Payne v. Western & Atlantic Railroad ( 1884 )

'FueeMAN, J.,

delivered the following dissenting opinion.

TtjbNEY, J., concurring:

The declaration in this case in the first count is substantially that plaintiff occupied a store in the city of Chattanooga, in the center of five railroad termini leading into the city, and had built up a large and profitable business with the employes of said roads, and was especially selling many goods and doing a large business with the agents and employes of the defendant company, and that defendants conspired to break up, injure and destroy him;* by issuing an order from the superior officer, J. C. Anderson, to the yardmaster of the road to the effect as follows:

J. T. Robinson, Y. M. — Any employe of this company on Chattanooga pay-roll, -who trades with L. Payne from this date will be discharged. Notify all in your department.

Like orders were issued to other heads of department of work in said company. He then avers he was brought into disrepute and greatly damaged — his business ruined.

The second count alleges that the defendants wantonly and maliciously undertook by means of threats, intimidation, slander, etc., to oppress, injure and damage plaintiff in his business, and threatened to discharge any employe of said road who should trade with plaintiff, so that this being generally circulated, not only the employes were debarred from trading with him, but he was brought into reproach, disrepute and suspicion, and lost his other trade ■ and customers.

I assume that these two counts fairly aver that defendants conspired to injure the trade and business of plaintiff, by an order to- the employes of the railroad company, issued by the party who had the authority to enforce it, that any employe who should thereafter trade with plaintiff — that is patronize him in his business — should be discharged from the employment of the company, and that this was done maliciously in the legal sense of that term (if it was unlawful), because a, wrongful act, or an act done to the injury of another, without any legal excuse or justification.

In this view the particular motive of the party, so far as it was prompted 'by personal ill-will, would not be important, except in aggravation of damages, or-showing the evil purpose of the act, or in giving punitive damages, should a jury deem it a proper case lor punishment on all the facts.

The whole case turns probably’ on the question as to whether such a conspiracy, carried into effect by the issuance of the order, is the exercise of a lawful right, or is violation of law. I shall consider it in this aspect of it. I think the soundest principles of law - well settled, and never questioned at this day, as well as the demands of public policy for this country ? all things considered, demand that the facts charged shall be the basis of an action and recovery, unless defendants shall show something that shall justify their conduct and authorize the act, more than a mere will to do it. What might justify such conduct will be noticed before concluding.

It is • true this case is one of first impression in our State, and we have no precedent precisely covering the facts to guide us. It might even be conceded,, that the precise principle involved had never been . adjudicated by our courts, and still a remedy might well be found growing out of the analogies of pur law, taking other principles that are settled as the basis on which the rule should be formulated, and its correctness reasoned out and indicated.

We might even go further and say if the exigences of our advancing civilization demanded it, a new principle might be-" 'formulated to meet that demand, and this principle embodied in the well, established forms of remedy found in our system of remedial jurisprudence. It is as much a part of the common law, that it has growth and expansive power to meet the wants of an advancing and necessarily complex system of civilization, as that precedent shall have its due influence in settling what that law is at any period of that growth. Both principles have their legitimate spheres of operation, and are equally legitimate, when properly brought into play and judiciously used by enlightened courts. In no other way can that law be conceived to .grow, and that growth is one of its most striking historic elements, can easily be seen by seeing what it was in the pages of Bracton, or even our more modern legal classic, Blackstone, and what we find it to-day, as we administer it. I need but say it will be found, that almost all, at least seventh-tenths of what we administer every day, was unknown in the time of Blackstone, and undreamed of by that great master • of the common law, as it was in his day. “The process of growth,” says Judge Cooley in his work on Torts, page 12, has been something like the following: “Every principle declared by a court in giving judgment is supposed to be a principle more or less general in its application, and which is applied under the facts of the case, because, in the opinion court, the facts bring the case within the principle. The case is not the measure of the principle, it does not limit and confine it within the exact facts, but it furnishes an illustration of the principle which might still have been applied, had some of the facts been different. But cases are seldom exactly alike in their facts; they are, on the contrary, infinite in their diversities, and as numerous controversies on differing facts are found within the reach of the same general principle, the principle seems to expand, and does actually become more comprehensive, though so steadily and insensibly under legitimate judicial treatment, that for the time the expansion passes unobserved.” So much for growth in this way.

