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Tenn.)

HUTTON v. WATTERS

135

during the years 1911, 1912, and 1913, as court and jury in each case as it arises, on soon as plaintiff secured student boarders, the law and the evidence.

the law and the evidence. A defendant canor teacher boarders, the defendants, in prose- not excuse himself by the mere fact that the cution of this purpose, caused these, plain- means used were his own, his property, his tiff's customers, to leave her house, by servants. He cannot, with justification in threats to deprive them of the benefits of law, use his property, or anything else that the school, or of their places, if they should appertains to him, in such manner as to wanrefuse. By similar threats other persons tonly injure another. Still, it has been dewere prevented from taking board with cided, by the weight of authority, that if the plaintiff; the defendants even going to the act complained of, being otherwise lawful in length of meeting trains and watching for itself, had a reasonable tendency to promote new arrivals and deterring these from pa- ends advantageous to the defendant in the tronizing her house. The plaintiff is a per- conduct of his own business, it cannot be son of good moral character, stands well in correctly adjudged an illegal agency or opthe community, and has always conducted eration by the fact that the doer of it was a reputable establishment. The defendants, moved also by a feeling of ill will, or perin setting on foot and prosecuting the con- sonal malice, towards the person against spiracy referred to, were not influenced by whom his act was directed (West Va. Transany motive of business rivalry, or compe portation Co. v. Standard Oil Co., 50 W. Va. tition, but acted as they did merely because 611, 40 S. E. 591, 56 L. R. A. S04, 88 Am. St. of a feeling of ill will induced by plaintiff's Rep. 895; 62 L. R. A. 673, note; L. R. A. refusal to turn James Wilson out of her 1915B, 1180, note); but if the act is otherhouse, and her refusal to permit Watters to wise wrongful, such personal malice may agdictate the price which she charged her cus- gravate the damages (Cooley on Torts [20 tomers.

Ed.] pp. 832, 836). The conspiracy was successful, and de- In short, if an act be hurtful to another, stroyed, or practically destroyed, plaintiff's intentional, and without legal justification, business.

it is malicious in the true legal sense (19 The damages are laid at $5,000.

Am. & Eng. Ency. of Law [2d Ed.] 623, note The defendants interposed a demurrer pur-4), therefore unlawful, and is actionable. porting numerous grounds, but all resolvable Of course it is wholly impossible to formuinto the single objection that the declaration late a description which will cover all acts stated no cause of action.

which are intentionally hurtful to another, The trial judge sustained the demurrer, and at the same time justifiable in law. As but the Court of Civil Appeals reversed that already said, each case, as it arises, must judgment, and the case then came to this be determined on its own facts, and in the court under the writ of certiorari.

light of the principles stated. It is left in [1-3] We think the declaration stated a each case for the court, or the court and jury, good cause of action.

according to the way in which the controEveryone has the right to establish and versy is presented, to say whether the deconduct a lawful business, and is entitled fendant's conduct complained of was, in view to the protection

protection of organized society, of all the circumstances, a reasonable and through its courts, whenever that right is proper exercise of his right of self-protection, unlawfully invaded. Such right existing, the or self-advancement, both as to the substance commission of an actionable wrong is estab- of it, and the method of it. Huskie v. Griflished against any one who is shown to have fin, 75 N. H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) intentionally interfered with it, without jus- 966, 139 Am. St. Rep. 718; Dunshee v. Standtifiable cause or excuse. To establish justi- ard Oil Co., 152 Iowa, 623, 132 N. W. 371, 36 fication, it must be made to appear, not only L. R. A. (N. S.) 263; Gott v. Berea College, that the act complained of was otherwise 156 Ky. 376, 161 S. W. 204, 51 L. R. A. (N. S.) lawful and performed in a lawful manner, 17; Mogul S. S. Co. v. McGregor, L. R. but likewise that it had some real tendency 23 Q. B. Div. 598; Mod. Am. Law, vol. 2, to effect a reasonable advantage to the doer pp. 327-336. of it. But in order to determine the reason- In the latter authority it is said, quoting ableness of such act it must be considered 28 Law Quarterly Review, 67: from the standpoint of both parties, with a "The theory of justification consists in a propview to ascertaining whether the defendant er adjustment and compromise between the two has acted merely in the due exercise of his competing rights that are equally protected in own right to carry on business for himself. enjoyment by a particular individual of the

