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during the years 1911, 1912, and 1913, as soon as plaintiff secured student boarders, or teacher boarders, the defendants, in prosecution of this purpose, caused these, plaintiff's customers, to leave her house, by threats to deprive them of the benefits of the school, or of their places, if they should refuse. By similar threats other persons were prevented from taking board with plaintiff; the defendants even going to the length of meeting trains and watching for new arrivals and deterring these from patronizing her house. The plaintiff is a person of good moral character, stands well in the community, and has always conducted a reputable establishment. The defendants, in setting on foot and prosecuting the conspiracy referred to, were not influenced by any motive of business rivalry, or competition, but acted as they did merely because of a feeling of ill will induced by plaintiff's refusal to turn James Wilson out of her house, and her refusal to permit Watters to dictate the price which she charged her customers.

The conspiracy was successful, and destroyed, or practically destroyed, plaintiff's business.

The damages are laid at $5,000.

The defendants interposed a demurrer purporting numerous grounds, but all resolvable into the single objection that the declaration stated no cause of action.

The trial judge sustained the demurrer, but the Court of Civil Appeals reversed that judgment, and the case then came to this court under the writ of certiorari.

[1-3] We think the declaration stated a good cause of action.

Every one has the right to establish and conduct a lawful business, and is entitled to the protection of organized society, through its courts, whenever that right is unlawfully invaded. Such right existing, the commission of an actionable wrong is established against any one who is shown to have intentionally interfered with it, without justifiable cause or excuse. To establish justification, it must be made to appear, not only that the act complained of was otherwise lawful and performed in a lawful manner, but likewise that it had some real tendency to effect a reasonable advantage to the doer of it. But in order to determine the reasonableness of such act it must be considered from the standpoint of both parties, with a view to ascertaining whether the defendant has acted merely in the due exercise of his own right to carry on business for himself. If this be found in his favor, while he may have done the plaintiff harm, he cannot be adjudged to have done an injury in the legal sense; that is, a wrongful act in violation of the legal right of another. Whether the defendant was in the reasonable exercise of his own similar rights must, from the view

court and jury in each case as it arises, on the law and the evidence. A defendant cannot excuse himself by the mere fact that the means used were his own, his property, his servants. He cannot, with justification in law, use his property, or anything else that appertains to him, in such manner as to wantonly injure another. Still, it has been decided, by the weight of authority, that if the act complained of, being otherwise lawful in itself, had a reasonable tendency to promote ends advantageous to the defendant in the conduct of his own business, it cannot be correctly adjudged an illegal agency or operation by the fact that the doer of it was moved also by a feeling of ill will, or personal malice, towards the person against whom his act was directed (West Va. Transportation Co. v. Standard Oil Co., 50 W. Va. 611, 40 S. E. 591, 56 L. R. A. S04, 88 Am. St. Rep. 895; 62 L. R. A. 673, note; L. R. A. 1915B, 1180, note); but if the act is otherwise wrongful, such personal malice may aggravate the damages (Cooley on Torts [2d Ed.] pp. 832, 836).

In short, if an act be hurtful to another, intentional, and without legal justification, it is malicious in the true legal sense (19 Am. & Eng. Ency. of Law [2d Ed.] 623, note 4), therefore unlawful, and is actionable.

Of course it is wholly impossible to formulate a description which will cover all acts which are intentionally hurtful to another, and at the same time justifiable in law. As already said, each case, as it arises, must be determined on its own facts, and in the light of the principles stated. It is left in each case for the court, or the court and jury, according to the way in which the controversy is presented, to say whether the defendant's conduct complained of was, in view of all the circumstances, a reasonable and proper exercise of his right of self-protection, or self-advancement, both as to the substance of it, and the method of it. of it, and the method of it. Huskie v. Griffin, 75 N. H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) 966, 139 Am. St. Rep. 718; Dunshee v. Standard Oil Co., 152 Iowa, 623, 132 N. W. 371, 36 L. R. A. (N. S.) 263; Gott v. Berea College, 156 Ky. 376, 161 S. W. 204, 51 L. R. A. (N. S.) 17; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 598; Mod. Am. Law, vol. 2, pp. 327-336.