“But,” he adds, “new and-peculiar cases must arise from time to time for which the courts must find the growing principle, and these may either be referred to some principle previously declared, or to some one which now for the first time there is occasion to apply.”

If the present case can be.ranged under either one of these categories, it will find a legitimate place in the jurisprudence of our State. I assume it may be properly solved by a sound application of already established principles, and shall attempt to show that they solve it by sustaining the right of the plaintiff in what he has averred in his declaration (the case .standing on demurrer to a recovery), prima facie at least, and this is all that is necessary in the present .aspect of the case.

It is axiomatic in our law, that there is no wrong without a remedy. I concede this necessarily means no legal wrong, therefore the question is whether there is a legal wrong in this case, if so the remedy follows as a matter of course. I may further concede frankly, that it is a self-evident proposition, that where .a party has the legal right to do a thing, the motive with which he may' assert his right, will not give a right of action, even where malice prompted the act: Wait’s Act. & Def., vol. 1, 35, 36, and cases cited.

Is a legal wrong averred in this case? It is ingeniously and most ably argued, that none has been, done, and cases cited in support of the view decided by various courts, in which with more or less directness, it has been so adjudged. With proper respect for these courts, I am compelled to differ with them,, and proceed' to give my reasons.

The sound principle, I think, is stated by Mr. Addison — a writer of accredited 'reputation — in his work on Torts, page 20: “Injuries to property, indirectly brought about by menaces, false representation or fraud,, create as valid a cause of action as any direct injury from force or trespass. Thus if the plaintiff’s tenants have been driven away from their holdings by the menaces of the defendant, damages are recoverable for the wrong done.” So in a note to this by an American Editor, it is said, “that preventing a person from trading with another, by posting placards near his place [of business calculated to bring him into contempt and injure his business, or issuing circulars aud posting them near a person’s work-shop, the legitimate and natural effect of which is to cause his workmen to leave his employ,” are actionable by the party injured. For this is cited Gilbert v. Mickle, 4 Sand. Ch., (N. Y.), 357, and Springhead Spinning Company v. Riley, Law R., 6th Eq. Cases, 537.

Let us apply these principles to the case in hand. It is seen that they involve no element of contract as between the party, suing, not' even in the case of the land)Orel whose tenants have been driven off by menaces, nor privity of contract. But the injury was simply a pecuniary one to him by loss of profits from his land by reason of ■ the absence of his tenants. That case has precisely the same essential elements in it that this has. It was an injury resulting to a third party by operating upon another, or threatening such wrong. This is the same in principle. The menace or threat in the order issued is a wrong done to the freedom of the employe to buy where he chooses or may find it to his interest to buy. The tenant in that case may have .had no right of action by reason of the mere menaces, would not have had, yet the landlord did have, because he was .pecuniarily injured by the act, though the tenant may not have been. The case of Gilbert v. Mickle, is precisely in point, where persons were prevented from trading with another, by placards calculated to bring him into contempt and thus his business] injured. And so the English case of circulars posted up, the legitimate effect of which was to cause his workmen to leave him. So much for adjudication on the point. That .the issuance of an order by an agreement, between the railroad corporation, and its officer having an authority to discharge — threatening discharge from employment if the employe should buy from a party in business, would be more effective, and a more direct means to effect the end designed, than a placard or circular addressed to or read by parties over whom the parties had no control whatever," need not be argued. We should have to shut our eyes to the truth of the case to doubt on such a question. Let us see if this view is not sustained by the sound analogies furnished from other well established principles. It is well established that an action does not lie against a person for causing an injury by an accident unavoidable : Wait’s Act. & Def., vol. 1, 160, and cases cited. But if any blame attaches .to the party, by reason of the negligent performance of the act, then he is responsible: Id., vol. 6, 119. One who, without intention inflicts personal injury, will not be liable, if he exercised the prudent care and diligence demanded by the circumstances: Id., and authorities cited.

