840. GARRET v. TAYLOR

KING'S BENCH. 1621

Cro. Jac. 567

[Printed ante, as No. 130, Vol. I.]

841. KEEBLE v. HICKERINGILL. (1706. 11 East, 574, note.) [The plaintiff recovered damages from the defendant for firing guns on his own land, which frightened wild ducks away from the decoy pond of the plaintiff, where the latter was capturing them to sell for gain.] HOLT, C. J. Where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases. But if a man doth him damage by using the same employment,-as, if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff's, and that had spoiled the custom of the plaintiff, -no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 Hen. IV, p. 47 [supra, No. 839]: one schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new; the action there was held not to lie. But suppose Mr. Hickeringill should lie in the way with his guns, and frighten the boys from going to school and their parents would not let them go thither, sure that schoolmaster might have an action for the loss of his scholars. 29 Edw. III, p. 18. A man hath a market, to which he hath toll for horses sold; a man is bringing his horse to market to sell; a stranger hinders and obstructs him from going thither to the market; an action lies because it imports damage. Action upon the case lies against one that shall by threats frighten away his tenants at will. 9 Hen. VII, pp. 7, 8; 21 Hen. VI, p. 31; 14 Edw. IV, p. 7.

THIS was a special action on the case, against the defendant, for seducing the plaintiff's customers. The plaintiffs were wholesale ironmongers, who carried on a very extensive business. The defendant had been employed by them as their rider or traveler, to get orders in the course of their business; and the foundation of the action was that the defendant, who at the time of bringing the action was in the same line of business with the plaintiffs, had, during the time that he was in their employment, endeavored to seduce the several country shopkeepers who were in the habit of dealing with the plaintiffs to leave off dealing with them, and to transfer their business to the defendant. To prove the plaintiffs' case, they called some of those country shopkeepers. Their evidence proved that the defendant on his last coming to their shops as rider to the plaintiffs, and on their busi

ness, had told them that he was himself going into the same business with the plaintiffs after Christmas, and would then be obliged to them for an order on his own account. It appeared, however, on the crossexamination of those witnesses that he took the orders regularly for the plaintiffs on that journey, and that they were executed on the plaintiffs' account, and that no solicitation was used by the defendant for any order at that time, which might have been supplied by the plaintiffs. It was also admitted that, in fact, the time of the defendant's engagement to serve the plaintiffs expired at the beginning of the year, so that, in truth, in the month of March he would have been completely his own master.

LORD KENYON, C. J. The conduct of the defendant in this case may perhaps be accounted not handsome; but I cannot say that it is contrary to law. The relation in which he stood to the plaintiffs, as their servant, imposed on him a duty which is called of imperfect obligation, but not such as can enable the plaintiffs to maintain an action. A servant while engaged in the service of his master has no right to do any act which may injure his trade or undermine his business; but every one has a right, if he can, to better his situation in the world; and if he does it by means not contrary to law, though the master may be eventually injured, it is damnum abs. injuria. In the present case the defendant did not solicit the present orders of the customers: on the contrary, he took for the plaintiffs all those he could obtain; his request of business for himself was prospective, and for a time when the relation of master and servant between him and the plaintiffs would be at an end.

It was suggested, in the course of the cause, that the defendant had seduced some of the servants of the plaintiffs to quit their service, and to enter into his when he went into business. Upon that point Lord KENYON said that seducing a servant, and enticing him to leave his master while the master by the contract had a right to his services, was certainly actionable, but that to induce a servant to leave his master's service at the expiration of the time for which the servant had hired himself, although the servant had no intention at the time of quitting his master's service, was not the subject of an action. The plaintiffs were nonsuited.

Erskine, Garrow, Gibbs, and Best, for the plaintiffs. Law, Adam, and Maryat, for the defendant.

843. GUNTER v. ASTOR

COMMON PLEAS. 1819

4 J. B. Moore, 12

THIS was an action on the case, brought by the plaintiff, a manufacturer of pianofortes, against the defendants, for having enticed

away his workmen from his manufactory, to go into their service. The declaration charged the defendants with conspiring together to entice away his servants. At the trial of the cause before Lord Chief Justice DALLAS, at Guildhall, at the sittings after the last term, it was proved that one of the defendants had invited the plaintiff's servants to a dinner, where he proposed taking them from the plaintiff at advanced wages, and induced them to sign an agreement to that effect; that the servants were not hired by the plaintiff for a limited or constant period, but worked by the piece; and that they afterwards were employed by the defendants. It was also proved that the plaintiff realized about £800 per annum by the sale of his instruments. His Lordship was of opinion that the plaintiff had fully made out his case, and left it to the jury to ascertain what damages he had sustained by the misconduct of the defendants; and they found a verdict for him for £1600.

Mr. Serjt. Lens now moved for a new trial. . . . He submitted that, as the men worked by the piece, each of them was justified in leaving the plaintiff when he had completed the work he had in hand, and that, in point of fact, the plaintiff could only be entitled to recover damages for the half-day that his workmen accepted the defendant's invitation. ...

Lord Chief Justice DALLAS. I left it to the jury to give damages commensurate with the injury the plaintiff had sustained. The defendants clandestinely sent for his workmen, and, having caused them to be intoxicated, induced them to sign an agreement to leave him and come to them-by which the plaintiff was nearly, if not absolutely ruined.

Mr. Justice RICHARDSON. This was an action for seducing and enticing away the plaintiff's servants. . . He is entitled to recover damages for the loss he sustained by their leaving him at that critical period. It appears, too, that the defendants combined to allure them from his service, and I do not think the Court ought now to infer that two years' profit is too much for the plaintiff to recover.

