Thomason v. Sparkman ( 1932 )

On Rehearing.

Appellant calls attention to the recent ruling of the Commission of Appeals in Commonwealth B. & T. Co. v. Heid Bros., 52 S.W. (2d) 74. Our ruling that Sparkman is not a “necessary” party to the suit within the meaning of article 1995, subdivision 29a (Vernon’s Ann. Civ. St.), is not in harmony with the ruling of the Commission of Appeals in the case cited. We therefore withdraw our ruling upon this phase of the case.

In Raymond v. Yarington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914, it was held actionable for persons to knowingly induce one to break his contract with another in consequence of which damage was caused. This is in harmony with the general rule in other jurisdictions. 39 C. J., Title, Master & Servant, § 1606.

The authorities recognize that knowledge on the part of the defendant of the existence of the contract of employment is an essential element of the wrongful act. Such knowledge supplies the element of malicious or unlawful motive necessary to make the act of the defendant in enticing the servant, a tort.

15 R. O. L., Title, Interference, § 5; notes in 11 Am. St. Rep. 477 ; 5 L. R. A. (N. S.) 1094, 1095.

We doubt if the evidence is sufficient to show prima facie that the defendant Spark-man caused Webster to breach his contract of employment. In any event it is insufficient to show that Sparkman did so with knowledge of the contract of employment.

The evidence, therefore, is insufficient to show a cause of action against Sparkman for wrongfully inducing Webster to breach his contract.

As to the allegations that defendants converted certain property on the farm, there is no evidence that Webster was a party to any conversion. If any liability is shown as for conversion, it is the several liability of Spark-man.

It follows that no joint liability upon the part of the defendants is shown by 'the evidence so as to maintain the venue in Dallas county against Sparkman under the ruling in Commonwealth B. & T. Co. v. Heid Bros., supra.

The motion for rehearing is therefore overruled.