If a party is held responsible in damages, where he is doing an act itself lawful, simply because of want of due care which was prudent to exercise under the circumstances, and for this negligence is held to answer in damages for an act beyond his intention, and it may be one, the result of which he would have never voluntarily sought. Much more ought he to be held liable, where the act is one deliberately purposed .and the result deliberately sought, and the means most effective and best calculated to produce the result deliberately adopted and persistently carried out.

It will be said the injury is the result of negligence and this was unlawful only because it produced injury, as in the case of a man shooting arrows at a mark, and one glanced and struck another, he was held responsible in damages, although the act was lawful in itself, even as far back as the year books See Wait, vol. 1, 160.

So here is an act threatened and done which of' itself might be lawful, that is to discharge the employe, but when you add a conspiracy to do so in all cases, if the parties trade with another and thus injure him, and to do this with that purpose, here is an act done directly with the evil intent that injures another, and much more should the party respond in ' damages for it. • Whenever there is an act done with the purpose to injure another, and not simply in the exercise of one’s legal right and that injury is produced, and the means used naturally tend to the. end designed, then for that injury the party should be held .responsible, even though the act with no such purpose, and no such result might be lawful. Thus, if A sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the woodland of his neighbor, no action lies unless there was-some negligence or misconduct on the part of him or his servants: 8 John., 422, and other cases; Wait, vol. 1, 161. Numerous like cases are found, all involving the same principle.

But if the party is neld responsible for want of due care and precaution to prevent injury-to his neighbor, when he exercises a’ clear legal right, how can it be, that if without any ca%e, on the contrary, with the well conceived -plan, and of deliberate purpose he does an act, which might be lawful of itself, solely for the end of doing that injury?

Judge Cooley in his work on Torts, page 693, in treating of the effect of motive, in doing an act which the party had the right of itself to do, says: “ Suppose, for instance, a man should make an excavation on his own ground for the mere purpose of annoying his neighbor, and compelling him to be at expense of' supports for his building, would not his motive demand of him the observance of more than ordinary care to avoid injury? Suppose he were to build a fire on his own premises for the sole purpose of incommoding a neighbor with smoke and dust, and the fire should spread to the neighbor’s premises, the motive itself strengthens greatly any other evidence that might exist of the want of proper care to prevent the fire spreading?” The point, he adds, “is not without interest, and it would seem that there must certainly be some difference between the man who proposes to keep-within the limits of the legal right, and also to cause no annoyance and the man who proposes to cause what annoyance he may find possible without exceeding these limits.”

I answer, there should be such a difference, but it is not found in requiring more care in the case of the act done with the bad motive, for in either case due care must be taken, and if any negligence occurs the party is liable, as held by this court at this term in the case of Sallie v. East Tennessee, Virginia & Georgia Railroad Company, and that where the injury was-done to another by the use of one’s own property, he was bound to show that all precautions were taken to prevent it. The care in such a case must be such as is reasonably adapted to prevent the injury, - and the want of this would make the party liable regardless of motive., But now suppose the act is done,. say the fire kindled, not to annoy simply, but with the purpose the neighbor's property shall be destroyed by it, and it is so placed, as that naturally it will be likely to reach his buildings; no one ever doubted the party would be liable for this purposed wrong. Suppose the excavation is made to annoy, and purposely so planned, that it shall from the nature of the soil, undermine and destroy his neighbor’s building, would not this be beyond, and a much stronger case of liability, than mere neglect of proper precautions? Suppose in the case of the Goal Chutes it had appeared that the company had no need to, put them near the party’s dwelling, but had purposely put them there to destroy its value, would it not be much more liable for the injury than if it had simply Tailed to use the most effective means to prevent it? I think it would, both in law and sound morality, as well as a true public policy.

