
injure in order to destroy the privilege of the defendant. But none of
these cases tend to establish that an act which does not amount to a
legal wrong, and therefore needs no protection, can have privilege
attached to it; and still less that an act in itself lawful is
converted into a legal wrong if it was done from a bad motive.
[After quoting from BOWEN, L. J., in Mogul Steamship Co. _v._
McGregor, and BAYLEY, J., in Bromage _v._ Prosser.]
The root of the principle is that, in any legal question, malice
depends, not upon evil motive which influenced the mind of the actor,
but upon the illegal character of the act which he contemplated and
committed. In my opinion it is alike consistent with reason and common
sense that when the act done is, apart from the feelings which
prompted it, legal, the civil law ought to take no cognizance of its
motive.
It does not appear to me to admit of doubt that the jury, in finding
the action of the company to have been maliciously induced by the
appellant, simply meant to affirm that the appellant was influenced by
a bad motive, namely, an intention to injure the respondents in their
trade or calling of shipwrights.
* * * * *
There are, in my opinion, two grounds only upon which a person who
procures the act of another can be made legally responsible for its
consequences. In the first place, he will incur liability if he
knowingly and for his own ends induces that other person to commit an
actionable wrong. In the second place, when the act induced is within
the right of the immediate actor, and is therefore not wrongful in so
far as he is concerned, it may yet be to the detriment of a third
party; and in that case, according to the law laid down by the
majority in Lumley _v._ Gye, 2 E. & B. 216, the inducer may be held
liable if he can be shown to have procured his object by the use of
illegal means directed against that third party.
* * * * *
Assuming that the Glengall Iron Company, in dispensing with the
further services of the respondents, were guilty of no wrong, I am
willing to take it that any person who procured their act might incur
responsibility to those who were injuriously affected by it, if he
employed unlawful means of inducement directed against them. According
to the decision of the majority in Lumley _v._ Gye, 2 E. & B. 216,
already referred to, a person who by illegal means, that is, means
which in themselves are in the nature of civil wrongs, procures the
lawful act of another, which act is calculated to injure, and does
injure, a third party, commits a wrong for which he may be made
answerable. So long as the word “means” is understood in its natural
and proper sense, that rule appears to me to be intelligible; but I am
altogether unable to appreciate the loose logic which confounds
internal feeling with outward acts, and treats the motive of the actor
as one of the means employed by him.
It has been maintained, and some of the learned judges who lent their
assistance to the House have favored the argument, that the appellant
used coercion as a means of compelling the Glengall Iron Company to
terminate their connection with the respondents; but that conclusion
does not appear to me to be the fair result of the evidence. If
coercion, in the only legal sense of the term, was employed, it was a
wrong done as much to the Glengall Iron Company, who are the parties
said to have been coerced, as to the respondents. Its result might be
prejudicial to the respondents, but its efficacy wholly depended upon
its being directed against and operating upon the company. It must be
kept in view that the question of what amounts to wrongful coercion in
a legal sense involves the same considerations which I have discussed
in relation to the elements of a civil wrong as committed by the
immediate actor. According to my opinion, coercion, whatever be its
nature, must, in order to infer the legal liability of the person who
employs it, be intrinsically and irrespectively of its motive a
wrongful act. According to the doctrine ventilated in Temperton _v._
Russell, [1893] 1 Q. B. 715, and the present case it need not amount
to a wrong, but will become wrongful if it was prompted by a bad
motive.
* * * * *
I have already indicated that, in my opinion, no light is thrown upon
the decision of the present question by Pitt _v._ Donovan, 1 M. & S.
639, and other cases of that class. The defendant had in that case
represented, contrary to the fact, that the plaintiff was insane at
the time when he executed a particular deed. The communication was
made to a person to whom the defendant was under a legal duty to make
the disclosure if it had been true; and the defendant was in law
absolved from the ordinary consequences of his having circulated a
libel which was false and injurious, if he honestly believed it to be
true. The law applicable in cases of that description is, I apprehend,
beyond all doubt; but the rule by which the law in certain exceptional
cases excuses the perpetration of a wrong, by reason of the absence of
evil motive, is insufficient to establish or to support the converse
and very different proposition, that the presence of an evil motive
will convert a legal act into a legal wrong.
* * * * *
[The opinions of LORD ASHBOURNE, and LORD MORRIS, concurring with LORD
HALSBURY, are omitted.]
LORD HERSCHELL.
* * * * *
Great stress was laid at the bar on the circumstance that in an action
for maliciously and without reasonable and probable cause putting in
motion legal process an evil motive is an essential ingredient. I have
always understood and I think that has been the general understanding,
that this was an exceptional case. The person against whom proceedings
have been initiated without reasonable and probable cause is _prima
facie_ wronged. It might well have been held that an action always lay
for thus putting the law in motion. But I apprehend that the person
taking proceedings was saved from liability if he acted in good faith
because it was thought that men might otherwise be too much deterred
from enforcing the law, and that this would be disadvantageous to the
public. Some of the learned judges cite actions of libel and slander
as instances in which the legal liability depends on the presence or
absence of malice. I think this is a mistake. The man who defames
another by false allegations is liable to an action, however good his
motive, and however honestly he believed in the statement he made. It
is true that in a limited class of cases the law, under certain
circumstances, regards the occasion as privileged, and exonerates the
person who has made false defamatory statements from liability if he
has made them in good faith. But if there be not that duty or interest
which in law creates the privilege, then, though the person making the
statements may have acted from the best of motives, and felt it his
duty to make them, he is none the less liable. The gist of the action
is that the statement was false and defamatory. Because in a strictly
limited class of cases the law allows the defence that the statements
were made in good faith, it seems to me, with all deference, illogical
to affirm that malice constitutes one of the elements of the torts
known to the law as libel and slander. But even if it could be
established that in cases falling within certain well-defined
categories, it is settled law that an evil motive renders actionable
acts otherwise innocent, that is surely far from showing that such a
motive always makes actionable acts prejudicial to another which are
otherwise lawful, or that it does so in cases like the present utterly
dissimilar from those within the categories referred to.
* * * * *
If the fact be that malice is the gist of the action for inducing or
procuring an act to be done to the prejudice of another, and not that
the act induced or procured is an unlawful one as being a breach of
contract or otherwise, I can see no possible ground for confining the
action to cases in which the thing induced is the not entering into a
contract. It seems to me that it must equally lie in the case of every
lawful act which one man induces another to do where his purpose is to
injure his neighbor or to benefit himself at his expense. I cannot
hold that such a proposition is tenable in principle, and no authority
is to be found for it. I should be the last to suggest that the fact
that there was no precedent was in all cases conclusive against the
right to maintain an action. It is the function of the Courts to apply
established legal principles to the changing circumstances and
conditions of human life. But the motive of injuring one’s neighbor or
of benefiting one’s self at his expense is as old as human nature. It
must for centuries have moved men in countless instances to persuade
others to do or to refrain from doing particular acts. The fact that
under such circumstances no authority for an action founded on these
elements has been discovered does go far to show that such an action
cannot be maintained.
* * * * *
I now proceed to consider on principle the proposition advanced by the
respondents, the alleged authorities for which I have been discussing.
I do not doubt that every one has a right to pursue his trade or
employment without “molestation” or “obstruction,” if those terms are
used to imply some act in itself wrongful. This is only a branch of a
much wider proposition, namely, that every one has a right to do any
lawful act he pleases without molestation or obstruction. If it be
intended to assert that an act not otherwise wrongful always becomes
so if it interferes with another’s trade or employment, and needs to
be excused or justified, I say that such a proposition in my opinion
has no solid foundation in reason to rest upon. A man’s right not to
work or not to pursue a particular trade or calling, or to determine
when or where or with whom he will work, is in law a right of
precisely the same nature, and entitled to just the same protection as
a man’s right to trade or work. They are but examples of that wider
right of which I have already spoken. That wider right embraces also
the right of free speech. A man has a right to say what he pleases, to
induce, to advise, to exhort, to command, provided he does not slander
or deceive or commit any other of the wrongs known to the law of which
speech may be the medium. Unless he is thus shown to have abused his
right, why is he to be called upon to excuse or justify himself
because his words may interfere with some one else in his calling?
* * * * *
[After stating the case of Mogul Steamship Co. _v._ McGregor.]
It was said that this was held lawful because the law sanctions acts
which are done in furtherance of trade competition. I do not think the
decision rests on so narrow a basis, but rather on this, that the acts
by which the competition was pursued were all lawful acts, that they
were acts not in themselves wrongful, but a mere exercise of the right
to contract with whom, and when, and under what circumstances and upon
what conditions they pleased. I am aware of no ground for saying that
competition is regarded with special favor by the law; at all events,
I see no reason why it should be so regarded. It may often press as
hardly on individuals as the defendant’s acts are alleged to have done
in the present case. But if the alleged exception could be
established, why is not the present case within it? What was the
object of the defendant, and the workmen he represented, but to assist
themselves in their competition with the shipwrights? A man is
entitled to take steps to compete to the best advantage in the
employment of his labor, and to shut out, if he can, what he regards
as unfair competition, just as much as if he was carrying on the
business of a shipowner. The inducement the appellant used to further
his end was the prospect that the members of his union would not work
in company with what they deemed unfair rivals in their calling. What
is the difference between this case and that of a union of shipowners
who induce merchants not to enter into contracts with the plaintiffs,
by the prospect that if at any time they employ the plaintiffs’ ships
they will suffer the penalty of being made to pay higher charges than
their neighbors at the time when the defendants’ ships alone visit the
ports? In my opinion there is no difference in principle between the
two cases.
