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In some of the cases previously considered the defendant influences the conduct of only one person. The only means or lever used to influence that person is a threat as to the future conduct of the defendant himself, a threat of loss which would result to that person from the conduct of the defendant alone.

In Case 12 the defendant influences the conduct of two other persons, one of whom is an entire stranger to the controversy; and he uses the second to influence the first. If he can do this, then he can influence a third person to influence the second; or inAuence an indefinite number in succession to influence each other in turn. He can drag the whole community into his dispute.1

Case 13. A employs a non-unionist carpenter, B, whom he hires by the day. He refuses to drop B at the request of the unionists. A owns a tenement house, occupied by C, a tenant at will. D, a baker, is in the habit of selling bread to C. The unionists notify D that they will call out his unionist journeymen bakers, and will cease to buy bread of him, unless he (D) notifies C that he shall cease to sell C bread so long as C occupies a tenement of A's. D gives such notice to C, and C, in consequence, moves out of A's house. The unionists also give public notice that, if A does not drop B, they not only will refuse to work for A, but will not work for, or buy from, any one who has any dealings of any kind with A, nor have

1 Mr. Mitchell apparently believes in the legality of the “secondary boycott," though deploring "that the boycott occasionally is used tyrannously and unfairly, and not infrequently is carried too far.”

His views are in part as follows:

“ To boycott a street railway which overworks its employees and pays starvation wages is one thing; to boycott merchants who ride in the cars of the company is another thing, and to boycott people who patronize the stores of the merchants who ride in boycotted cars is still another and a very different thing. As general rule, the further the boycott is removed from the original offender, the less effective it becomes. It should be the aim of the union to seek, and not to force, the alliance of the public, and to render the boycott as direct and personal as possible. There are many cases, however, where a secondary boycott is absolutely necessary. When a union is engaged in a contest with a newspaper, especially, as is usually the case, with a newspaper not largely read by the working classes, a secondary boycott is far more effective than a direct boycott. A newspaper can better do without a few hundred two-cent subscribers than without a few thousand-dollar advertisements; and a man who continues to pay large sums in advertising to a newspaper that is maltreating its employees may not unfairly be considered the ally of the journal, and as aiding and abetting it in its contest with labor. Especial care, however, should be used in the laying of a secondary boycott.” Mitchell, Organized Labor, 289–290.

The successful working of Mr. Mitchell's scheme of boycotting a newspaper, by threatening to withdraw business patronage from merchants who advertise in it, has been held actionable. Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135; Barr v. Essex Trades Council, 53 N. J. Eq. 101 ; Matthews v. Shankland, 56 N. Y. Supp. 123. (7.44 Am. L. Reg. (N. s.) 489, 490.

any dealings with any one who deals with any person who has any dealings with A.

The result is that A is cut off from all business dealings, cannot induce any one to sell him provisions, and suffers the pangs of starvation, as the unionists intended that he should. A sues the union officials.

This is an application of the principle of some of the preceding cases carried out to an extreme. Such methods clearly exceed the legitimate bounds of competition or of economic warfare. It is impossible to justify them by the analogy of the Mogul and Glasgow cases.

The remaining question is: Whether bad motive operates as a rebuttal of an otherwise sufficient justification?

Will “a primâ facie justification” on the ground of competition (defense of one's own interest) be rebutted by proof of bad motive on the defendant's part? Is an act "apparently within the domain of competition ” unjustifiable if the actor's ultimate motive was, not to benefit himself, but to gratify a personal grudge against the plaintiff?

In discussing this question the terms “motive" and "intent" are used in the significations previously indicated on pages 256 and 259, ante. Intent is used to denote the immediate object aimed at by the doer of an act, the immediate result desired by the actor. Motive is used, not to signify the object or result immediately aimed at, but to denote the reason for aiming at that object; not to indicate the result immediately desired, but the cause for entertaining that desire, the feeling which makes the actor desire to attain that result. And we here restate ? two propositions: (1) Bad motive is not generally a requisite element in making out a primâ facie tort;3 (2) Good motive does not alone

1 For examples of " secondary boycotts,” see Report of Anthracite Coal Strike Commission, 77. See also statement of general objections to “what is popularly known as the boycott.” Ibid., 76–78.

2 From p. 259, ante.

3 That an act otherwise lawful does not become actionable by proceeding from a bad motive is a proposition strongly sustained by the opinions of several of the Law Lords in Allen v. Flood, [1898] A. C. 1. See also Lord Lindley, in Quinn v. Leathem, (1901) A. C. 495, 533.

For a view giving more effect to bad motive, see the elaborate discussion by Prof. Ames in 18 Harv. L. REV. 411 : “How far an Act may be a Tort because of the Wrongful Motive of the Actor."

See Prof. Lewis, in 5 Colum. L. Rev. 107–123; and of the majority opinion in Plant

a

and of itself constitute a justification for the intentional infliction of harm.

To consider now the effect of defendant's bad motive as a rebuttal of his justification:

First: It is obvious that the question cannot arise where there is no justification made out, and hence there is nothing for the plaintiff to rebut. The inquiry whether bad motive on the defendant's part does or does not exist is immaterial if we have

case where there is a primâ facie cause of action and the defendant has not shown an apparently sufficient justification. The plaintiff, having already made out a primâ facie cause of action, has no occasion to strengthen his case by proving bad motive (unless he claims exemplary damages). Nor can the defendant justify himself by simply proving good motive. Whatever else may be a justification, absence of bad motive per se is not. In some cases where the court or counsel have laid stress on bad motive, we think it will be found that the true ratio decidendi consists in the absence of justifying circumstances rather than in the presence of bad motive.1

Second: Bad motive, in the true sense, seldom exists in this class of cases; i. e., as between persons who are, to outward appearance, competitors in trade or labor disputes. The existence of bad motive may sometimes be admitted by filing a demurrer to a declaration; but if the defendant had traversed, instead of demurring, the plaintiff would hardly ever have been able to prove the alleged bad motive. Again it may sometimes be claimed that the existence of bad motive has been found as a fact by the jury; either by necessary implication from a general verdict or by specific findings. But in most of these cases the jury were acting

v. Woods, 176 Mass. 492. The subject of controversy is stated by some judges in a question-begging form. It is stated very clearly by Hammond, J., in 176 Mass., at 499 500.