It is settled by a large weight of authority, that a man may become a trespasser by the improper use of his own premises or property, as by excavating his soil so as to divert the natural flow of a stream from the adjoining owner: VanHossen v. Coventry, 10 Barb., 518. Or to displace a party wall: 6 Duer., 17. Or to undermine the natural lateral or subjacent support of the land of his neighbor: 1 Law & Eq. R., 241. In all these cases the act .itself is lawful, bnt when it is so done as to injure a neighbor it becomes actionable.

Now, in all these cases the law ’gives a remedy where an injury is done to another, simply because a party, though exercising a legal right, and using his ■own, has neglected proper precautions to prevent an injury to his neighbor; much more should it give a remedy, where the injury was purposed, and the use ■or exercise of his own right is only a cover to injure his neighbor. The exercise of no legal right per se will in the slightest degree be infringed. The party»''' would only be required to exercise his legal rights for proper and justifiable purposes, and wherever these were shown there would be no' liability, but whenever the exercise of the right was solely for the purpose of injury to another, and such injury followed, he should respond in damages for that which he had purposely inflicted. He cannot complain at the purposed result of his own act being visited upon him. ' p - /' If, however, he could show it was exercised for justifiable cause as in this case, because the party supplied liquor to intoxication or impure food, or the like j to his employes, by which their efficiency was lessened j and he injured, then such an order would be justified./

This question is discussed with much ability in an opinion by Chief Justice Appleton, of the Supreme Court of Maine, A. R., 373, Haywood v. Tillson. It was there held that no action lay by the owner of a house against one who maliciously refuses to employ any tenant of such house and thus prevents its renting. This case is different or stronger than that, as is shown or averred that the purpose of the order is to injure the plaintiff's business. In that case no such pmrpose was shown. There was a mere threat in that case, that no man who was a tenant of' plaintiff’s house should work for defendant, The party was under no obligation to employ such occupant, nor had any one been turned out of employment on account of occupying the house. It was only a threat, and nothing more, and there were other reasons justifying the threat,

I concede the argument of the opinion is in support of the view of defendants in this case, but in so far as it does support it, I do not think it sound. The plaintiff had the property in the goodwill of his business, which consisted largely in the location of his house near the work shops of defendant, it may have been purchased by reason of this advantage. That location gave 'him the right unrestrained to all the natural trade advantages incident to that locality. The location with these advantages would render his business far ■ more valuable, and the property owned by him proportionately valuable. This-value would consist largely in convenience for obtaining the custom of the employes of defendants. That they are numerous is averred, and. the effect -of the order calculated and certainly effective to prevent his getting this custom, and thereby destroy much of his trade theretofore had. In addition it is seen that the withdrawal of so many customers would naturally tend to excite suspicion against plaintiff’s character as a tradesman, and thus his injury be increased. All this, taking the averments of the declaration were results that might be foreseen, and were the natural result of the act of .defendants, and they should be held responsible as others for such results if proven, and no justifiable reason or excuse given for the order. On- this question, as I have shown, there may be found both authority, and as I think, sound legal analogy in favor of the propositions maintained. There are authorities and plausible reasonings, it is conceded, on the other side. The question is which is the better rule, and which will best serve the ends of a sound public policy ?