* * * * *
LORD MACNAGHTEN. My Lords, I am sorry to say that I must begin by
recapitulating the facts of the case. For the findings of the jury,
taken by themselves, do not convey to my mind any definite meaning.
The jury have found that the appellant Allen “maliciously induced” the
Glengall Iron Company to discharge the respondents from their service,
and they have awarded damages in consequence. I do not know what the
jury meant by the word “induced;” I am not sure that I know what they
meant by the word “maliciously.” Sometimes, indeed, I rather doubt
whether I quite understand that unhappy expression myself. I am
therefore compelled to turn for help to the evidence at the trial,
accepting, as I suppose the jury must have accepted, the account given
by the respondents in preference to that offered by the appellant
wherever there may be any shadow of difference between them.
[After a full statement of the evidence.]
Now before I proceed to consider the legal grounds on which Kennedy,
J., and the Court of Appeal decided the case against Allen, I should
like to ask what there was wrong in Allen’s conduct. He had nothing to
do with the origin of the ill-feeling against Flood and Taylor. He did
nothing to increase it. He went to the dock simply because he was sent
for by one of the men of his union. It seems to be considered the duty
of a district delegate to listen to the grievances of the members of
his union within his district, and to settle the difficulty if
possible. The jury found that the settlement of this dispute was a
matter within Allen’s discretion. The only way in which he could
settle it was by going and seeing the manager. There was surely
nothing wrong in that. There was nothing wrong in his telling the
manager that the iron-men would leave their work unless the two
shipwrights against whom they had a grudge were dismissed, if he
really believed that that was what his men intended to do. As far as
their employers were concerned, the iron-men were perfectly free to
leave their work for any reason, or for no reason, or even for a bad
reason; any one of them might have gone singly to the manager, or they
might have gone to him all together (if they went quietly and
peaceably), and told him that they would not stay any longer with
Flood and Taylor at work among them.
If so, it is difficult to see why fault should be found with Allen for
going in their place and on their behalf and saying what they would
have said themselves.
* * * * *
As regards the meaning of the word “induce,” I do not think the jury
got much assistance. I rather gather from the summing-up that the jury
were given to understand that if they thought that Allen merely
represented the state of things as it was—and the feeling of the
iron-men at the Regent’s Dock—they would be at liberty to answer the
questions put to them about Allen in the negative. But the answer must
be the other way if they thought that Allen went further, and assumed
to represent the union, and to speak as if he had the power of the
union at his back; that would be a threat and would amount to
“inducing.” Now, I must say that I do not think it can be said that
Allen did “induce” the company to discharge the plaintiffs. Certainly
it cannot be truly said that he procured them to be discharged. It was
not his act that prevented the company from continuing to employ them.
If the whole story had been a fiction and an invention on his part I
could have understood the finding of the jury. But I do not think
there was any misrepresentation on Allen’s part. I do not think there
was any exaggeration. Nor, indeed, was any such point made at the
trial.
* * * * *
So we see now, I think, what the findings of the jury come to, if they
are to be treated as being in accordance with the evidence. They must
mean that Allen induced the company to discharge the plaintiffs, by
representing to the manager, not otherwise than in accordance with the
truth, the state of feeling in the yard, and the intentions of the
workmen, and that he did so “maliciously,” because he must have known
what the issue of his communication to the manager would be, and
naturally perhaps he was not sorry to see an example made of persons
obnoxious to his union. But is his conduct actionable? It would be
very singular if it were. No action would lie against the company for
discharging the two shipwrights. No action would lie against the
iron-men for striking against them. No action would lie against the
officers of the union for sanctioning such a strike. But if the
respondents are right the person to answer in damages is the man who
happened to be the medium of communication between the iron-men and
the company,—the most innocent of the three parties concerned, for he
neither set the “agitation” on foot, nor did he do anything to
increase it, nor was his the order that put an end to the connection
between employer and employed. It seems to me that the result would
have been just the same if Edmonds had told Mr. Halkett what was going
on in the yard, or if Mr. Halkett had learned it from Flood and Taylor
themselves.
Even if I am wrong in my view of the evidence and the verdict, if the
verdict amounts to a finding that Allen’s conduct was malicious in
every sense of the word, and that he procured the dismissal of Flood
and Taylor, that is, that it was his act and conduct alone which
caused their dismissal, and if such a verdict were warranted by the
evidence, I should still be of opinion that judgment was wrongly
entered for the respondents. I do not think that there is any
foundation in good sense or in authority for the proposition that a
person who suffers loss by reason of another doing or not doing some
act which that other is entitled to do or to abstain from doing at his
own will and pleasure, whatever his real motive may be, has a remedy
against a third person who, by persuasion or some other means not in
itself unlawful, has brought about the act or omission from which the
loss comes, even though it could be proved that such person was
actuated by malice towards the plaintiff, and that his conduct, if it
could be inquired into, was without justification or excuse.
The case may be different where the act itself to which the loss is
traceable involves some breach of contract or some breach of duty, and
amounts to an interference with legal rights. There the immediate
agent is liable, and it may well be that the person in the background
who pulls the strings is liable too, though it is not necessary in the
present case to express any opinion on that point.
But if the immediate agent cannot be made liable, though he knows what
he is about, and what the consequences of his action will be, it is
difficult to see on what principle a person less directly connected
with the affair can be made responsible unless malice has the effect
of converting an act not in itself illegal or improper into an
actionable wrong. But if that is the effect of malice, why is the
immediate agent to escape? Above all, why is he to escape when there
is no one else to blame and no one else answerable? And yet many cases
may be put of harm done out of malice without any remedy being
available at law. Suppose a man takes a transfer of a debt with which
he has no concern for the purpose of ruining the debtor, and then
makes him bankrupt out of spite, and so intentionally causes him to
lose some benefit under a will or settlement,—suppose a man declines
to give a servant a character because he is offended with the servant
for leaving,—suppose a person of position takes away his custom from a
country tradesman in a small village merely to injure him on account
of some fancied grievance not connected with their dealings in the way
of buying and selling,—no one, I think, would suggest that there could
be any remedy at law in any of those cases. But suppose a customer,
not content with taking away his own custom, says something not
slanderous or otherwise actionable or even improper in itself to
induce a friend of his not to employ the tradesman any more. Neither
the one nor the other is liable for taking away his own custom. Is it
possible that the one can be made liable for inducing the other not to
employ the person against whom he has a grudge? If so, a fashionable
dressmaker might now and then, I fancy, be plaintiff in a very
interesting suit. The truth is, that questions of this sort belong to
the province of morals rather than to the province of law. Against
spite and malice the best safeguards are to be found in self-interest
and public opinion. Much more harm than good would be done by
encouraging or permitting inquiries into motives when the immediate
act alleged to have caused the loss for which redress is sought is in
itself innocent or neutral in character, and one which anybody may do
or leave undone without fear of legal consequences. Such an
inquisition would, I think, be intolerable, to say nothing of the
probability of injustice being done by juries in a class of cases in
which there would be ample room for speculation and wide scope for
prejudice.
In order to prevent any possible misconstruction of the language I
have used, I should like to add that in my opinion the decision of
this case can have no bearing on any case which involves the element
of oppressive combination. The vice of that form of terrorism commonly
known by the name of “boycotting,” and other forms of oppressive
combination, seems to me to depend on considerations which are, I
think, in the present case, conspicuously absent.
* * * * *
LORD SHAND.... The case was one of competition in labor, which, in my
opinion, is in all essentials analogous to competition in trade, and
to which the same principles must apply; and I ask myself what would
be the thought of the application of the word “malicious” to the
conduct of a tradesman who induces the customer of another tradesman
to cease making purchases from one with whom he had long dealt, and
instead to deal with him, a rival in trade. The case before the jury
was, in my view, in no way different, except that in the one case
there was competition in labor,—in the other there would be
competition in trade.
Some of the learned consulted judges speak of Allen’s conduct as
having been caused by a desire to inflict “punishment” on the
shipwrights for past acts, and indicate that, if the shipwrights had
been actually working at ironwork on the vessel at the time, the case
would have been different.[601]
I cannot agree in any such view. “Punishment” in a wide and popular
sense may possibly be used, though incorrectly, to describe the
boilermakers’ action; but it is quite clear that what they were
resolved to do, and really did, was, while marking their sense of the
injury which they thought (rightly or wrongly is not the question) the
shipwrights were doing to them in trenching on their proper lines of
business, to take a practical measure in their own defence. Their
object was to benefit themselves in their own business as working
boilermakers, and to prevent a recurrence in the future of what they
considered an improper invasion on their special department of work.
How this could possibly be regarded as “malicious,” even in any
secondary sense that can reasonably be attributed to that term, I
cannot see.
