prived him of the patronage [535] of its employees 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.

In Graham v. St. Charles St. R. Co. 47 La. Ann. 214, 16 So. 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.

In Wesley v. Native Lumber Co. 97 Miss. 814, 53 So. 346, Ann. Cas. 1912D 706, it 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 employees who should deal with him. To the same effect is Globe, etc. F. Ins. Co. v. Firemen's Fund Ins. Co. 97 Miss. 148, 52 So. 454, 29 L.R.A. (N.S.) 869.

In Ertz v. Produce Exch. 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 [536] 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 Robinson v. Texas Pine Land Assoc. (Tex.) 40 S. W. $43, that an employer who issued store checks redeemable in merchandise was not liable to an action by another storekeeper for threatening to discharge its employees 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 employees; 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-Hodge Lumber Co. 121 La. 658, 46 So. 685. The defendant was the employer of a large number of people, and in connection with its business carried on a general mercantile stere for the purpose of selling goods to its employees and others. It notified its employees that if they bought goods of the plaintiff they would be discharged. The court held

that defendant's act was justifiable as means of safe-guarding its own interests.

An interesting case is Delz v. Winfree. The controversy was first presented on a petition stating, in substance, that the defen lants, members of two different firms engaged in buying and slaughtering live animals fit to be slaughtered and sold as fresh butcher's meat, [537] 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. This was held to state a cause of action. 80 Tex 400, 16 S. W. 111, 26 Am. St. Rep. 755. 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 Ia. 23, 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 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 [538] 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 Ia. 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 Steamship Co. v. McGregor, supra, are thus particularized by the Lord Justice in an earlier part of his opinion:

[539] "No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden. So is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it. The intentional driving away of customers by show of violence (Tarleton v. M'Gawley, Peak N. P. (ed. 1795) (Eng.) 205); the obstruction of actors on the stage by preconcerted hissing (Clifford v. Brandon, 2 Campb. (Eng.) 358; Gregory v. Brunswick, 6 M. & G. 205, 46 E. C. L. 205); the disturbance of wild fowl in decoys by the firing of guns (Carrington v. Taylor, 11 East (Eng.) 571, and Keeble v. Hickeringill, 11 East (Eng.) 574, note); the impeding or threatening servants or workmen (Garret v. Taylor, Cro. Jac. (Eng.) 567); the inducing persons under personal contracts to break their contracts (Bowen v. Hall, 6 Q. B. D. (Eng.) 333; Lumley v. Gye, 2 El. & Bl. 216, 75 E. C. L. 216)—all are instances of such forbidden acts."

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

[540] We are referred to the case of Payne v. Western, etc. R. Co. 13 Lea (Tenn.) 507, 49 Am. Rep. 666, as an authority in opposition to the 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. The real 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 justifica. tion, 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 controversy. [541] We think the learned special judge confounded the right of a master to discharge his servants subject to legal accountability to no one save the servants themselves for breach of contract, with the supposed right to interfere with the lawful 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 metamorphosis, if that means to be the exercise of the power which the master has over his servants through their fear of losing their places, and hence their means of livelihood, and no violence be done. It cannot be that a master has power, within the law, to direct his servants where to buy for themselves, or where not to buy, when no rightful good to himself can be effected through such direction. That would be to sanction tyranny, the enslavement of servants, and the subversion of the law itself. The law wills freedom, save [542]

where a man is bound by its own behests, or has, through contract, submitted his duty to the will of another. Where one employs the power which the law gives him 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.

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 before 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:

"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 right, as not to do wrong to the legal rights of [543] another, I freely concede. But here is a use of his legal right to discharge employees, 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 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 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 argued that a man ought to have the right to say where his employees 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 reason for what he has done; that the trader was unworthy of patronage; that he debauched the employee, or sold, for instance, unsound food, or any other cause, [544] that affected his employee's 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 employee 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 a threat over the employee in terrorem to fetter the freedom of the employee, 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." Payne v. Western, etc. R. Co. 13 Lea (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. Western, etc. R. Co. in so far as it is in conflict with the present opinion.

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.

NOTE.

Act Lawful in Itself Not Rendered Unlawful by Malicious Motive.

The earlier cases discussing the effect of a malicious intent on an act inherently lawful are collected in the note to Westley v. Native Lumber Co. Ann. Cas. 1912D 796. This note reviews the recent cases on that point.