In the latter authority it is said, quoting 28 Law Quarterly Review, 67:

"The theory of justification consists in a proper adjustment and compromise between the two competing rights that are equally protected in law. enjoyment by a particular individual of the It has been already observed that the right of freedom, as to how he should bestow his capital and labor, is not absolute, but qualified by the existence of equal rights in the other members, to such an extent as to be made compatible with an equally free enjoyment of these rights by the rest of the community. In fact, every case of justification reduces itself dividual can be so circumscribed in accordance to the question how far the rights of an in

equal scope for the free enjoyment of the com- | 814, 53 South. 346, Ann. Cas. 1912D, 796, it peting rights of his fellow men."

"But," said Lord Justice Bowen, in Mogul S. S. Co. v. McGregor, supra, "such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own right. The good sense of the tribunal which had to decide would have to analyze the circumstances and discover on which side of the line each case fell. But if the real object was to enjoy what was one's own, or to acquire for one's self some advantage in one's property or trade, and what was done was done honestly, peaceably, and without any of the illegal acts above referred to, it could not, in my opinion, properly be said that it was done without just cause or excuse." Id. 618, 619.

Although, as indicated, the defense of justification arising in such controversies is a question for decision in each case, as concreted in its own peculiar facts, yet the precedents shed much light in the way of illustrating the principles involved.

In an early English case, decided during the reign of Queen Anne (Keeble v. Hickeringill, 11 East, 574), reported in full as a note to Carrington v. Taylor, 11 East, 571, 574, 577, it appeared that the plaintiff had prepared a decoy pond for the purpose of taking wild fowl. The defendant knowing this, and purposing to injure the plaintiff by frightening away the wild fowl accustomed to resort to the pond, discharged guns on his own land, and the wild fowl were thus driven away. It was held that an action on the case would lie for the damages thus occasioned. Holt, Chief Justice, said that if the defendant had set up another decoy on his own ground near the plaintiff's, and that had spoiled the custom of the latter, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff; but when, without benefit to himself, real or intended, he successfully committed the act intending to accomplish the injury to the plaintiff, it was actionable.

In International & G. N. Ry. Co. v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 559, it was held that a railway company was liable to the proprietor of a boarding house for having deprived him of the patronage of its employés by threatening to discharge them if they patronized him. It did not appear that any interest of the railway company was served, or any benefit to it effected, by such order.

was held that an action for damages would lie against a corporation where it had maliciously injured a retail dealer by threatening to discharge any of its employés who should deal with him. To the same effect is Globe & R. F. Ins. Co. v. Fireman's Fund Ins. Co., 97 Miss. 148, 52 South. 454, 29 L. R. A. (N. S.) 869.

In Ertz v. Produce Exchange, 79 Minn. 145, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433, it was held that a conspiracy by several to refuse to deal with a dealer in farm produce, having a profitable business, and to induce others to do likewise, it not appearing that such interference of the persons so conspiring was to serve any legitimate interests of their own, but that it was done merely to injure him, and that the conspiracy had been carried into execution, whereby the plaintiff's business was ruined, furnished a cause of action in favor of the injured party.

On the other hand, it was held in Robison v. Texas Pine Land Association (Tex. Civ. App.) 40 S. W. 843, that an employer who issued store checks redeemable in merchandise was not liable to an action by another storekeeper for threatening to discharge its employés if they traded with him, and for refusing to take up any checks which had passed through the hands of plaintiff. The ground of the decision was that the plaintiff had no superior right to trade with defendant's employés; that defendant had the right to appropriate to itself all of the customers it could command, provided it did not violate a definite legal right of the plaintiff. The point of view is brought out more clearly in Lewis v. Huie-Hodges Lumber Co., 121 La. 658, 46 South. 685. The defendant was the employer of a large number of people, and in connection with its business carried on a general mercantile store for the purpose of selling goods to its employés and others. It notified its employés that if they bought goods of the plaintiff they would be discharged. The court held that defendant's act was justifiable as a means of safeguarding its own interests.

An interesting case is Delz v. Winfree. The controversy was first presented on a petition stating, in substance, that the defendants, members of two different firms engaged in buying and slaughtering live animals fit to be slaughtered and sold as fresh butcher's meat, conspired with each other, and with a butcher, not to sell to the petitioner for cash live animals or slaughtered meat for the prosecution of his business, and that in pursuance of this conspiracy they refused to sell him, although offered their own price in money, by reason of which unlawful combination and malicious interference the petitioner was compelled to close his business, and so had been damaged.

In Graham v. St. Charles Street R. R. Co., 47 La. Ann. 214, 16 South. 806, 27 L. R. A. 416, 49 Am. St. Rep. 366, it appeared that the foreman of the railway company, without any purpose of advancing its interests, threatened to discharge its servants if they continued to trade with plaintiff, who was conducting a grocery store near the stables and buildings of the company, in New Orleans, and by this order caused injury to the plaintiff. This conduct was held unjustifiable and therefore actionable.