* * * * *
Coming now directly to the merits of the question in controversy in
the case, the argument of the plaintiffs and the reasons for the
opinions of the majority of the consulted judges seem to me to fail,
because, although it is no doubt true that the plaintiffs were
entitled to pursue their trade as workmen “without hindrance,” their
right to do so was qualified by an equal right, and indeed the same
right, on the part of other workmen. The hindrance must not be of an
unlawful character. It must not be by unlawful action. Amongst the
rights of all workmen is the right of competition. In the like manner
and to the same extent as a workman has a right to pursue his work or
labor without hindrance, a trader has a right to trade without
hindrance. That right is subject to the right of others to trade also,
and to subject him to competition,—competition which is in itself
lawful, and which cannot be complained of where no unlawful means (in
the sense I have already explained) have been employed. The matter has
been settled in so far as competition in trade is concerned by the
judgment of this House in the Mogul Steamship Co. Case, [1892] A. C.
25. I can see no reason for saying that a different principle should
apply to competition in labor. In the course of such competition, and
with a view to secure an advantage to himself, I can find no reason
for saying that a workman is not within his legal rights in resolving
that he will decline to work in the same employment with certain other
persons, and in intimating that resolution to his employers.
* * * * *
[The opinions of LORD DAVEY and LORD JAMES OF HEREFORD, in favor of
reversing the order of the Court of Appeal are omitted.]
_Order of the Court of Appeal reversed and judgment entered
for the appellant with costs here and below including the
costs of the trial: cause remitted to the Queen’s Bench
Division._[602]
LEATHEM _v._ CRAIG
QUEEN’S BENCH DIVISION, IRELAND, NOVEMBER 22, 1898.
COURT OF APPEAL, IRELAND, MAY 2, 1899.
_Reported in [1899] 2 Irish Reports, 667, 744_.
QUINN _v._ LEATHEM
IN THE HOUSE OF LORDS, AUGUST 5, 1901.
_Reported in [1901] Appeal Cases, 495._[603]
This was an action tried before FitzGibbon, L. J., at the Belfast Summer
Assizes, 1896, brought against the defendants for damages for
maliciously and wrongfully procuring certain persons to break contracts
into which they had entered with the plaintiff, and not to enter into
other contracts with the plaintiff; and for maliciously and wrongfully
enticing and procuring certain workmen in the employment of such persons
to leave the service of their employers and to break their contracts of
service, with intent to injure the plaintiff, and to prevent such
persons from carrying out their contracts with the plaintiff, and from
entering into other contracts with the plaintiff; and for maliciously
and wrongfully intimidating such persons, and coercing them to break
their contracts with the plaintiff; and intimidating such servants in
their employ, and coercing them to leave the service of their employers,
to the injury of the plaintiff; and for unlawfully conspiring, together
with other persons, to do the acts aforesaid, with intent to injure the
plaintiff.
There was also a paragraph in the statement of claim, claiming damages
for the publication of the plaintiff’s name in a “black list,” issued by
the defendants, and a prayer for an injunction to prevent the
continuance and repetition of the acts complained of.
The following facts were proved. The plaintiff was a butcher at Lisburn,
in the county of Antrim, about eight miles from Belfast, where he had
carried on business for a number of years. He had in his employment one
Robert Dickie, his foreman, who had been with him for ten years. The
plaintiff had been in the habit of sending large quantities of meat to
Andrew Munce, a butcher in Belfast, and had been doing so for some
twenty years. There was no contract in writing between them; but,
whatever amount the plaintiff sent, Munce took and paid for—the amount
being, on an average, of the value of £30 a week.
The defendants John Craig, John Davey, and Joseph Quinn were butchers’
assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw,
butchers’ assistants in Lisburn. In the spring of 1895 these defendants
and several others in the same occupation formed themselves into an
association, which was duly registered under the Trade Union Acts, 1871
and 1876, under the title of “The Belfast Journeymen Butchers’
Assistants’ Association,” of which the defendant Davey became the
Secretary. The plaintiff’s men were not members of the association. At
the commencement of July, 1895, the defendants’ association required the
plaintiff to dismiss Robert Dickie from his employment, which he refused
to do. Upon that the defendants’ society threatened to withdraw the
plaintiff’s men from his service. A deputation was sent down to meet the
plaintiff at Lisburn, and a meeting was held in Magill’s public-house,
Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan,
and Shaw were present—Craig being in the chair. The plaintiff stated
that he had come on behalf of his men, and was ready to pay all fines
and demands against them, and asked to have them admitted into the
society. The defendant Shaw objected, and said that the plaintiff’s men
should be punished, and should be put out to walk the streets for twelve
months. The plaintiff objected to this, as Dickie was a married man with
a family. Shaw moved, and Morgan seconded a resolution that the
plaintiff’s assistants should be called out, and it was carried. The
defendants stated that they could pick out plenty of men to work for the
plaintiff from their list; the plaintiff replied that they were not
suitable for his business, and refused to put his own men out. Craig
then said that the plaintiff’s meat would be stopped at Munce’s, if the
plaintiff would not comply with their wishes. The plaintiff still
refused. The defendants then called out some of the plaintiff’s
employees. Edward Dickie, a servant of the plaintiff, was brought to a
meeting of the defendants’ society, held over Dornan’s shop in Lisburn,
and was ordered to leave the plaintiff, the society undertaking to pay
him the same wages as he had been receiving from the plaintiff. Dickie,
yielding to this order, left the plaintiff without notice. “Black lists”
were issued by the society upon which the names of persons were posted
who had offended against the society’s rules. Leathem’s name was posted,
and also the name of John M’Bride, a flesher in Lisburn, who was dealing
with the plaintiff. Subsequently, however, Dornan and others of the
defendants came to M’Bride; and on his undertaking not to deal any more
with Leathem, his name was struck out.
On the 6th September, 1895, the defendant Davey wrote to the plaintiff
the following letter:—
“I have been instructed to write you if you would be kind enough to
reply on or before Tuesday, 10th, whether you have made up your mind to
continue to employ non-union labour. If you continue as at present, our
society will be obliged to adopt extreme measures in your case. Trusting
that you will see the wisdom of acceding to our views at once, I
remain,” &c.
On the 13th September, Davey wrote to Munce:—
“A deputation has been appointed to wait on you, or your responsible
representative, on Monday evening, the 16th inst., at 6.30 p. m., to
come to a decision in regard to this case of Leathem & Sons, as we are
anxious to have a settlement at once.”
To this Munce replied:—
“In reply to your letter _re_ Leathem & Sons, I cannot see my way to
attend any deputation of the sort, as it is quite out of my province to
interfere with the liberty of any man. But why refer to me in this
matter? I do not think it fair for you to come at me in the matter,
seeing it appears to be the Messrs. Leathem that you wish to interfere
with.”
On the 16th September a deputation of the defendants’ society went to
Munce’s establishment, and had an interview with W. F. Munce, the son of
Andrew Munce, and asked him to put pressure on his father to stop
dealing with the plaintiff. W. F. Munce replied by letter on the 17th
September:—
“A deputation of the Journeymen Butchers’ Association waited at Corn
Market yesterday evening, with reference to the case of the purchase of
meat from Henry Leathem, Lisburn. In accordance with promise, I placed
the views of the deputation before Mr. Munce, and in reply he wishes to
state he could not interfere to bring pressure to bear on Mr. Leathem to
employ none but society men, by refusing to purchase meat from him, as
that would be outside his province, and would be interfering with the
liberty of another man; but at the same time he will strongly recommend
Mr. Leathem to adopt the views of the Journeymen Butchers’ Association,
and employ men belonging to the society.”
On the 18th September Davey wrote to Andrew Munce:—
“Have submitted your letter to committee. They are of opinion that in
the main it is unsatisfactory, but thanking you kindly for your
recommendation to Mr. Leathem, with whom we have endeavoured to make a
satisfactory arrangement, but have failed; so therefore have no other
alternative but to instruct your employees to cease work immediately
Leathem’s beef arrives.”
On the 19th September Munce telegraphed to Leathem:—
“Unless you arrange with society you need not send any beef this week,
as men are ordered to quit work.”
Munce ceased to deal with the plaintiff, and the plaintiff was obliged
to sell off the meat he had on hand at a heavy loss at any price he
could get. In consequence of these transactions the plaintiff’s business
was ruined.
The case was tried before FitzGibbon, L. J., at the Summer Assizes of
1896, at Belfast. The defendants did not offer any evidence, their
counsel asking for a direction on the grounds: 1, that to sustain the
action a contract made with Leathem must be proved to have been made and
broken through the acts of the defendants, and that there was no
evidence of such contract or breach; 2, that there was no evidence of
pecuniary damage to the plaintiff through the acts of the defendants; 3,
that the ends of the defendants and the means taken by them to promote
those ends as appearing in evidence were legitimate, and there was no
evidence of actual damage to the plaintiff.
The learned Lord Justice declined to withdraw the case from the jury,
and left to them the following questions:—
1. Did the defendants, or any of them, wrongfully and maliciously induce
the customers or servants of the plaintiff named in the evidence to
refuse to deal with the plaintiff? _Answer_: Yes.
2. Did the defendants, or any two or more of them maliciously conspire
to induce the plaintiff’s customers or servants named in the evidence,
or any of them, not to deal with the plaintiff or not to continue in his
employment; and were such persons so induced not so to do? _Answer_:
Yes.
3. Did the defendants Davey, Dornan, and Shaw, or any of them, publish
the “black lists” with intent to injure the plaintiff in his business;
and, if so, did the publication so injure him? _Answer_. Yes.