It has been already observed that the If this be found in his favor, while he may right of freedom, as to how he should bestow have done the plaintiff harm, he cannot be his capital and labor, is not absolute, but qualiadjudged to have done an injury in the legal fied by the existence of equal rights in the oth

er members, to such an extent as to be made sense; that is, a wrongful act in violation compatible with an equally free enjoyment of of the legal right of another. Whether the these rights by the rest of the community. In defendant was in the reasonable exercise of fact, every case of justification reduces itself his own similar rights must, from the view äividual can be so circumscribed in accordance

law.

99

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

was held that an action for damages would S. S. Co. v. McGregor, supra, "such legal jus- | lie against a corporation where it had malitification would not exist when the act was mere- ciously injured a retail dealer by threatenly done with the intention of causing temporal ing to discharge any of its employés who harm, without reference to one's own lawful should deal with him. To the same effect is gain, or the lawful enjoyment of one's own right. The good sense of the tribunal which had to Globe & R. F. Ins. Co. v. Fireman's Fund decide would have to analyze the circumstances Ins. Co., 97 Miss. 148, 52 South. 454, 29 L. and discover on which side of the line each case R. A. (N. S.) 869. fell. But if the real object was to enjoy what was one's own, or to acquire for one's self some

In Ertz v. Produce Exchange, 79 Minn, advantage in one's property or trade, and what 145, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. was done was done honestly, peaceably, and Rep. 433, it was held that a conspiracy by without any of the illegal acts above referred to several to refuse to deal with a dealer in it could not, in my opinion, properly be said that it was done without just cause or excuse." farm produce, having a profitable business, Id. 618, 619.

and to induce others to do likewise, it not Although, as indicated, the defense of appearing that such interference of the perjustification arising in such controversies is sons so conspiring was to serve any legitia question for decision in each case, as con- mate interests of their own, but that it was creted in its own peculiar facts, yet the prec- done merely to injure him, and that the edents shed much light in the way of illus- conspiracy had been carried into execution, trating the principles involved.

whereby the plaintiff's business was ruined, In an early English case, decided during furnished a cause of action in favor of the the reign of Queen Anne (Keeble v. Hicker- injured party. ingill, 11 East, 574), reported in full as a

On the other hand, it was held in Robison note to Carrington v. Taylor, 11 East, 571, v. Texas Pine Land Association (Tex. Civ. 574, 577, it appeared that the plaintiff had App.) 40 S. W. 843, that an employer who prepared a decoy pond for the purpose of issued store checks redeemable in merchantaking wild fowl. The defendant knowing dise was not liable to an action by another this, and purposing to injure the plaintiff storekeeper for threatening to discharge its by frightening away the wild fowl accustom- employés if they traded with him, and for ed to resort to the pond, discharged guns on refusing to take up any checks which had his own land, and the wild fowl were thus passed through the hands of plaintiff. The driven away. It was held that an action on ground of the decision was that the plaintiff the case would lie for the damages thus had no superior right to trade with defendoccasioned. Holt, Chief Justice, said that ant's employés; that defendant had the if the defendant had set up another decoy right to appropriate to itself all of the cuson his own ground near the plaintiff's, and tomers it could command, provided it did that had spoiled the custom of the latter, not violate a definite legal right of the plainno action would lie, because he had as much tiff. The point of view is brought out more liberty to make and use a decoy as the plain- clearly in Lewis v. Huie-Hodges Lumber Co., tiff; but when, without benefit to himself, 121 La. 658, 46 South. 685. The defendant real or intended, he successfully committed was the employer of a large number of peothe act intending to accomplish the injury ple, and in connection with its business carto the plaintiff, it was actionable.

ried on a general mercantile store for the In International & G. N. Ry. Co. v. Green- purpose of selling goods to its employés and wood, 2 Tex. Civ. App. 76, 21 S. W. 559, it others. It notified its employés that if they was held that a railway company was liable bought goods of the plaintiff they would be to the proprietor of a boarding house for discharged. The court held that defendant's having deprived him of the patronage of its act was justifiable as a means of safeguardemployés by threatening to discharge them ing its own interests. if they patronized him. It did not appear An interesting case is Delz v. Winfree. that any interest of the railway company The controversy was first presented on a was served, or any benefit to it effected, by petition stating, in substance, that the desuch order.

