the question already considered at length, whether a strike discharge of a person employed as shoemaker. The act was regarded as unjustifiable, whether regarded as an incident of competition among employees or of competition between employers and employees. The court said: "The gain which a labor union may expect to derive from inducing others to join it is not an improvement to be obtained directly in the conditions under which the men are working, but only added strength for such contests with employers as may arise in the future. An object of this kind is too remote to be considered a benefit in business such as to justify the infliction of intentional injury upon a third person for the purpose of obtaining it." The illegality of such act seems also (as in Curran v. Galen, infra) to have been based on a distinct objection, namely, the tendency to produce an illegal monopoly. See § 54. See discussion of Berry v. Donovan with other decisions in article in 42 Am. Law Rev. 706 (1908) by A. M. Brown. Το similar effect with Berry v. Donovan is Curran v. Galen, 152 N. Y. 33; 46 N. E. 297; 37 L. R. A. 802; 57 Am. St. Rep. 496 (1897), where an action was sustained against members of a labor union, for conspiring to injure the plaintiff by taking away his means of earning a livelihood, and preventing him from obtaining employment, by threatening to procure his discharge, and prevent him from obtaining employment elsewhere, unless he joined the union. Compare People ex rel. Gill v. Smith, 5 N. Y. Crim. R. 509 (N. Y. Co. Oyer & Terminer, 1887), and N. Y. Penal Code, § 168, subd. 5, forbidding the use of force, threats or intimidation "to prevent another from exercising a lawful trade or calling." As admitted by the demurrer, there was (in Curran v. Galen) no "intent or purpose to injure plaintiff in any way," nor does it appear that, otherwise than as above stated, any unlawful means were employed to effect the object. Though not so distinctly stated, the existence of the combination seems to have largely influenced the decision. It was also intimated that there was a violation of the constitutional guaranty of the right freely to pursue a lawful avocation and of freedom in the pursuit of happiness. See also Consolidated Steel & Wire Co. v. Murray, 80 Fed. 811, 823 (C. C. Ohio, 1897). See Curran v. Galen distinguished in National Protective Assoc. v. Cumming, 170 N. Y. 315; 63 N. E. 369; 58 L. R. A. 135; 88 Am. St. Rep. 648 (1902), with which it seems difficult to reconcile it. See § 60. In London Guarantee & Accident Co. v. Horn, 206 Ill. 493; 69 N. E. 526; 99 Am. St. Rep. 185 (1903), where it seems clearly recognized that the existence of the relation of trade competitor would have justified inducing the discharge from employment there under consideration, such relation was held not to exist, and such inducing was consequently held actionable, where it was the act of a person whose motive was to compel the employee to surrender an alleged cause of action, for the satisfaction of which in whole or in part, such party was liable, that is, by virtue of its agreement to indemnify the employer against loss from injury to otherwise legal is illegal if with intent to induce discharge from employment.77 its employees. Such right of action did not depend upon, and was not connected with the continuance of such employment. The court distinguished decisions sustaining the legality of such act of inducing, as "cases where the party who secured the discharge of the employee was in some way in competition with that employee in the business or work in which the employee was then engaged, or was a member of some organization which was in competition with the employee or some organization to which that employee belonged." In Giblan v. National Amalgamated Labourers' Union, 2 K. B. D. (1903) 600, it was held an insufficient justification (see § 60) that the labor union and officers thereof inducing such discharge, desired to compel the discharged employee to pay the arrears of his defalcation as a former member of the union. It was here said by Romer, J., that "considerable difficulty may often arise in particular cases in ascertaining what is a justification"; that "regard must be had to the circumstances of each case as it arises, and it is not practically feasible to give an exhaustive definition of the word to cover all cases." It was also said: "I do not think any excessive practical difficulty would arise in directing a jury on the point in any particular case." But here the learned justice seems to have fallen into the same error as did Lord Esher in Flood