Beardsley v. Kilmer

Hinman, J. (dissenting):

As I understand the holding of Mr. Justice Kellogg it is laying down the proposition that the right of competition is self-justification always; and that however destructive to another who is competing in the same business, he who engages in such business with no thought of business profits therefrom but for the sole purpose of destroying that of the other, need not defend himself by charging that he is doing so by way of self-protection or because in some manner he has been provoked so to do by the 'acts of the other. It is from this conclusion of law that I wish to dissent.

I am inclined to agree with the more recent thought expressed by Mr. Justice Kellogg in his opinion holding to the proposition that one may not engage in and operate a business for the sole purpose of injuring another without reasonable and just excuse. It must, however, be a case of clear and unmixed malice. If that can be proved, I think there may be a recovery. This is a land of opportunity as well as of free competition in business and it becomes pro tanto a land of oppression where we lay down the fixed principle of law that a man who is wealthy enough and malicious enough can shut the door of opportunity to the object of his hatred by rivaling him in business with no other aim in view than his destruction, and be held to be in the exercise of his legal rights in so doing. Such an act of unmixed malice ought to be and I believe will be, held to be contrary to the prevailing public morality.

In this case the defendants may well have had just and reasonable excuse. Some newspapers take cowardly advantage of their power and when they do there is no more cogent method of defense than to engage in the newspaper business and “ fight the devil with fire.” Perhaps the jury would have so justified the act of the defendants, but that was an issue of fact to be determined by the jury.

Moreover it seems to me that the plaintiff’s cause of action was not barred by the Statute of Limitations. (Code Civ. Proc. § 382.) The defendants began an attempt to injure the plaintiff in 1904, more than ten years before bringing the action, but the injury to the plaintiff did not accrue until the Herald sold its assets and went out of business in 1910, two years within the statute, the action having been brought in 1914.

The defendants acted as an agency of attempted destruction, slowly and insidiously accomplishing the result. It would seem to me to be a question of fact as to whether it could be said that the purpose had been accomplished in whole or in part at any time prior to the time when the Herald went out of business. If the evil object was not accomplished there was no tort. There was always the chance that the defendants would not succeed until the damage was actually done. Under these circumstances the cause of action may not be deemed to have arisen until possibly 1910, depending upon the finding of the jury. It was not at any time a matter of direct or forcible trespass but something more to be likened to those indirect trespasses for which trespass on the case would lie at the common law. In trespass on the case no cause of action arose until the damage had been done. It was very different from the doing of an act and then having nothing further to do with it and no chance to stop the result of the act. The case here seems to parallel the situation covered in an action for alienation of a wife’s affections. It was held in Bockman v. Ritter (21 Ind. App. 250; 52 N. E. Rep. 100) that a complaint for alienating a wife’s affections stating that four years before defendant began to poison the wife’s mind does not show it is barred by the two years’ limitations when it appears that the wife did not leave her husband and declare she would no longer live with him until two weeks before suit commenced.

The case of Skipwith v. Albemarle Soapstone Co. (185 Fed. Rep. 15) also sustains this view of the plaintiff’s case, the injury in that case not having been an obvious and necessary result of the defendant’s operations until a time within the Statute of Limitations.

“ When a permanent structure causes an overflow and resulting damage to another, hmitations run against his claim from the time the obstruction is completed, if the nature and extent of the damage can be reasonably ascertained; but, if not, there may be as many successive recoveries as there are successive injuries developed.” (Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330; 155 S. W. Rep. 127.) This principle of successive recoveries is sustained in Meruk v. City of New York (223 N. Y. 271, 276) and in a long line of water damages in this State where the cause of injury was completed at a time against which the statute had run but the injuries continued within the period of the statute (Colrick v. Swinburne, 105 N. Y. 503; Reed v. State, 108 id. 407); and in the elevated railroad cases which hold that the statute is not a bar to damages suffered within six years. (Galway v. Met. El. R. Co., 128 N. Y. 132.)

For these reasons I believe the judgment should be reversed and a new trial granted. ■ -

Judgment affirmed, with costs.