fendants, members of two different firms In Graham v. St. Charles Street R. R. Co., engaged in buying and slaughtering live ani47 La. Ann. 214, 16 South. 806, 27 L. R. A. mals fit to be slaughtered and sold as fresh 416, 49 Am. St. Rep. 366, it appeared that butcher's meat, conspired with each other, the foreman of the railway company, with and with a butcher, not to sell to the petiout any purpose of advancing its interests, tioner for cash live animals or slaughtered threatened to discharge its servants if they meat for the prosecution of his business, and continued to trade with plaintiff, who was that in pursuance of this conspiracy they conducting a grocery store near the stables refused to sell him, although offered their and buildings of the company, in New Or- own price in money, by reason of which unleans, and by this order caused injury to the lawful combination and malicious interferplaintiff. This conduct was held unjustifi-ence the petitioner was compelled to close able and therefore actionable.

his business, and so had been damaged. Tenn.)

HUTTON V. WATTERS

137

80 Tex. 400, 16 S. W. 111. But when the customers by show of violence (Tarleton v. Mccase came on for trial on the issues made, it Gawley, Peak, N. P. C. 270); the obstruction appeared that the refusal was based on the | (Clifford v. Brandon, 2 Camp. 358; Gregory v.

of actors on the stage by preconcerted hissing fact that the petitioner was indebted to the Brunswick, 6 Man. & G. 205); the disturbance defendants, and they had refused to sell him of wild fowl in decoys by the firing of guns because, he being insolvent, they deemed it (Carrington v. Taylor, 11 East, 571, and Keeble prudent to have no further dealings with ing or threatening servants or workmen (Ĝar

v. Hickeringill, 11 East, , .); the impedhim until he had paid them what was due ret v. Taylor, Cro. Jac. 567); the inducing them. There were verdict and judgment in persons under personal contracts to break their favor of the defendants, and on appeal the contracts (Bowen v. Hall, 6 Q. B. D. 333;

Lumley V. Gye, 2 E. & B., 216)—all are injudgment of the trial court was sustained, stances of such' forbidden acts.” the court holding that the reason assigned and proven justified the act complained of.

Applying the principles stated to the case

before us, we are of the opinion that the de6 Tex. Civ. App. 11, 25 S. W. 50.

They But in Dunshee v. Standard Oil Co., 152 fendants acted without legal excuse. Iowa, 623, 132 N. W. 371, 36 L. R. A. (N. S.) were not justified by plaintiff's refusal to 263, it was held that the principle of reason- dismiss her boarder, James Wilson, nor by

her refusal to arrange her rates according able self-protection, or self-advancement, did

to the directions of the defendant Watters. not justify the action taken. There it appeared that the defendant, a wholesaler,

If the prices charged were pleasing to her when its customer in a particular city be patrons, no other person had any right to gan to purchase a portion of his stock from complain. No such defense appears as that a rival concern, entered into a retail busi- set out in Gott v. Berea College, supra, based ness solely for the purpose of driving him on the welfare of the students, or the right out of business, and when this had been ac- of the college to make rules for their con

trol. complished ceased its said retail business. It was held that these facts made out a case Railroad, 13 Lea (81 Tenn.) 507, 49 Am. Rep.

We are referred to the case of Payne v. for damages. So, the case of Tuttle v. Buck, 107 Minn. 666, as an authority in opposition to the

views herein stated. While that case was 145, 119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446, 16 Ann. Cas. 807. Here ably reasoned by the learned special judge it appeared that the plaintiff, a barber, had who wrote the majority opinion, and is not for several years carried on a profitable busi- without support in the authorities, we are ness, and that the defendant, a wealthy constrained to hold that it was erroneously

decided. We are better satisfied with the banker, possessed of great influence, set up

dissenting opinion. It is certain that the an opposition shop, solely for the purpose of injuring the plaintiff, and without profit prevailing opinion in that case is out of harto himself, employing and paying barbers mony with the great weight of authority to conduct such opposition business, whereby as now understood. Moreover, we have long plaintiff's business was ruined. It was held been dissatisfied with that opinion, believing that these facts made a case for relief. The that it was fundamentally wrong. The real court said:

question was not, as assumed in that opin"To divert to one's self the customers of a ion, whether a master had the right to disbusiness rival by the offer of goods at lower charge his servants without liability to acprices is in general a legitimate mode of sery- count to a third party for his reasons, good ing one's own interest, and justifiable as fair or bad, but it was whether the defendant had competition. But when a man starts an opposition place of business, not for the sake of prof. the right to injure the business of the plainit to himself, but regardless of loss to himself, tiff without any purpose to effect an advanand for the sole purpose of driving his competi- tage or benefit to itself. The plaintiff in that tor out of business, and with the intention of case could not lawfully question defendant's

the his malevolent purpose, he is guilty of a wan- authority over its servants, but he could queston and an actionable tort."

tion the defendant's exercise of that auTo the same effect is Boggs v. Duncan-thority solely for the purpose of destroying Schell Furniture Co., 163 Iowa, 106, 143 N. his business, the infliction of an injury on W. 482, L. R. A. 1915B, 1196, quoting and his business without legal justification, and approving Tuttle v. Buck.

hence an act malicious in law. The illegal acts excluded by general ref

It was said in that opinion that the act erence in the excerpt we have made from was not malicious in law, because although Mogul S. S. Co. v. McGregor, supra, are thus it inflicted a wrong on the plaintiff such particularized by the Lord Justice in an wrong was not a legal wrong, but only a earlier part of his opinion:

moral wrong, therefore, not an unlawful act. "No man, whether trader or not, can, however, That position assumed the whole matter in 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 countability to no one save the servants violation of individual rights, contractual or other, assuming always that there is no just themselves for breach of contract, with the business of another by threats made against ser, I freely concede. But here is a use of his those servants. It is said, if the master legal right to discharge employés, for the direct had the right to discharge his servants, he purpose and with no other, and for no other

reason except to prevent their trading with a necessarily had the right to threaten to dis- party legitimately entitled by his location and charge them. The conclusion does not logi- the character of his business to such trade. cally follow. He had no right to condition Here is the use of a legal right, to deprive the his threat, or the execution of his threat, on the property he has in the good will of his

other of that which is his legal right, to wit, an injury to be inflicted, under his orders, business, which consists in his business charby the servants on the personal business of acter for integrity and fair dealing, his convenianother. The defendant could not lawfully of goods he sells, and fairness of price for which

ence of location to his customers, the character threaten to discharge his servants if they they are sold, and the like. All these make up should fail to assault and beat the plaintiff. as elernents of that property now well recognized Why? Because to assault and beat one who in our law as the good will of a business. For is doing no harm is unlawful. So, it is un

a party who has the power, to use that power,

So, it is un- to destroy or injure the value of this property, lawful to interfere with another's business in the exercise of the right, not for any reason without a good excuse. The means cannot of advantage to himself, but solely to injure justify the act, or turn a wrong into a right. another, ought not to be permitted by an en

lightened system of jurisprudence in this counThe opinion referred to is based on the hy- try. pothesis 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 rule we have maintained, the party may al

ways show by way of defense that he has had a 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-employé for good cause, or without any reason

assigned if the contract justifies it, but only that 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 “Such conduct is not justifiable in morals, of the contract, to the end that he may en- and ought not to be in law, and when the injury slave the will of the person who has con- is done as averred in this case, the party should tracted with him, he does wrong, and if in- interfere with any proper use of the legal

respond in damages. The principle will not jury to another occurs thereby, he does a rights of the employer, an improper and inlegal wrong, and cannot shelter himself be-jurious use is all it forbids." 13 Lea (81 Tenn.) hind the contract which he has diverted from 541, 542, 49 Am. Rep. 666. its purposes, and so prostituted.