FitzGibbon, L. J., in summing up, told the jury that pecuniary loss,
directly caused by the conduct of the defendants, must be proved in
order to establish a cause of action; and he advised them to require to
be satisfied that such loss to a substantial amount had been proved by
the plaintiff. He declined to tell them that, if actual and substantial
pecuniary loss was proved to have been directly caused to the plaintiff
by the wrongful acts of the defendants, they were bound to limit the
amount of damages to the precise sum so proved. He told them that, if
the plaintiff gave the proof of actual and substantial loss necessary to
maintain the action, they were at liberty in assessing damages to take
all the circumstances of the case, including the conduct of the
defendants, reasonably into account. The Lord Justice did not tell the
jury that the liability of the defendants depended on any question of
law. He told them that the questions left to them were questions of fact
to be determined on the evidence; but that they included questions as to
the intent of the defendants, and, in particular, their intent to injure
the plaintiff in his trade as distinguished from the intent of
legitimately advancing their own interests. The Lord Justice did not
tell the jury that the defendants could be directly asked what their own
intention was, but he did tell them that their intention was to be
inferred from their acts and conduct as proved, and that, in acting upon
the evidence given by the plaintiff, they were at liberty to have regard
to the fact that the defendants, who might have given the best evidence
on the subject, had not been produced to explain, qualify, or contradict
any of the evidence given for the plaintiff as to their own acts. Upon
the meaning of the words “wrongfully and maliciously” in the questions,
the Lord Justice told the jury that they had to consider whether the
intent and actions of the defendants went beyond the limits which would
not be actionable, namely, securing or advancing their own interests, or
those of their trade, by reasonable means, including lawful combination,
or whether their acts, as proved, were intended and calculated to injure
the plaintiff in his trade, through a combination and with a common
purpose, to prevent the free action of his customers and servants in
dealing with him, with the effect of actually injuring him, as
distinguished from acts legitimately done to secure or advance their own
interests. Finally, he told the jury that acts done with the object of
increasing the profits or raising the wages of any combination of
persons such as the society to which the defendants belonged, whether
employers or employed, by reasonable and legitimate means, were
perfectly lawful and were not actionable so long as no wrongful act was
maliciously—that is intentionally—done to injure a third party. To
constitute such a wrongful act for the purposes of this case, the Lord
Justice told the jury that they must be satisfied that there had been a
conspiracy, a common intention, and a combination, on the part of the
defendants to injure the plaintiff in his business; and that acts must
be proved to have been done by the defendants in furtherance of that
intention which had inflicted actual money loss upon the plaintiff in
his trade; and that whether the acts of the defendants were or were not
in that sense actionable, was the question which the jury had to try
upon the evidence.
The jury found for the plaintiff with £250 damages, of which £50 was
separately assessed for damages on the cause of action relating to the
“black list,” and £200 for damages on the other causes of action and
judgment was thereupon entered for the plaintiff for £250 damages and
costs.
The defendants now moved to set aside the verdict and judgment so had,
and that judgment should be entered for them on the ground of
misdirection; or for a new trial, on the ground that the damages were
excessive, and that the jury were allowed to take the “black lists” into
account.
WILLIAM O’BRIEN, J....
The right infringed is the right to live by labor.
* * * * *
Physical hindrances, or prevention of labor by physical means, it was
conceded, would be the invasion of a right, and that would certainly be
the case whether the restraint was applied to the employer or to the
workman.
* * * * *
If temporal loss were not coercion, it could be used to the degree of a
person being starved. The proposition on which the judgment of the
majority (in Allen _v._ Flood) was founded in this respect is opposed to
the whole analogy of the law that makes duress of property, or menace of
temporal loss, as effectual as physical violence to avoid all kinds of
acts.
* * * * *
In The Mogul Steamship Company _v._ M’Gregor, [1892] A. C. 25, the trade
of the defendants was the primary object, and the injury to the
plaintiffs was the result of the means taken to advance that object.
There, as in Allen _v._ Flood, [1898] A. C. 1, the injury to others was
the thing intended, as the means of carrying out another object.
* * * * *
There is an observation which appears to me to gather up several of the
fallacies which are scattered through the arguments in the judgments of
the majority in Allen _v._ Flood, [1898] A. C. 1. The case is put by
Lord Watson as if it were a question whether a person could be made
liable for doing, from a malicious motive, what, without such motive he
could do lawfully. In fact there are cases in law in which the malice
makes the distinction of what is lawful or unlawful, as in malicious
prosecution, or takes away the right that otherwise exists, as in the
instance of privileged communication. But that is not the present case
at all, as it was not that of Allen _v._ Flood, [1898] A. C. 1. The
defendant, who maliciously instigated the thing, is not the person who
possessed the power of dismissal. Therefore the supposed constitutional
objection, that the law could not enter into a man’s mind, has no place.
The same point meets the case of the butler and the cook that was put in
the argument. The butler tells his master he will leave unless the cook
is dismissed. Lord Herschell snatched at the admission of counsel, that
the cook could bring an action, as being the logical conclusion from his
argument. With great respect, it is neither logical nor the law. The
servant is the master of his own actions. He can choose his own company,
though even for that object he cannot use threats. But in this case it
was another person that assumed to choose his company for him. Allen was
not a boiler-maker, as Craig was not a butcher, who wished to leave.
Each was a member of a trade organization, and had no duty or interest
of his own to interfere. What relation could such a position assume but
that of intimidation?
* * * * *
... a confusion of relations, in applying the proposition that a person
cannot be made liable for maliciously exercising a right which he
possesses. The action here is for maliciously causing another person to
exercise a right which that other person possessed. In one case, the
right may be said to absorb the malice, though there are exceptions to
the rule in the common law. But how can it absorb another man’s malice?
* * * * *
What wrong can be conceived more cruel and grievous than wilfully
depriving men of their employment? There must be a right, correlative to
the wrong. What right can be more sacred than the right to live by a
man’s labor? But then, it is said, the wrong and the right are subject
to the legal power of another person. That is the case in many
instances, in which the law nevertheless gives a remedy for wrong that
requires the exercise of another person’s will. That is the case of a
person who is defamed; the damage comes from those who hear. That is the
case of malicious prosecution; the agency is that of the law. The
servant who is enticed away from his master, leaves of his own will. The
woman who left her husband, in Winsmore _v._ Greenbank, Willes, 577, did
so with her own consent; the actress who broke her engagement, in Lumley
_v._ Gye, 2 E. & B. 216, could have performed, if she liked. That is the
case of tenants leaving their holdings on account of threats, which is
put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.
Many other examples could be given where the law allows a remedy, though
the wrongful act requires the concurrence of another person’s will. The
rule is the same as to crimes. The law does not excuse instigation to
crime because the other person need not commit the crime, or for the
reason that it is impossible to separate the effect of the instigation
and natural pravity of will, which was the ground erroneously assigned
by Coleridge, J., for his opinion in Lumley _v._ Gye, 2 E. & B. 216. In
fact the law makes no distinction between moral and physical agency, or
the degrees of the influence, when the cause is attached to the
consequence by the verdict of the jury.
* * * * *
The law of conspiracy, which is traced down, in Comyn’s Digest, and
after him in the notes to Saunders’ Reports, and in several English
judgments as well as in the judgment in Kearney _v._ Lloyd, 26 L. R. Ir.
268, from the obsolete writ of conspiracy, through the action on the
case in the nature of conspiracy, with their several distinctions, and
which was originally confined to false accusations of crime, has widened
out by the expansion of social conditions and the increase of
wickedness, until it embraces in its modern extent every kind of wrong
committed by several against another, and has been applied in a
multitude of instances where the law gives no remedy against an
individual, which was the utmost that was determined by Allen _v._
Flood, [1898] A. C. 1.
* * * * *
... a malicious design to deprive a person of his livelihood, the malice
being compounded both of the object, and the want of any just motive of
personal right. For no one contended at any time that the object of
drawing all persons into the pen of a trade union, was a ground of
privilege like that which excused the act in The Mogul Steamship Co.
_v._ M’Gregor, [1892] A. C. 25, where the defendants merely waged a war
of rivalry in their trade. However, if “civil wrong” be understood in
the sense of actionable wrong, the rule, so confined, is contrary to a
multitude of cases, in which the action was adopted, and in which
nevertheless it is most certain there was no legal remedy against a
single defendant, even before the decision of Allen _v._ Flood, [1898]
A. C. 1. Indeed, that is the express and special use of the action of
conspiracy, without which it would find no real place in practice,
though it is not impossible such an action could be maintained for what
is actionable also in the case of an individual.
* * * * *
There was in this case a direct design to injure the plaintiff. That was
malice alone. The act was not done in exercise of any right the
defendants possessed. It was done through the agency of another person
by improperly influencing his will; and that will was moved solely by
their act, and would not otherwise have been exercised. It was done by
numbers, to which the law attaches a new and altered quality of more
formidable wrong—the foundation of conspiracy—which is a difference in
things themselves that can never be taken out of the law, civil or
criminal, whilst there is a difference between a man and an army.
Lastly, there was the damage which was so unjust as itself to make the
act malicious.