As to the reason for the acknowledged materiality of motive as a requisite to an action for malicious prosecution, see the explanation of Lord Herschell, in Allen v. Flood, at 125, 126; and cf. Lord Watson, at 93.

1 See, for instance, Webb v. Drake, 52 La. Ann. 290; Graham v. St. Charles St. Ry. Co., 47 La. Ann. 214, 1657. Cf. Ertz v. Produce Exchange Co., 79 Minn. 140, where the complaint demurred to “ does not show that the defendants had any legitimate interest to protect.”

Of course, cases which regard bad motive as an element in making out a prima facie tort may fairly be cited to support the doctrine that a primâ facie justification may be rebutted by proof of bad motive. But this precise question was not before the court in the cases where the court held, or a demurrer admitted, that there was no justification. See Plant v. Woods, 176 Mass. 492, and Moran v. Dunphy, 177 Mass. 485.

under instructions which did not properly discriminate between motive and intent. The defendant frequently intends immediate harm to the plaintiff, but generally as a means of attaining the end of benefiting himself. In ninety-nine labor cases out of a hundred the defendant's motive (or, in other words, his ultimate intent) is to promote his own advantage. “As a rule, the ultimate object of a labor union in excluding an employee from work by pressure upon the employer, or in injuring the business of an employer by the persuasive or coercive boycott, is not the damage to their victim, but the advancement of the cause of labor. This motive, of course, is commendable. In the great majority of labor cases, therefore, the question whether the members of a labor union are guilty of a tort is a question, not of motive, but of the legal validity of the means adopted for effectuating their motive; and this question must be answered by a careful weighing of considerations of public policy.”1

The question, then, whether, in a case of apparent self-interest, proof of bad motive will destroy an otherwise good justification, is generally speculative rather than practical.

Third: Assuming, however, that the existence of bad motive, though extremely rare, is not an absolute impossibility, what effect shall be given to it? Shall the plaintiff be permitted by the court to prove the existence of bad motive in order to overthrow an otherwise sufficient justification, grounded on self-interest?

It is obvious that permitting the plaintiff to raise this issue would very materially diminish the value of defendant's right of selfdefense, his right to justify on the ground of self-interest. The allegation of bad motive is easily made, and the contention would prolong litigation and, if tried, might involve great expense.

It will be urged that conduct actuated by wrong motive deserves no protection and ought always to be subject to a civil remedy. This mode of stating the question assumes the existence of the wrong motive. If by any process of demonstration, free from the defects of human judgment, the existence of the bad motive could be established beyond all doubt, there might be more ground for contending that the law should give damages to the plaintiff. But this is not the state of things under which this question of law has to be determined. Whether the motive was in fact bad is, and

1 Prof. Ames, in 18 Harv. L. REV. 418, n. 3. Cf. Judge Holmes, in 8 Harv. L REV. 8.

always will be, an open question, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is whether it is proper on grounds of public policy to remit such a question to the judgment of a jury.

If the issue of bad motive can be thus raised in labor conflicts, it must also be allowed in cases of ordinary trade competition, a very wide field. We think that the rarely occurring punishment of a personal enemy, who has masked his hostility under the guise of competition, would not offset the harm caused honest competitors by their being compelled to litigate the question of the fairness of their motives whenever assailed by a disappointed rival.

Leaving out of view the instances of absolute privilege in defamation, there are opposing analogies (neither of them perfect) on which each side respectively will rely.

On the one hand, conditional privilege in defamation cases may be rebutted by showing that defendant acted from a wrong motive. This analogy is relied on by Sir William Erle as to labor conflicts, but seems to be deemed inapplicable by Lord Herschell.3 The law of defamation is “a law of absolute responsibility qualified by absolute exceptions." 4

On the other hand, ordinary user of real estate does not, by the weight of English and American authority, make the owner liable, even though he is actuated by the motive of personal ill will to the plaintiff.

We prefer to adopt the view that a defendant has, in this respect, the same immunity in exercising his right to work or to trade that he has in exercising his right to make use of his land. Neither of the rights is absolute, being limited by the correlative rights of others. But neither of them depends on the motive which induced their exercise.

If a defendant, in the alleged exercise of his right to use his land,

1 These views are, in large part, reproduction of the language used by Lord Penzance in reference to another topic. See Dawkins v. Lord Rokeby, L. R. 7 H. L. 744, 755, 756. Cf. 2 Stephen, Hist. Crim. Law, 121.

? Erle, Trade Unions, 23. 3 See Lord Herschell in Allen v. Flood, (1898) A. C. I, 125, 126; Lord Watson,

at 93

4 Pollock, Torts, 7 ed., 542, n. x.

6 For French and German law to the contrary, see 2 Journal of Society of Comparative Legislation (N. s.) 453, 454, 460 ; Prof. Ames' pote in i Ames & Smith, Cas. on Torts, 750, n. 1; German Civil Code, $ 226.

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