All of the foregoing excerpt is in accord It is said in the opinion we are criticizing with the views now held by the court (inthat a man has the legal right to buy where cluding as matter of justification acts for he chooses and to sell to whom he will. This

the lawful advancement of the master's own is true; but we think the point had no fitting interest), and in harmony with the best judipart in the solution of the question then be cial thought of the present time, and in our fore the court. The right of a man to dis-judgment should have controlled the decision pose of his own custom does not include the of the cause. power, in law, to influence or control the cus

We overrule Payne v. Railroad Co., in so tom of other people to the injury or destruc- far as it is in confiict with the present opintion of the business of third parties. Such ion. influence one can lawfully exercise only when

The judgment of the Court of Civil Apit is used for the building up of his own peals in the case before us, reversing that of business or the advancement of his own law- the trial court, must, on the grounds herein ful interests. The true theory of the matter stated, be affirmed, and the cause remanded was fully discerned by Mr. Justice Freeman, for issue and trial. and expressed by him in his masterly dissenting opinion filed in the cause in these words:

AMERICAN ZINC CO. V. GRAHAM. "The rule I have maintained is in strict accord with a maxim of the law, so well found (Supreme Court of Tennessee. Oct. 2, 1915.) ed in reason as to need no argument or author- 1. MASTER AND SERVANT Om 118-SAFE PLACE 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 is not to do wrong to the legal rights of anoth- that there shall be certain structures inside Tenn.)

AMERICAN ZINC CO. V. GRAHAM

139

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 protheir work.

[Ed. Note. For other cases, see Master and tected in any manner, but was in the state Servant, Cent. Dig. 88 177, 202, 209; Dec, Dig. left by the excavation. The Acts of 1903, 118.]

c. 237, § 28, requires that certain protections 2. MASTER AND SERVANT Omw204-SAFE PLACE shall be furnished for the security of emTO WORK — MINES — STATUTE - CONTRIBU

ployés. One of these is that the bucket TORY NEGLIGENCE.

In such case a servant, knowing that the shall be covered; another is that there shall master had failed to comply with the statute be certain structures inside the shaft to requiring certain structures inside the shaft make safe the ascent and descent of the emto make it safe for employés going up and down, did not assume the risk; and the fact that the ployés. None of these requirements were statute fixed a penalty for its violation did not complied with. The reason assigned by the exclude his action for damages.

company is that they wanted first to make [Ed. Note. For other cases, see Master and the air connection complete and that they Servant, Cent. Dig. 88 544-546; Dec. Dig. Em could not do both at once. It is also in204.] 3. MASTER AND SERVANT Omw 118– MASTER'S

sisted that the mine was not complete, and NEGLIGENCE-VIOLATION OF STATUTE.

that the statute did not apply to an incomA master's violation of the terms of a stat- plete mine. The plaintiff in error, while ute requiring structures to secure safety in being drawn up through this shaft, was conmine shafts was negligence per se, and made him responsible for all injury suffered as a siderably injured by striking against the direct consequence thereof.

walls caused by the swinging of the bucket. [Ed. Note. For other cases, see Master & Serv- [1] The first question to be determined is ant, Cent.Dig. 88 177, 202, 209; Dec.Dig. Om118.] whether this statute applies to a mine in

Certiorari to Court of Civil Appeals. complete in the respects herein stated. We

Action by D. F. Graham against the Ameri- are clearly of the opinion that it does. There can Zinc Company. From a judgment of is the same reason for protecting the miners the Court of Civil Appeals, affirming a judg- going up and down the shaft in an incomment of the circuit court for Knox county plete mine as in one that is complete. The for plaintiff, the defendant brings certiorari. shaft itself was complete, except the buildAffirmed.

ing of the structures therein which the statPickle, Turner & Kennerly, of Knoxville, ute requires. This shaft had been put down for plaintiff. Cornick, Frantz, McConnell & some weeks, and, as already stated, the Seymour, of Knoxville, for defendant.

miners were then engaged in running a cross

entry or drift from the foot of it. Of course, NEIL, C. J. Graham sued the zinc com- they had to go down this shaft in getting to pany to recover damages for an injury re their place of work on the drift, and at night ceived by him while being drawn up a mine had to be transported up the shaft to their shaft belonging to the company. He recoy- homes. There was as much need to them of ered a judgment in the circuit court of Knox this protection as there ever could be. county for $500, and on appeal to the Court [2] The second inquiry is whether the of Civil Appeals that judgment was sus- miner assumed the risk of the situation, tained. The case was then brought here by knowing, as he did, that the plaintiff in error the writ of certiorari.

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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