* * * * *
For the case put, of a person maliciously digging on his own land, and
draining the well, of his neighbor, is no exception, and demonstrates
the weakness of the argument which is founded on it. In that case the
act could not be prohibited without interfering with the inherent right
of property; and the right of the neighbor was subject to the right of
the contiguous owner. The two rights were equal. The right absorbed the
malice, and could not otherwise coexist with it. Here the defendants
possessed no right which they could not otherwise exercise; and the
right of the plaintiff to carry on his trade was not subject to any
right in them. No right of interference with others, which the law could
recognize, could attach to the aggressions of a trade union—to their
plans for the revision of the relations between employers and
employed—to proceedings conducting, by inevitable sequence, to what was
lately expressed, with no less energy than the weight attaching to the
author, as “the destructive demands of a class upon the fundamental laws
on which civil order rests.”
SIR P. O’BRIEN, L. C. J., and ANDREWS, J., delivered opinions in favor
of denying defendants’ motion.
PALLES, C. B., dissented, because he felt himself “coerced by the
judgment of the House of Lords in Allen _v._ Flood....”
The defendants’ motion was refused with costs.
The case was then carried to the Irish Court of Appeal. In accordance
with the opinions there delivered by LORD ASHBOURNE, CHANCELLOR, PORTER,
M. R., WALKER, L. J., and HOLMES, L. J., the decision below, as to the
verdict and judgment for £200, was affirmed with costs; the judgment for
the plaintiff being amended by omitting the part as to the recovery of
£50 damages which was separately assessed on account of the “black
list.”
HOLMES, L. J., said: “The ‘black list’ was only an overt act of the
conspiracy, and the sum awarded for it is included in the £200.”
One of the defendants, Quinn, appealed to the House of Lords.
LORD CHANCELLOR HALSBURY, LORDS MACNAGHTEN, SHAND, BRAMPTON, ROBERTSON,
and LINDLEY delivered opinions in favor of dismissing the appeal.
EARL OF HALSBURY, L. C.
* * * * *
[As to the effect of the decision in Allen _v._ Flood.]
Now the hypothesis of fact upon which Allen _v._ Flood was decided by a
majority in this House was that the defendant there neither uttered nor
carried into effect any threat at all: he simply warned the plaintiff’s
employers of what the men themselves, without his persuasion or
influence, had determined to do, and it was certainly proved that no
resolution of the trade union had been arrived at at all, and that the
trade union official had no authority himself to call out the men, which
in that case was argued to be the threat which coerced the employers to
discharge the plaintiff. It was further an element in the decision that
there was no case of conspiracy or even combination. What was alleged to
be done was only the independent and single action of the defendant,
actuated in what he did by the desire to express his own views in favor
of his fellow-members. It is true that I personally did not believe that
was the true view of the facts, but, as I have said, we must look at the
hypothesis of fact upon which the case was decided by the majority of
those who took part in the decision.
* * * * *
LORD MACNAGHTEN.
* * * * *
I do not think that the acts done by the defendants were done “in
contemplation or furtherance of a trade dispute between employers and
workmen.” So far as I can see, there was no trade dispute at all.
Leathem had no difference with his men. They had no quarrel with him.
For his part he was quite willing that all his men should join the
union. He offered to pay their fines and entrance moneys. What he
objected to was a cruel punishment proposed to be inflicted on some of
his men for not having joined the union sooner. There was certainly no
trade dispute in the case of Munce. But the defendants conspired to do
harm to Munce in order to compel him to do harm to Leathem, and so
enable them to wreak their vengeance on Leathem’s servants who were not
members of the union.
* * * * *
LORD LINDLEY.[604] My Lords, the case of Allen _v._ Flood, [1898] A. C.
1, has so important a bearing on the present appeal that it is necessary
to ascertain exactly what this House really decided in that celebrated
case. It was an action by two workmen of an iron company against three
members of a trade union, namely, Allen and two others, for maliciously,
wrongfully, and with intent to injure the plaintiffs, procuring and
inducing the iron company to discharge the plaintiffs.[605] The action
was tried before Kennedy, J., who ruled that there was no evidence to go
to the jury of conspiracy, intimidation, coercion, or breach of
contract. The result of the trial was that the plaintiffs obtained a
verdict and judgment against Allen alone. He appealed, and the only
question which this House had to determine was whether what he had done
entitled the plaintiffs to maintain their action against him. What the
jury found that he had done was, that he had maliciously induced the
employers of the plaintiffs to discharge them, whereby the plaintiffs
suffered damage. Different views were taken by the noble Lords who heard
the appeal as to Allen’s authority to call out the members of the union,
and also as to the means used by Allen to induce the employers of the
plaintiffs to discharge them; but, in the opinion of the noble Lords who
formed the majority of Your Lordships’ House, all that Allen did was to
inform the employers of the plaintiffs that most of their workmen would
leave them if they did not discharge the plaintiffs.[606] There being no
question of conspiracy, intimidation, coercion, or breach of contract,
for consideration by the House, and the majority of their Lordships
having come to the conclusion that Allen had done no more than I have
stated, the majority of the noble Lords held that the action against
Allen would not lie; that he had infringed no right of the plaintiffs;
that he had done nothing which he had no legal right to do, and that the
fact that he had acted maliciously and with intent to injure the
plaintiffs did not, without more, entitle the plaintiffs to maintain the
action.
My Lords, this decision, as I understand it, establishes two
propositions: one a far-reaching and extremely important proposition of
law, and the other a comparatively unimportant proposition of mixed law
and fact, useful as a guide, but of a very different character from the
first.
The first and important proposition is that an act otherwise lawful,
although harmful, does not become actionable by being done maliciously
in the sense of proceeding from a bad motive, and with intent to annoy
or harm another. This is a legal doctrine not new or laid down for the
first time in Allen _v._ Flood, [1898] A. C. 1; it had been gaining
ground for some time, but it was never before so fully and
authoritatively expounded as in that case. In applying this proposition
care, however, must be taken to bear in mind, first, that in Allen _v._
Flood, [1898] A. C. 1, criminal responsibility had not to be considered.
It would revolutionize criminal law to say that the criminal
responsibility for conduct never depends on intention. Secondly, it must
be borne in mind that even in considering a person’s liability to civil
proceedings the proposition in question only applies to “acts otherwise
lawful,” i. e., to acts involving no breach of duty, or, in other words,
no wrong to any one. I shall refer to this matter later on.
The second proposition is that what Allen did infringed no right of the
plaintiffs, even although he acted maliciously and with a view to injure
them. I have already stated what he did, and all that he did, in the
opinion of the majority of the noble Lords. If their view of the facts
was correct, their conclusion that Allen infringed no right of the
plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to
inform a person that others will annoy or injure him unless he acts in a
particular way cannot of itself be actionable, whatever the motive or
intention of the informant may have been.
My Lords, the questions whether Allen had more power over the men than
some of their Lordships thought, and whether Allen did more than they
thought, are mere questions of fact. Neither of these questions is a
question of law, and no court or jury, is bound as a matter of law to
draw from the facts before it inferences of fact similar to those drawn
by noble Lords from the evidence relating to Allen in the case before
them.
I will pass now to the facts of this case, and consider (1) what the
plaintiff’s rights were; (2) what the defendants’ conduct was; (3),
whether that conduct infringed the plaintiff’s rights. For the sake of
clearness it will be convenient to consider these questions in the first
place apart from the statute which legalizes strikes, and in the next
place with reference to that statute.
1. As to the plaintiff’s rights. He had the ordinary rights of a British
subject. He was at liberty to earn his own living in his own way,
provided he did not violate some special law prohibiting him from so
doing, and provided he did not infringe the rights of other people. This
liberty involved liberty to deal with other persons who were willing to
deal with him. This liberty is a right recognized by law; its
correlative is the general duty of every one not to prevent the free
exercise of this liberty, except so far as his own liberty of action may
justify him in so doing. But a person’s liberty or right to deal with
others is nugatory, unless they are at liberty to deal with him if they
choose to do so. Any interference with their liberty to deal with him
affects him. If such interference is justifiable in point of law, he has
no redress. Again, if such interference is wrongful, the only person who
can sue in respect of it is, as a rule, the person immediately affected
by it; another who suffers by it has usually no redress; the damage to
him is too remote, and it would be obviously practically impossible and
highly inconvenient to give legal redress to all who suffered from such
wrongs. But if the interference is wrongful and is intended to damage a
third person, and he is damaged in fact—in other words, if he is
wrongfully and intentionally struck at through others, and is thereby
damnified—the whole aspect of the case is changed: the wrong done to
others reaches him, his rights are infringed although indirectly, and
damage to him is not remote or unforeseen, but is the direct consequence
of what has been done. Our law, as I understand it, is not so defective
as to refuse him a remedy by an action under such circumstances. The
cases collected in the old books on actions on the case, and the
illustrations given by the late Bowen, L. J., in his admirable judgment
in the Mogul Steamship Company’s Case, 23 Q. B. D. 613, 614, may be
referred to in support of the foregoing conclusion, and I do not
understand the decision in Allen _v._ Flood, [1898] A. C. 1, to be
opposed to it.
If the above reasoning is correct, Lumley _v._ Gye, 2 E. & B. 216, was
rightly decided, as I am of opinion it clearly was. Further, the
principle involved in it cannot be confined to inducements to break
contracts of service, nor indeed to inducements to break any contracts.