Several recent cases have maintained the view that an act which is in itself lawful and infringes no legal right of another is not actionable though it is performed with malicious intent and results in actual damage. Thus in Vitagraph Co. of America v. Swaab, 248 Pa. St. 478, Ann. Cas. 1916B, in discuss

ing an alleged wrongful prosecution of an action of replevin, it was said: "The general principle is that where a plaintiff has a legal right to a particular remedy it matters not what motives may induce him to assert it." So in Prospect Park, etc. R. Co. v. Morley, 155 App. Div. 347, 140 N. Y. S. 380, the court in refusing to enjoin the prosecution of certain actions said: "But appellants assert in their complaint that defendants have conspired to do injury to the plaintiffs, and that the suits brought by them are fraudulent in character, and that therefore the prosecution of such actions should be enjoined. But no action for a conspiracy lies when two or more persons conspire to do a lawful act in a lawful manner and cause damage thereby, even though they may have acted with a malicious motive." In Buck v. Latham, 110 Minn. 523, 126 N. W. 278, the Minnesota Court, which had held in an earlier case (sce Tuttle v. Buck, 16 Ann. Cas. 807) that a malicious intent might render actionable an act otherwise lawful, declared that the principle of that case did not warrant recovery on proof that a person with malicious intent prosecuted to judgment a valid claim against another. The court said: "It is apparent upon the face of the counterclaim that the plaintiff had a perfect legal right to do that which he is charged with doing, which was simply this: He bought a past-due negotiable promissory note, paying full value therefor, and brought this action against the defendant to recover the amount due on the note, which the defendant might have paid at any time and avoided the suit. He admits that he had no defense to the note, and that the plaintiff was entitled to the amount claimed. The plaintiff is charged with doing no other act. It is not alleged that the plaintiff has in any manner interfered with or sacrificed the defendant's property, or impaired his financial credit. the contrary the sole basis for the recovery from the plaintiff of damages in the sum of ten thousand dollars is that his unexecuted purpose in doing the lawful acts that he did do was malicious. The briefs of the respective parties ably discuss the question as to when, if ever, a malicious motive will convert into an actionable tort an act which otherwise would be both legal and proper. We do not discuss the question, for manifestly upon both principle and authority it must be held that the pleading here under consideration does not allege facts constituting a cause of action against the plaintiff, for it shows that he exercised a legal right in a lawful way, with no invasion of the defendant's personal or property rights."

On

The view that an act inherently lawful may become actionable if it is done with a malicious intent to injure another finds support in

the reported case. So, in Boggs v. DuncanSchell Furniture Co. 163 Ia. 106, 143 N. W. 482, L.R.A.1915B 1196, a recovery was sustained against a person who, having lost the selling agency for certain sewing machines, issued certain misleading advertisements of second hand machines, not for the purpose of legitimate competition in trade but to injure his successor in the agency in question. The court said: "While a person has the right to pursue his avocations and his business for his own pleasure and profit, he has no right, directly or indirectly, to wilfully and maliciously injure another in his lawful business or occupation. Men have the right to engage in lawful competition, and, though the competition may have the effect of driving another out of business, if the competition is lawful, no action arises, though injury resulted from the competition. Where there is lawful competition for gain, for supremacy in business, for the legitimate control of business, even though the purpose and effect of the competition is to drive from business competitors, yet, if the competition is lawful and carried on in a lawful way, no action will lie. There is a difference between lawful competition and simulated competition carried on with the sole purpose and intent, not of profit and gain, but of maliciously injuring others engaged in that particular business. The case before us does not present a case of lawful competition, but a case of simulated or pretended competition, designed and carried out with malice for the purpose of injury to the plaintiff in his business.

Every man has the legal right to advance himself before his fellows, and to build up his own business enterprises, and use all lawful means to that end, although in the path of his impetuous movements he leaves strewn the victims of his great industry, energy, skill, prowess, or foresight. But the law will not permit him to wear the garb of honor only to destroy. The law will not permit him to masquerade in the guise of honest competition solely for the purpose of injuring his neighbor. The law will not permit him to simulate that which is right for the sole purpose of protecting himself in the doing of that which is palpably wrong. It is said that a man cannot be called to answer for doing that which he has a right to do, no matter what the effect of the doing may have upon others, and no evil motive can make an act wrong, the doing of which is within the rights granted by law. But the question still stands, Is he within his legal right when he simulates honest competition, not to advance himself or his own interests, but for the sole purpose of inflicting injury upon his neighbors? It is said the law deals only with externals; but the law ought not to be blinded by the lion's skin. It may be

that expressed malice in the doing does not, of itself, make the wrong; but malice is implied in the very act of doing, and therefore the act itself wrong." In Virtue v. Creamery Package Mfg. Co. 123 Minn. 17, 142 N. W. 930, L.R.A.1915B 1179, reargument denied, 123 Minn. 45, 142 N. W. 1136, L.R.A. 1915B 1195, it was held that while a patentee may in good faith issue notices warning against a supposed infringement, he is liable in damages if he does so with malicious intent to injure a competitor. That case seems, however, to rest on the rule as to privilege with respect to defamatory publications rather than on the doctrine discussed in this note.

was not by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspec tion, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully conceded it. The case, in other words, is not brought within the rule rule of Kuelling v. Roderick Lean Mfg. Co. 183 N. Y. 78, 5 Ann. Cas. 124, 75 N. E. 1098, 111 Am. St. Rep. 691, 2 L.R.A.(N.S.) 303. The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. "The defendant's negligence," it was said, "put human life in imminent danger." A poison falsely labeled is likely to injure any one who gets

it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the

principle itself. The chief cases are well known, yet to recall [386] some of them will be helpful. Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513, is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638, the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shear