80 Tex. 400, 16 S. W. 111. But when the case came on for trial on the issues made, it appeared that the refusal was based on the fact that the petitioner was indebted to the defendants, and they had refused to sell him because, he being insolvent, they deemed it prudent to have no further dealings with him until he had paid them what was due them. There were verdict and judgment in favor of the defendants, and on appeal the judgment of the trial court was sustained, the court holding that the reason assigned and proven justified the act complained of. 6 Tex. Civ. App. 11, 25 S. W. 50.

But in Dunshee v. Standard Oil Co., 152 Iowa, 623, 132 N. W. 371, 36 L. R. A. (N. S.) 263, it was held that the principle of reasonable self-protection, or self-advancement, did not justify the action taken. There it appeared that the defendant, a the defendant, a wholesaler, when its customer in a particular city began to purchase a portion of his stock from a rival concern, entered into a retail business solely for the purpose of driving him out of business, and when this had been accomplished ceased its said retail business. It was held that these facts made out a case for damages.

So, the case of Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446, 16 Ann. Cas. 807. Here it appeared that the plaintiff, a barber, had for several years carried on a profitable business, and that the defendant, a wealthy banker, possessed of great influence, set up an opposition shop, solely for the purpose of injuring the plaintiff, and without profit to himself, employing and paying barbers to conduct such opposition business, whereby plaintiff's business was ruined. It was held that these facts made a case for relief. The

court said:

"To divert to one's self the customers of a business rival by the offer of goods at lower prices is in general a legitimate mode of serving one's own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to himself, and for the sole purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton and an actionable tort."

To the same effect is Boggs v. DuncanSchell Furniture Co., 163 Iowa, 106, 143 N. W. 482, L. R. A. 1915B, 1196, quoting and approving Tuttle v. Buck.

The illegal acts excluded by general reference in the excerpt we have made from Mogul S. S. Co. v. McGregor, supra, are thus particularized by the Lord Justice in an earlier part of his opinion:

customers by show of violence (Tarleton v. McGawley, Peak, N. P. C. 270); the obstruction (Clifford v. Brandon, 2 Camp. 358; Gregory v. of actors on the stage by preconcerted hissing Brunswick, 6 Man. & G. 205); the disturbance of wild fowl in decoys by the firing of guns (Carrington v. Taylor, 11 East, 571, and Keeble v. Hickeringill, 11 East, 574, n.); the impeding or threatening servants or workmen (Garret v. Taylor, Cro. Jac. 567); the inducing persons under personal contracts to break their contracts (Bowen v. Hall, 6 Q. B. D. 333; Lumley v. Gye, 2 E. & B., 216)-all are instances of such forbidden acts."

They

before us, we are of the opinion that the deApplying the principles stated to the case fendants acted without legal excuse. were not justified by plaintiff's refusal to her refusal to arrange her rates according dismiss her boarder, James Wilson, nor by

to the directions of the defendant Watters. If the prices charged were pleasing to her patrons, no other person had any right to complain. No such defense appears as that set out in Gott v. Berea College, supra, based on the welfare of the students, or the right of the college to make rules for their con

trol.

Railroad, 13 Lea (81 Tenn.) 507, 49 Am. Rep. We are referred to the case of Payne v. 666, as an authority in opposition to the

The real

views herein stated. While that case was ably reasoned by the learned special judge who wrote the majority opinion, and is not without support in the authorities, we are constrained to hold that it was erroneously decided. We are better satisfied with the dissenting opinion. It is certain that the prevailing opinion in that case is out of harmony with the great weight of authority as now understood. Moreover, we have long been dissatisfied with that opinion, believing that it was fundamentally wrong. question was not, as assumed in that opinion, whether a master had the right to discharge his servants without liability to account to a third party for his reasons, good or bad, but it was whether the defendant had the right to injure the business of the plaintiff without any purpose to effect an advantage or benefit to itself. The plaintiff in that case could not lawfully question defendant's authority over its servants, but he could question the defendant's exercise of that authority solely for the purpose of destroying his business, the infliction of an injury on his business without legal justification, and

hence an act malicious in law.