The principle which underlies the decision reaches all wrongful acts
done intentionally to damage a particular individual and actually
damaging him. Temperton _v._ Russell, [1893] 1 Q. B. 715, ought to have
been decided and may be upheld on this principle. That case was much
criticised in Allen _v._ Flood, [1898] A. C. 1, and not without reason;
for, according to the judgment of Lord Esher, the defendants’ liability
depended on motive or intention alone, whether anything wrong was done
or not. This went too far, as was pointed out in Allen _v._ Flood,
[1898] A. C. 1. But in Temperton _v._ Russell, [1893] 1 Q. B. 715, there
was a wrongful act, namely, conspiracy and unjustifiable interference
with Brentano, who dealt with the plaintiff. This wrongful act warranted
the decision, which I think was right.
2. I pass on to consider what the defendants did. The appellant and two
of the other defendants were the officers of a trade union, and the jury
have found that the defendants wrongfully and maliciously induced the
customers of the plaintiff to refuse to deal with him, and maliciously
conspired to induce them not to deal with him. There were similar
findings as to inducing servants of the plaintiff to leave him. What the
defendants did was to threaten to call out the union workmen of the
plaintiff and of his customers if he would not discharge some non-union
men in his employ. In other words, in order to compel the plaintiff to
discharge some of his men, the defendants threatened to put the
plaintiff and his customers, and persons lawfully working for them, to
all the inconvenience they could without using violence. The defendants’
conduct was the more reprehensible because the plaintiff offered to pay
the fees necessary to enable his non-union men to become members of the
defendants’ union; but this would not satisfy the defendants. The facts
of this case are entirely different from those which this House had to
consider in Allen _v._ Flood, [1898] A. C. 1. In the present case there
was no dispute between the plaintiff and his men. None of them wanted to
leave his employ. Nor was there any dispute between the plaintiff’s
customers and their own men, nor between the plaintiff and his
customers, nor between the men they respectively employed. The
defendants called no witnesses, and there was no evidence to justify or
excuse the conduct of the defendants. That they acted as they did in
furtherance of what they considered the interests of union men may
probably be fairly assumed in their favor, although they did not come
forward and say so themselves; but that is all that can be said for
them. No one can, I think, say that the verdict was not amply warranted
by the evidence. I have purposely said nothing about the black list, as
the learned judge who tried the case considered that the evidence did
not connect the appellant with that list. But the black list was, in my
opinion, a very important feature in the case.
3. The remaining question is whether such conduct infringed the
plaintiff’s rights so as to give him a cause of action. In my opinion,
it plainly did. The defendants were doing a great deal more than
exercising their own rights: they were dictating to the plaintiff and
his customers and servants what they were to do. The defendants were
violating their duty to the plaintiff and his customers and servants,
which was to leave them in the undisturbed enjoyment of their liberty of
action as already explained. What is the legal justification or excuse
for such conduct? None is alleged and none can be found. This violation
of duty by the defendants resulted in damage to the plaintiff—not
remote, but immediate and intended. The intention to injure the
plaintiff negatives all excuses and disposes of any question of
remoteness of damage. Your lordships have to deal with a case, not of
_damnum absque injuria_, but of _damnum cum injuria_.
Every element necessary to give a cause of action on ordinary principles
of law is present in this case. As regards authorities, they were all
exhaustively examined in the Mogul Steamship Co. _v._ MacGregor, [1892]
A. C. 25, and Allen _v._ Flood, [1898] A. C. 1, and it is unnecessary to
dwell upon them again. I have examined all those which are important,
and I venture to say that there is not a single decision anterior to
Allen _v._ Flood, [1898] A. C. 1, in favor of the appellant. His sheet
anchor is Allen _v._ Flood, [1898] A. C. 1, which is far from covering
this case, and which can only be made to cover it by greatly extending
its operation.
It was contended at the bar that if what was done in this case had been
done by one person only, his conduct would not have been actionable, and
that the fact that what was done was affected by many acting in concert
makes no difference. My Lords, one man without others behind him who
would obey his orders could not have done what these defendants did. One
man exercising the same control over others as these defendants had
could have acted as they did, and, if he had done so, I conceive that he
would have committed a wrong towards the plaintiff for which the
plaintiff could have maintained an action. I am aware that in Allen _v._
Flood, [1898] A. C. 1, Lord Herschell, [1898] A. C. at pp. 128, 138,
expressed his opinion to be that it was immaterial whether Allen said he
would call the men out or not. This may have been so in that particular
case, as there was evidence that Allen had no power to call out the men,
and the men had determined to strike before Allen had anything to do
with the matter. But if Lord Herschell meant to say that as a matter of
law there is no difference between giving information that men will
strike, and making them strike, or threatening to make them strike, by
calling them out when they do not want to strike, I am unable to concur
with him. It is all very well to talk about peaceable persuasion. It may
be that in Allen _v._ Flood, [1898] A. C. 1, there was nothing more; but
here there was very much more. What may begin as peaceable persuasion
may easily become, and in trades union disputes generally does become,
peremptory ordering, with threats open or covert of very unpleasant
consequences to those who are not persuaded. Calling workmen out
involves very serious consequences to such of them as do not obey. Black
lists are real instruments of coercion, as every man whose name is on
one soon discovers to his cost. A combination not to work is one thing,
and is lawful. A combination to prevent others from working by annoying
them if they do is a very different thing, and is _prima facie_
unlawful. Again, not to work oneself is lawful so long as one keeps off
the poor-rates, but to order men not to work when they are willing to
work is another thing. A threat to call men out given by a trade union
official to an employer of men belonging to the union and willing to
work with him is a form of coercion, intimidation, molestation, or
annoyance to them and to him very difficult to resist, and, to say the
least, requiring justification. None was offered in this case.
My Lords, it is said that conduct which is not actionable on the part of
one person cannot be actionable if it is that of several acting in
concert. This may be so where many do no more than one is supposed to
do. But numbers may annoy and coerce where one may not. Annoyance and
coercion by many may be so intolerable as to become actionable, and
produce a result which one alone could not produce. I am aware of the
difficulties which surround the law of conspiracy both in its criminal
and civil aspects; and older views have been greatly and, if I may say
so, most beneficially modified by the discussions and decisions in
America and this country. Amongst the American cases, I would refer
especially to Vegelahn _v._ Guntner, 167 Mass. 92, where coercion by
other means than violence, or threats of it, was held unlawful. In this
country it is now settled by the decision of this House in the case of
the Mogul Steamship Co., [1892] A. C. 25; 23 Q. B. D. 598, that no
action for a conspiracy lies against persons who act in concert to
damage another and do damage him, but who at the same time merely
exercise their own rights and who infringe no rights of other people.
Allen _v._ Flood, [1898] A. C. 1, emphasizes the same doctrine. The
principle was strikingly illustrated in the Scottish Coöperative Society
_v._ Glasgow Fleshers’ Association, 35 Sc. L. R. 645, which was referred
to in the course of the argument. In this case some butchers induced
some salesmen not to sell meat to the plaintiffs. The means employed
were to threaten the salesmen that if they continued to sell meat to the
plaintiffs, they, the butchers, would not buy from the salesmen. There
was nothing unlawful in this, and the learned judge held that the
plaintiffs showed no cause of action, although the butchers’ object was
to prevent the plaintiffs from buying for coöperative societies in
competition with themselves, and the defendants were acting in concert.
The cardinal point of distinction between such cases and the present is
that in them, although damage was intentionally inflicted on the
plaintiffs, no one’s right was infringed—no wrongful act was committed;
whilst in the present case the coercion of the plaintiff’s customers and
servants, and of the plaintiff through them, was an infringement of
their liberty as well as his, and was wrongful both to them and also to
him, as I have already endeavored to show.
Intentional damage which arises from the mere exercise of the rights of
many is not, I apprehend, actionable by our law as now settled. To hold
the contrary would be unduly to restrict the liberty of one set of
persons in order to uphold the liberty of another set. According to our
law, competition, with all its drawbacks, not only between individuals,
but between associations, and between them and individuals, is
permissible, provided nobody’s rights are infringed. The law is the same
for all persons, whatever their callings: it applies to masters as well
as to men; the proviso, however, is all-important, and it also applies
to both, and limits the rights of those who combine to lock-out as well
as the rights of those who strike. But coercion by threats, open or
disguised, not only of bodily harm but of serious annoyance and damage,
is _prima facie_, at all events, a wrong inflicted on the persons
coerced; and in considering whether coercion has been applied or not,
numbers cannot be disregarded.
* * * * *
I conclude this part of the case by saying that, in my opinion, the
direction given to the jury by the learned judge who tried the case was
correct, so far as the liability of the defendants turns on principles
of common law, and that the objection taken to it by the counsel for the
appellant is untenable. I mean the objection that the learned judge did
not distinguish between coercion to break contracts of service, and
coercion to break contracts of other kinds, and coercion not to enter
into contracts.
I pass now to consider the effect of the statute 38 & 39 Vict. c. 86.
[The opinion on this point is omitted.]
My Lords, I will detain your Lordships no longer. Allen _v._ Flood,
[1898] A. C. 1, is in many respects a very valuable decision, but it may
be easily misunderstood and carried too far.