Rule refused.

844. ALLEN . FLOOD. (1898. House of Lords, App. Cas. 1.) [As recapitulated in LEATHEM v. CRAIG, L. R. Ire., 1899, 2 Q. B. & Ex. Div. 667, on appeal s. v. QUINN v. LEATHEM, House of Lords, 1901, App. Cas. 495, per Lord LINDLEY.] My Lords, the case of Allen v. Flood, 1898, A. C. 1, has so important a bearing on the present appeal that it is necessary to ascertain exactly what this House really decided in that celebrated case.

It was an action by two workmen of an iron company against three members of a trade union, namely, Allen and two others, for maliciously, wrongfully, and with intent to injure the plaintiffs, procuring and inducing the iron company to discharge the plaintiffs. The action was tried before Kennedy, J., who ruled that there was no evidence to go to the jury of conspiracy, intimi

[1895] 2 Q. B. 22, 23; [1898] A. C. 3.

dation, coercion, or breach of contract. The result of the trial was that the plaintiffs obtained a verdict and judgment against Allen alone. He appealed, and the only question which this House had to determine was whether what he had done entitled the plaintiffs to maintain, their action against him. What the jury found that he had done was that he had maliciously induced the employers of the plaintiffs to discharge them, whereby the plaintiffs suffered damage. Different views were taken by the noble Lords who heard the appeal as to Allen's authority to call out the members of the union, and also as to the means used by Allen to induce the employers of the plaintiffs to discharge them; but, in the opinion of the noble Lords who formed the majority of your Lordships' House, all that Allen did was to inform the employers of the plaintiffs that most of their workmen would leave them if they did not discharge the plaintiffs. There, being no question of conspiracy, intimidation, coercion, or breach of contract, for consideration by the House, and the majority of their Lordships having come to the conclusion that Allen had done no more than I have stated, the majority of the noble Lords held that the action against Allen would not lie; that he had infringed no right of the plaintiffs; that he had done nothing which he had no legal right to do; and that the fact that he had acted maliciously and with intent to injure the plaintiffs did not, without more, entitle the plaintiffs to maintain the action.

My Lords, this decision, as I understand it, establishes two propositions: one a far-reaching and extremely important proposition of law; and the other a comparatively unimportant proposition of mixed law and fact, useful as a guide, but of a very different character from the first.

The first and important proposition is that an act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in Allen v. Flood (1898), A. C. 1; it had been gaining ground for some time, but it was never before so fully and authoritatively expounded as in that case. In applying this proposition, care, however, must be taken to bear in mind that, even in considering a person's liability to civil proceedings, the proposition in question only applies to "acts otherwise lawful"; i.e., to acts involving no breach of duty, or, in other words, no wrong to any one.

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The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. . . . If their [the majority's] view of the facts was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoidable. . . . My Lords, the questions whether Allen had more power over the men than some of their Lordships thought, and whether Allen did more than they thought, are mere questions of fact. Neither of these questions is a question of law.

1[1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147–150, Lord Macnaghten; pp. 161, 165, Lord Shand; p. 175, Lord Davey; p. 178, Lord James.

845. PAYNE v. WESTERN & ATLANTIC RAILROAD

COMPANY

SUPREME COURT OF TENNESSEE. 1884

13 Lea 507

APPEAL in error from the Circuit Court of Hamilton County. D. C. TREWHITT, J.

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The question in this case is as to the sufficiency of the declaration. The circuit judge sustained the demurrer and dismissed the suit. The referees recommended reversal of the judgment. The suit is against a railroad company and its general agent, and the declaration of plaintiff is as follows: That, on the 16th day of February, 1883, and for many years previous thereto and continually since, plaintiff has been engaged in business as a merchant in Chattanooga, Tennessee, and operating a store on Market Street at and near the depot, car-shed, railroad track and yard of the defendant, the Western & Atlantic Railroad Company. . . . The defendant, the Western & Atlantic Railroad Company, is a large and wealthy corporation, operating and controlling a line of railroad leading from Chattanooga, Tennessee, to Atlanta, Georgia. That said corporation employs a very large number of hands both in and out of Chattanooga. Plaintiff had built up and was enjoying, on the day and year aforesaid, a large, extensive, and profitable business with the employees of all the aforesaid railroads. . . . The defendant, J. C. Anderson, is the general agent of the defendant railroad company at Chattanooga, having in charge and controlling the employees. . . . The said defendants, on the day and year aforesaid, did make, publish, and circulate the following scandalous and injurious order, threat, command, and paper writing, to wit: "February 16, 1883. J. T. Robinson, Y. M.-Any employee of this company on Chattanooga pay-roll who trades with L. Payne from this date will be discharged. Notify all in your department. J. C. Anderson, Agent." . . . Plaintiff further declares that, by reason of said order and command and other means used by defendants, he was brought into reproach, disrepute, suspicion, and distrust, and his business broken up and ruined. The employees of the defendant railroad company, deterred and intimidated by the threat contained in said illegal command and order, quit trading with plaintiff.

Elder & White, for Payne. Cooke & Cooke, for Railroad Company. INGERSOLL, Sp. J. [after stating the case as above]. . . . The full scope of the plaintiff's argument is: "The declaration sets up that plaintiff was pursuing a lawful business,—that of a merchant; and that defendants, out of malice and ill-will toward him, entered into an unlawful confederation and conspiracy to break him up. . . . When a

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