The rule I have maintained- is in strict accord with a maxim of the law, so well founded in reason as to need no argument or authority to support it, that is, that a man must so use his own as not to do an injury to others. That this means he shall so enjoy his legal rights, as not to do a wrong to the legal rights of another, I freely concede. But here is. a use of his legal' right to discharge employes, for the direct purpose and with no other, and for no other reason except to prevent their trading with a party legitimately entitled by his location and the character of his business to such trade. Here is the use of a legal right, to deprive the other of that which is his legal right, to-wit, the property he has in the goodwill of his business, which consists in his business character for integrity and fair dealing, his convenience of location to his customers, the character of goods he sells, and fairness of price for which they are sold, and ' the like. All these make up as elements of that property now well recognized in our law as the “goodwill” of a business. For a party who has the power, to use that power,' to destroy or injure the value of this property, in the exercise of a right, not for any reason of advantage to himself, but solely to injure another, ought not to be permitted by an enlightened system of jurisprudence in this country.

It is argued that a man ought to have the right to say where his employes shall -trade. I do not recognize any such right. A father may well control his family in this, but an employer ought to have no such right conceded to him. In the case in hand and like cases under the rule we have maintained, the party may always show by way of defense that he has had reasons for what he has done; that the trader was unworthy of patronage; that ,he debauched the employe, or sold, for instance, unsound food, or any other cause, that affected his employes’ usefulness to him, or justified the withdrawal of custom from him. This is not in .any way to interfere with the legal right to discharge an employe for good cause, or without any reason assigned if the contract justifies it, but only that he shall not do this solely for the purpose of injury to -another, or hold the threat over the employe in terrorem to fetter the freedom of the employe,, and for the purpose of injuring an obnoxious party.

Such conduct is not justifiable in morals, and ought not to be in law, and when the injury is done as averred in this case the party should respond in damages. The principle will not interfere with any proper use of’ the legal rights of the employer, an improper and injurious use is all it forbids.

In view of the immense development and large aggregations of capital in this favored country — a capital to be developed and aggregated within the life of the present generation more than a hundred fold— giving the command of immense numbers of employes,, by such means as we have before us in this case, it is the demand of a sound public policy, for the future more especially, as well as now, that the use of this power should be restrained within legitimate boundaries. Take for instance the larger manufacturing establishments of the country — of which we will in time have our full share, when thousands upon thousands of hard-working operatives will be employed. It will be to their interest to have free competition in the-purchase of supplies for their wants, and its beneficial influences 'in keeping prices at the normal standard. The merchant and groceryman, and other traders should be untrammelled to furnish these, and the employes untrammelled in the exercise of his right to purchase where his interest will best be subserved. If, however, these masters of aggregated capital can use their power over their employes as in this case, all other traders except such as they choose to permit will be driven away or crushed out, and their capital probably alone-have a monopoly to furnish his employes at his own rates freed from competition. The result is that capital may crush legitimate trade, aud thus cripple the general property of the country and; the employe be-subject to its grinding exactions at will.

The principle of the majority opinion will justify employers, at any rate allow them to require employes to trade where they may demand, to vote as they may require, or do anything not strictly criminal that employer may dictate, or feel the wrath of employer by ■dismissal- from service. Employment is the means of sustaining life to himself and family to the employe, and so be is morally though not legally compelled to submit. •Capital may thus not only find its own legitimate employment, but may control the employment of others to an extent that in time may sap the foundations of our free institutions. Perfect freedom in all legitimate uses is due to capital, and should be zealously enforced but public policy and all the best interests of society •demands it shall be restrained within legitimate boundaries, and any channel by which it may escape or over-leap these boundaries, should- be carefully but judiciously guarded. For its legitimate uses I have perfect respect, against its illegitimate use I feel- bound, for the best interests, both of capital and labor, to protest.

In view of the legal reasons and authorities given, and these elements of a sound public policy, I think the rules I have maintained and authorities sustaining them, are the better based in all the elements of • sound rules of action that will best subserve the public interest, and at the same time do violence to no right that is exercised with a commendable or just motive, for a commendable and proper end, will only restrain wrong and prevent conduct that no sound judgment will approve as bassd on a sound morality.

I therefore think the action prima faoie maintain•able, and the demurrer should be overruled.