Your Lordships are asked to extend it and to destroy that individual
liberty which our laws so anxiously guard. The appellant seeks by means
of Allen _v._ Flood, [1898] A. C. 1, and by logical reasoning based upon
some passages in the judgments given by the noble Lords who decided it,
to drive your Lordships to hold that boycotting by trades unions in one
of its most objectionable forms is lawful, and gives no cause of action
to its victims although they may be pecuniarily ruined thereby.
My Lords, so to hold would, in my opinion, be contrary to well-settled
principles of English law, and would be to do what is not yet authorized
by any statute or legal decision.
In my opinion this appeal ought to be dismissed with costs.
_Order appealed from affirmed, and appeal dismissed with costs._[607]
VEGELAHN _v._ GUNTNER
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 26, 1896.
_Reported in 167 Massachusetts Reports, 92._
Bill in equity against fourteen individual defendants and two trades
unions.[608]
* * * * *
The following decree was entered at a preliminary hearing upon the bill:
“This cause came on to be heard upon the plaintiff’s motion for a
temporary injunction; and after due hearing, at which the several
defendants, were represented by counsel, it is ordered, adjudged, and
decreed that an injunction issue _pendente lite_, to remain in force
until the further order of this court, or of some justice thereof,
restraining the respondents and each and every of them, their agents and
servants, from interfering with the plaintiff’s business by patrolling
the sidewalk or street in front or in the vicinity of the premises
occupied by him, for the purpose of preventing any person or persons who
now are or may hereafter be in his employment, or desirous of entering
the same, from entering it, or continuing in it; or by obstructing or
interfering with such persons, or any others, in entering or leaving the
plaintiff’s said premises; or by intimidating, by threats or otherwise,
any person or persons who now are or may hereafter be in the employment
of the plaintiff, or desirous of entering the same, from entering it, or
continuing in it; or by any scheme or conspiracy among themselves or
with others, organized for the purpose of annoying, hindering,
interfering with, or preventing any person or persons who now are or may
hereafter be in the employment of the plaintiff, or desirous of entering
the same, from entering it, or from continuing therein.”
Hearing upon the bill and answers before Holmes, J., who reported the
case for the consideration of the full court, as follows:—
“The facts admitted or proved are that, following upon a strike of the
plaintiff’s workmen, the defendants have conspired to prevent the
plaintiff from getting workmen, and thereby to prevent him from carrying
on his business unless and until he will adopt a schedule of prices
which has been exhibited to him, and for the purpose of compelling him
to accede to that schedule, but for no other purpose. If he adopts that
schedule he will not be interfered with further. The means adopted for
preventing the plaintiff from getting workmen are, (1) in the first
place, persuasion and social pressure. And these means are sufficient to
affect the plaintiff disadvantageously, although it does not appear, if
that be material, that they are sufficient to crush him. I ruled that
the employment of these means for the said purpose was lawful, and for
that reason refused an injunction against the employment of them. If the
ruling was wrong, I find that an injunction ought to be granted.
“(2) I find also, that, as a further means for accomplishing the desired
end, threats of personal injury or unlawful harm were conveyed to
persons seeking employment or employed, although no actual violence was
used beyond a technical battery, and although the threats were a good
deal disguised, and express words were avoided. It appeared to me that
there was danger of similar acts in the future. I ruled that conduct of
this kind should be enjoined.
“The defendants established a patrol of two men in front of the
plaintiff’s factory, as one of the instrumentalities of their plan. The
patrol was changed every hour, and continued from half-past six in the
morning until half-past five in the afternoon, on one of the busy
streets of Boston. The number of men was greater at times, and at times
showed some little inclination to stop the plaintiff’s door, which was
not serious, but seemed to me proper to be enjoined. The patrol proper
at times went further than simple advice, not obtruded beyond the point
where the other person was willing to listen, and conduct of that sort
is covered by (2) above, but its main purpose was in aid of the plan
held lawful in (1) above. I was satisfied that there was probability of
the patrol being continued if not enjoined. I ruled that the patrol, so
far as it confined itself to persuasion and giving notice of the strike,
was not unlawful, and limited the injunction accordingly.
“There was some evidence of persuasion to break existing contracts. I
ruled that this was unlawful, and should be enjoined.
“I made the final decree appended hereto. If, on the foregoing facts, it
ought to be reversed or modified, such decree is to be entered as the
full court may think proper; otherwise, the decree is to stand.”
The final decree was as follows: “This cause came on to be heard, and
was argued by counsel; and thereupon, on consideration thereof, it is
ordered, adjudged, and decreed that the defendants, and each and every
of them, their agents and servants, be restrained and enjoined from
interfering with the plaintiff’s business by obstructing or physically
interfering with any persons in entering or leaving the plaintiff’s
premises numbered 141, 143, 145, 147 North Street in said Boston, or by
intimidating, by threats, express or implied, of violence or physical
harm to body or property, any person or persons who now are or hereafter
may be in the employment of the plaintiff, or desirous of entering the
same, from entering or continuing in it, or by in any way hindering,
interfering with, or preventing any person or persons who now are in the
employment of the plaintiff from continuing therein, so long as they may
be bound so to do by lawful contract.”
ALLEN, J. The principal question in this case is whether the defendants
should be enjoined against maintaining the patrol. The report shows
that, following upon a strike of the plaintiff’s workmen, the defendants
conspired to prevent him from getting workmen, and thereby to prevent
him from carrying on his business, unless and until he should adopt a
certain schedule of prices. The means adopted were persuasion and social
pressure, threats of personal injury or unlawful harm conveyed to
persons employed or seeking employment, and a patrol of two men in front
of the plaintiff’s factory, maintained from half-past six in the morning
till half-past five in the afternoon, on one of the busiest streets of
Boston. The number of men was greater at times, and at times showed some
little disposition to stop the plaintiff’s door. The patrol proper at
times went further than simple advice, not obtruded beyond the point
where the other person was willing to listen; and it was found that the
patrol would probably be continued, if not enjoined. There was also some
evidence of persuasion to break existing contracts.
The patrol was maintained as one of the means of carrying out the
defendants’ plan, and it was used in combination with social pressure,
threats of personal injury or unlawful harm, and persuasion to break
existing contracts. It was thus one means of intimidation indirectly to
the plaintiff, and directly to persons actually employed, or seeking to
be employed, by the plaintiff, and of rendering such employment
unpleasant or intolerable to such persons. Such an act is an unlawful
interference with the rights both of employer and of employed. An
employer has a right to engage all persons who are willing to work for
him, at such prices as may be mutually agreed upon; and persons employed
or seeking employment have a corresponding right to enter into or remain
in the employment of any person or corporation willing to employ them.
These rights are secured by the Constitution itself. Commonwealth _v._
Perry, 155 Mass. 117; People _v._ Gillson, 109 N. Y. 389; Braceville
Coal Co. _v._ People, 147 Ill. 66, 71; Ritchie _v._ People, 155 Ill. 98;
Low _v._ Rees Printing Co., 41 Neb. 127. No one can lawfully interfere
by force or intimidation to prevent employers or persons employed or
wishing to be employed from the exercise of these rights. In
Massachusetts, as in some other States, it is even made a criminal
offence for one by intimidation or force to prevent or seek to prevent a
person from entering into or continuing in the employment of a person or
corporation. Pub. Sts. c. 74, § 2. Intimidation is not limited to
threats of violence or of physical injury to person or property. It has
a broader signification, and there also may be a moral intimidation
which is illegal. Patrolling or picketing, under the circumstances
stated in the report, has elements of intimidation like those which were
found to exist in Sherry _v._ Perkins, 147 Mass. 212. It was declared to
be unlawful in Regina _v._ Druitt, 10 Cox C. C. 592; Regina _v._
Hibbert, 13 Cox C. C. 82; and Regina _v._ Bauld, 13 Cox C. C. 282. It
was assumed to be unlawful in Trollope _v._ London Building Trades
Federation, 11 T. L. R. 228, though in that case the pickets were
withdrawn before the bringing of the bill. The patrol was an unlawful
interference both with the plaintiff and with the workmen, within the
principle of many cases, and, when instituted for the purpose of
interfering with his business, it became a private nuisance. See Carew
_v._ Rutherford, 106 Mass. 1; Walker _v._ Cronin, 107 Mass. 555; Barr
_v._ Essex Trades Council, 8 Dick. 101; Murdock _v._ Walker, 152 Penn.
St. 595; Wick China Co. _v._ Brown, 164 Penn. St. 449; Cœur d’Alene
Consolidated & Mining Co. _v._ Miners’ Union, 51 Fed. Rep. 260;
Temperton _v._ Russell, [1893] 1 Q. B. 715; Flood _v._ Jackson, 11 T. L.
R. 276; Wright _v._ Hennessey, a case before Baron Pollock, 52 Alb. L.
J. 104; Judge _v._ Bennett, 36 W. R. 103; Lyons _v._ Wilkins, [1896] 1
Ch. 811.
The defendants contend that these acts were justifiable, because they
were only seeking to secure better wages for themselves by compelling
the plaintiff to accept their schedule of wages. This motive or purpose
does not justify maintaining a patrol in front of the plaintiff’s
premises, as a means of carrying out their conspiracy. A combination
among persons merely to regulate their own conduct is within allowable
competition, and is lawful, although others may be indirectly affected
thereby. But a combination to do injurious acts expressly directed to
another, by way of intimidation or constraint either of himself or of
persons employed or seeking to be employed by him, is outside of
allowable competition, and is unlawful. Various decided cases fall
within the former class, for example: Worthington _v._ Waring, 157 Mass.