It was said in that opinion that the act was not malicious in law, because although it inflicted a wrong on the plaintiff such wrong was not a legal wrong, but only a moral wrong, therefore, not an unlawful act. That position assumed the whole matter in "No man, whether trader or not, can, however, justify damaging another in his commercial controversy. We think the learned special business by fraud or misrepresentation. Intimi- judge confounded the right of a master to dation, obstruction, and molestation are forbid- discharge his servants subject to legal acden. So is the intentional procurement of a violation of individual rights, contractual or countability to no one save the servants other, assuming always that there is no just themselves for breach of contract, with the

business of another by threats made against those servants. It is said, if the master had the right to discharge his servants, he necessarily had the right to threaten to discharge them. The conclusion does not logically follow. He had no right to condition his threat, or the execution of his threat, on an injury to be inflicted, under his orders, by the servants on the personal business of another. The defendant could not lawfully threaten to discharge his servants if they should fail to assault and beat the plaintiff. Why? Because to assault and beat one who is doing no harm is unlawful. So, it is unlawful to interfere with another's business without a good excuse. The means cannot justify the act, or turn a wrong into a right. The opinion referred to is based on the hypothesis that the means used can effect this "It is argued that a man ought to have the metamorphosis, if that means be the exer- right to say where his employés shall trade. I cise of the power which the master has over well control his family in this, but an employer do not recognize any such right. A father may his servants through their fear of losing their ought to have no such right conceded to him. places, and hence their means of livelihood, In the case in hand and like cases under the and no violence be done. It cannot be that ways show by way of defense that he has had rule we have maintained, the party may ala master has power, within the law, to direct reason for what he has done; that the trader his servants where to buy for themselves, was unworthy of patronage; that he debauched or where not to buy, when no rightful good the employé, or sold, for instance, unsound food, to himself can be effected through such di- usefulness to him, or justified the withdrawal or any other cause, that affected his employé's rection. That would be to sanction tyranny, of custom from him. This is not in any way the enslavement of servants, and the sub- to interfere with the legal right to discharge an version of the law itself. The law wills free-assigned if the contract justifies it, but only that employé for good cause, or without any reason dom, save where a man is bound by its own he shall not do this solely for the purpose of behests, or has, through contract, submitted injury to another, or hold a threat over the his duty to the will of another. Where one employé in terrorem to fetter the freedom of the employs the power which the law gives him employé, and for the purpose of injuring an obnoxious party. by contract for purposes other than those of the contract, to the end that he may enslave the will of the person who has contracted with him, he does wrong, and if injury to another occurs thereby, he does a legal wrong, and cannot shelter himself behind the contract which he has diverted from its purposes, and so prostituted.

[er, I freely concede. But here is a use of his legal right to discharge employés, 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 good will of his business, which consists in his business character for integrity and fair dealing, his conveniof goods he sells, and fairness of price for which ence of location to his customers, the character they are sold, and the like. All these make up as elements of that property now well recognized in our law as the good will 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 the 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 said in the opinion we are criticizing that a man has the legal right to buy where he chooses and to sell to whom he will. This is true; but we think the point had no fitting part in the solution of the question then be fore the court. The right of a man to dispose of his own custom does not include the power, in law, to influence or control the custom of other people to the injury or destruction of the business of third parties. Such influence one can lawfully exercise only when it is used for the building up of his own business or the advancement of his own lawful interests. The true theory of the matter was fully discerned by Mr. Justice Freeman, and expressed by him in his masterly dissenting opinion filed in the cause in these words:

"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." 13 Lea (81 Tenn.) 541, 542, 49 Am. Rep. 666.

All of the foregoing excerpt is in accord with the views now held by the court (including as matter of justification acts for the lawful advancement of the master's own interest), and in harmony with the best judicial thought of the present time, and in our judgment should have controlled the decision of the cause.

We overrule Payne v. Railroad Co., in so far as it is in conflict with the present opin

ion.

The judgment of the Court of Civil Appeals in the case before us, reversing that of the trial court, must, on the grounds herein stated, be affirmed, and the cause remanded for issue and trial.

AMERICAN ZINC CO. v. GRAHAM.

Oct. 2, 1915.) 118-SAFE PLACE

"The rule I have maintained is in strict ac-(Supreme Court of Tennessee. cord with a maxim of the law, so well founded in reason as to need no argument or author- 1. MASTER AND SERVANT ity to support it; that is, that a man must so TO WORK-MINES-STATUTE. use his own as not to do an injury to others. Laws 1903, c. 237, § 28, requiring that That this means he shall so enjoy his legal right, the buckets used in mines shall be covered and as not to do wrong to the legal rights of anoth- that there shall be certain structures inside

their work.