421; Snow _v._ Wheeler, 113 Mass. 179; Bowen _v._ Matheson, 14 Allen,
499; Commonwealth _v._ Hunt, 4 Met. 111; Heywood _v._ Tillson, 75 Maine,
225; Cote _v._ Murphy, 159 Penn. St. 420; Bohn Manuf. Co. _v._ Hollis,
54 Minn. 223; Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Curran
_v._ Treleaven, [1891] 2 Q. B. 545, 561. The present case falls within
the latter class.
Nor does the fact that the defendants’ acts might subject them to an
indictment prevent a court of equity from issuing an injunction. It is
true that ordinarily a court of equity will decline to issue an
injunction to restrain the commission of a crime; but a continuing
injury to property or business may be enjoined, although it may also be
punishable as a nuisance or other crime. Sherry _v._ Perkins, 147 Mass.
212; _In re_ Debs, 158 U. S. 564, 593, 599; Baltimore & Potomac Railroad
_v._ Fifth Baptist Church, 108 U. S. 317, 329; Cranford _v._ Tyrell, 128
N. Y. 341, 344; Gilbert _v._ Mickle, 4 Sandf. Ch. 357; Mobile _v._
Louisville & Nashville Railroad, 84 Ala. 115, 126; Arthur _v._ Oakes, 63
Fed. Rep. 310; Toledo, Ann Arbor, & North Michigan Railway _v._
Pennsylvania Co., 54 Fed. Rep. 730, 744; Emperor of Austria _v._ Day, 3
DeG., F. & J. 217, 239, 240, 253; Hermann Loog _v._ Bean, 26 Ch. D. 306,
314, 316, 317; Monson _v._ Tussaud, [1894] 1 Q. B. 671, 689, 690, 698.
A question is also presented whether the court should enjoin such
interference with persons in the employment of the plaintiff who are not
bound by contract to remain with him, or with persons who are not under
any existing contract, but who are seeking or intending to enter into
his employment. A conspiracy to interfere with the plaintiff’s business
by means of threats and intimidation, and by maintaining a patrol in
front of his premises in order to prevent persons from entering his
employment, or in order to prevent persons who are in his employment
from continuing therein, is unlawful, even though such persons are not
bound by contract to enter into or to continue in his employment; and
the injunction should not be so limited as to relate only to persons who
are bound by existing contracts. Walker _v._ Cronin, 107 Mass. 555, 565;
Carew _v._ Rutherford, 106 Mass. 1; Sherry _v._ Perkins, 147 Mass. 212;
Temperton _v._ Russell, [1893] 1 Q. B. 715, 728, 731; Flood _v._
Jackson, 11 L. T. R. 276.
In the opinion of a majority of the court the injunction should be in
the form originally issued.
_So ordered._
[The opinion of FIELD, C. J., is omitted. His conclusion was, “that the
decree entered by Mr. Justice Holmes should be affirmed without
modification.”]
HOLMES, J. In a case like the present, it seems to me that, whatever the
true result may be, it will be of advantage to sound thinking to have
the less popular view of the law stated, and therefore, although when I
have been unable to bring my brethren to share my convictions my almost
invariable practice is to defer to them in silence, I depart from that
practice in this case, notwithstanding my unwillingness to do so in
support of an already rendered judgment of my own.
In the first place, a word or two should be said as to the meaning of
the report. I assume that my brethren construe it as I meant it to be
construed, and that, if they were not prepared to do so, they would give
an opportunity to the defendants to have it amended in accordance with
what I state my meaning to be. There was no proof of any threat or
danger of a patrol exceeding two men, and as of course an injunction is
not granted except with reference to what there is reason to expect in
its absence, the question on that point is whether a patrol of two men
should be enjoined. Again, the defendants are enjoined by the final
decree from intimidating by threats, express or implied, of physical
harm to body or property, any person who may be desirous of entering
into the employment of the plaintiff so far as to prevent him from
entering the same. In order to test the correctness of the refusal to go
further, it must be assumed that the defendants obey the express
prohibition of the decree. If they do not, they fall within the
injunction as it now stands, and are liable to summary punishment. The
important difference between the preliminary and the final injunction is
that the former goes further, and forbids the defendants to interfere
with the plaintiff’s business “by any scheme ... organized for the
purpose of ... preventing any person or persons who now are or may
hereafter be ... desirous of entering the [plaintiff’s employment] from
entering it.” I quote only a part, and the part which seems to me most
objectionable. This includes refusal of social intercourse, and even
organized persuasion or argument, although free from any threat of
violence, either express or implied. And this is with reference to
persons who have a legal right to contract or not to contract with the
plaintiff, as they may see fit. Interference with existing contracts is
forbidden by the final decree. I wish to insist a little that the only
point of difference which involves a difference of principle between the
final decree and the preliminary injunction which it is proposed to
restore, is what I have mentioned, in order that it may be seen exactly
what we are to discuss. It appears to me that the judgment of the
majority turns in part on the assumption that the patrol necessarily
carries with it a threat of bodily harm. That assumption I think
unwarranted, for the reasons which I have given. Furthermore, it cannot
be said, I think, that two men walking together up and down a sidewalk
and speaking to those who enter a certain shop do necessarily and always
thereby convey a threat of force. I do not think it possible to
discriminate and to say that two workmen, or even two representatives of
an organization of workmen, do,—especially when they are, and are known
to be, under the injunction of this court not to do so. See Stimson,
Handbook to Labor Law, § 60, esp. pp. 290, 298, 299, 300; Regina _v._
Shepherd, 11 Cox C. C. 325. I may add, that I think the more intelligent
workingmen believe as fully as I do that they no more can be permitted
to usurp the State’s prerogative of force than can their opponents in
their controversies. But if I am wrong, then the decree as it stands
reaches the patrol, since it applies to all threats of force. With this
I pass to the real difference between the interlocutory and the final
decree.
I agree, whatever may be the law in the case of a single defendant, Rice
_v._ Albee, 164 Mass. 88, that when a plaintiff proves that several
persons have combined and conspired to injure his business, and have
done acts producing that effect, he shows temporal damage and a cause of
action, unless the facts disclose, or the defendants prove, some ground
of excuse or justification. And I take it to be settled, and rightly
settled, that doing that damage by combined persuasion is actionable, as
well as doing it by falsehood or by force. Walker _v._ Cronin, 107 Mass.
555; Morasse _v._ Brochu, 151 Mass. 567; Tasker _v._ Stanley, 153 Mass.
148.
Nevertheless, in numberless instances the law warrants the intentional
infliction of temporal damage because it regards it as justified. It is
on the question of what shall amount to a justification, and more
especially on the nature of the considerations which really determine or
ought to determine the answer to that question, that judicial reasoning
seems to me often to be inadequate. The true grounds of decision are
considerations of policy and of social advantage, and it is vain to
suppose that solutions can be attained merely by logic and the general
propositions of law which nobody disputes. Propositions as to public
policy rarely are unanimously accepted, and still more rarely, if ever,
are capable of unanswerable proof. They require a special training to
enable any one even to form an intelligent opinion about them. In the
early stages of law, at least, they generally are acted on rather as
inarticulate instincts than as definite ideas for which a rational
defence is ready.
To illustrate what I have said in the last paragraph, it has been the
law for centuries that a man may set up a business in a country town too
small to support more than one, although he expects and intends thereby
to ruin some one already there, and succeeds in his intent. In such a
case he is not held to act “unlawfully and without justifiable cause,”
as was alleged in Walker _v._ Cronin and Rice _v._ Albee. The reason, of
course, is that the doctrine generally has been accepted that free
competition is worth more to society than it costs, and that on this
ground the infliction of the damage is privileged. Commonwealth _v._
Hunt, 4 Met. 111, 134. Yet even this proposition nowadays is disputed by
a considerable body of persons, including many whose intelligence is not
to be denied, little as we may agree with them.
I have chosen this illustration partly with reference to what I have to
say next. It shows without the need of further authority that the policy
of allowing free competition justifies the intentional inflicting of
temporal damage, including the damage of interference with a man’s
business, by some means, when the damage is done not for its own sake,
but as an instrumentality in reaching the end of victory in the battle
of trade. In such a case it cannot matter whether the plaintiff is the
only rival of the defendant, and so is aimed at specifically, or is one
of a class all of whom are hit. The only debatable ground is the nature
of the means by which such damage may be inflicted. We all agree that it
cannot be done by force or threats of force. We all agree, I presume,
that it may be done by persuasion to leave a rival’s shop and come to
the defendant’s. It may be done by the refusal or withdrawal of various
pecuniary advantages which, apart from this consequence, are within the
defendant’s lawful control. It may be done by the withdrawal, or threat
to withdraw, such advantages from third persons who have a right to deal
or not to deal with the plaintiff, as a means of inducing them not to
deal with him either as customers or servants. Commonwealth _v._ Hunt, 4
Met. 111, 132, 133; Bowen _v._ Matheson, 14 Allen, 499; Heywood _v._
Tillson, 75 Maine, 225; Mogul Steamship Co. _v._ McGregor, [1892] A. C.
25.