TORY NEGLIGENCE.

In such case a servant, knowing that the master had failed to comply with the statute requiring certain structures inside the shaft to make it safe for employés going up and down, did not assume the risk; and the fact that the statute fixed a penalty for its violation did not exclude his action for damages.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. 204.]

3. MASTER AND SERVANT

118-MASTER'S NEGLIGENCE-VIOLATION OF STATUTE.

the shaft so as to make the ascent and descent to be drawn up, notice was given by a servant of employés safe, applied to a mine not fully in of the company standing at the foot of the operation, which had sunk a shaft more than 250 feet, from the foot of which ran a drift shaft by means of a wire connected with a to an old shaft, intended as a means of conduct- bell at the surface; three taps being given to ing air into the mine, and which was used by indicate that an employé was entering the the employés in going to and returning from bucket. The wall of this shaft was not pro[Ed. Note.-For other cases, see Master and tected in any manner, but was in the state Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. left by the excavation. The Acts of 1903, 118.] c. 237, § 28, requires that certain protections 2. MASTER AND SERVANT 204-SAFE PLACE shall be furnished for the security of emTO WORK — MINES - STATUTE-CONTRIBU-ployés. One of these is that the bucket shall be covered; another is that there shall be certain structures inside the shaft to make safe the ascent and descent of the employés. None of these requirements were complied with. The reason assigned by the company is that they wanted first to make the air connection complete and that they could not do both at once. It is also insisted that the mine was not complete, and that the statute did not apply to an incomplete mine. The plaintiff in error, while being drawn up through this shaft, was considerably injured by striking against the walls caused by the swinging of the bucket. [1] The first question to be determined is whether this statute applies to a mine incomplete in the respects herein stated. We are clearly of the opinion that it does. There is the same reason for protecting the miners going up and down the shaft in an incomplete mine as in one that is complete. The shaft itself was complete, except the building of the structures therein which the statute requires. This shaft had been put down some weeks, and, as already stated, the miners were then engaged in running a cross entry or drift from the foot of it. Of course, they had to go down this shaft in getting to their place of work on the drift, and at night had to be transported up the shaft to their homes. There was as much need to them of this protection as there ever could be.

A master's violation of the terms of a statute requiring structures to secure safety in mine shafts was negligence per se, and made him responsible for all injury suffered as a direct consequence thereof.

[Ed. Note. For other cases, see Master & Servant, Cent.Dig. §§ 177, 202, 209; Dec.Dig. 118.]

Certiorari to Court of Civil Appeals. Action by D. F. Graham against the American Zinc Company. From a judgment of the Court of Civil Appeals, affirming a judgment of the circuit court for Knox county for plaintiff, the defendant brings certiorari. Affirmed.

Pickle, Turner & Kennerly, of Knoxville, for plaintiff. Cornick, Frantz, McConnell & Seymour, of Knoxville, for defendant.

NEIL, C. J. Graham sued the zinc company to recover damages for an injury received by him while being drawn up a mine shaft belonging to the company. He recovered a judgment in the circuit court of Knox county for $500, and on appeal to the Court of Civil Appeals that judgment was sustained. The case was then brought here by the writ of certiorari.

[2] The second inquiry is whether the miner assumed the risk of the situation, knowing, as he did, that the plaintiff in error had failed to comply with the statute. To Plaintiff in error, the zinc company, is hold that he did assume the risk would be the owner of a zinc mine, and also a factory equivalent to a repeal of the statute, since for reducing the ore. At the time the injury it would be a continuing invitation to the occurred the factory had not been built, nor company to forbear compliance with its prohad the mine been put fully in operation. visions. The statute was passed under the A shaft had been sunk to the depth of more police power of the state for the purpose of than 250 feet. From the foot of this shaft protecting those who are unable to protect a drift was run to the location of an old themselves, occupying as they necessarily do shaft on the property with a view to drilling a position much inferior in financial securiupwards and reaching the bottom of that ty to that of their employers; the physical shaft, thus connecting the two. This was necessity of themselves and their families intended as a means of properly conducting making it essential that they should have air into the mine. The rock and ore broken work in order to secure the means of sustedown in the course of running the drift were nance. It would defeat this beneficent purcarried up through the new shaft by a metal pose if it should be admitted as a sound bucket drawn over a windlass propelled by principle that a failure of the employer to steam. In the same manner the employés obey the statute could be condoned by the of the company working in the mine were employé. Such a conclusion would place drawn to the surface. When employés were the employer in the position of power which

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