v. Jackson, Q. B. (1895) 21, an error that was corrected on ap peal in Allen v. Flood, App. Cas. (1898) 1, 118; see § 11; note in 20 Law Quart. Rev. 2 (1904). As to effect of Trade Disputes Act of 1906, see Conway v. Wade, 2 Q. B. D. 844 (1908). Giblan v. National Amalgamated Labourers' Union was followed in Brennan v. United Hatters of North America, 73 N. J. Law, 729; 65 Atl. 165; 9 L. R. A. N. S. 254; 118 Am. St. Rep. 727 (1906), in sustaining an action against a labor union and members thereof, by a member thereof, for acts "the natural and proximate result" of which "intended and designed by the defendants to ensue, was to interfere with the plaintiff's continued employment in the factory" where he was employed, he being discharged from employment therein, though afterward re-employed. The acts in question included the unwarranted conviction of the plaintiff by the vigilance committee of the union, a sentence that he pay a money fine and give up for one year his position as foreman in the factory, the ratification of this conviction and sentence by the union, and the consequent withdrawal of his membership card from the steward at the factory. In State v. Van Pelt, 136 N. €. 633; 49 S. E. 177; 68 L. R. A. 760 (1904), on an indictment for conspiracy to injure business, held not the use of unlawful means for three persons to go to an employer's place of business and notify him that he could not be considered in sympathy with organized labor unless he 77 See § 60. kept constantly employed union men; or if he kept in his employment non-union men with whom he had a contract of employment; nor, on his refusal to comply, to pub lish a notice to the effect that he had been "declared unfair and so listed, and that no union carpenters would work any material from his shop" after a certain date. CHAPTER X ACTS OF VIOLENCE OR PRODUCING FEAR OF VIOLENCE § 73. Boycott or refusal to deal, as distinguished from incident illegal acts. 74. Acts of violence, as incident to boycott, etc. 75. Acts producing fear of violence, as incident to boycott, etc. 76. Threat or announcement of intention, as incident to boycott, etc. 77. Threat or announcement of intention to boycott. 78. Strike as distinguished from incident acts of violence or acts producing fear of violence. 79. Acts of violence as incident to strike. 80. Acts producing fear of violence, as incident to strike. 81. Threat or announcement of intention, as incident to strike. 82. Strike as induced by acts of violence or acts producing fear of violence, or by announcement of intention to do lawful act. 83. Threat or announcement of intention to strike. 84. Definition of picketing. 85. Picketing whether illegal. 86. Picketing accompanied with acts of violence or producing fear of violence. 87. Picketing accompanied with inducing to refuse to enter or continue in employment. § 73. Boycott or refusal to deal, as distinguished from incident illegal acts.-It has already been suggested that while there appears to be nothing illegal in a boycott apart from acts of violence or producing fear of violence, there has come to rather extensively prevail a contrary doctrine, namely, that a boycott is inherently illegal apart from such acts. It has also been sug 1 Thus, as elsewhere seen, injunctions have been allowed against boycotts, whereas they should have been allowed only against the illegal acts incident to the boycotts. 1 Foster v. Retail Clerks' Protective Assoc., 39 Misc. 48, 59; 78 N. Y. Suppl. 860, 868 (Supm. Ct., Sp. T., 1902), where, though there was held to be no illegality in combining with others, peaceably, by persuasion only, to induce persons upon the street to refuse to deal with the plaintiffs, The distinction between a boycott and an illegal act merely incident thereto is well illustrated in gested that such doctrine is referable not so much to the view that a boycott, as already defined, is illegal, as to the view that it is inseparably connected with acts that are indisputably illegal. And this view is doubtless referable to the circumstance that those engaged in a boycott, as already defined, have so frequently committed such acts by way of incident to the boycott. If, however, a boycott, as already defined, is illegal, a fortiori is it illegal if such acts are incident thereto. It is here proposed to consider the legality of such acts regarded so far as possible, as apart from the boycott. The absence of necessary connection between the boycott and such incident acts may easily be shown by illustration. An employee, being engaged in a controversy with his employer, seeks to induce a third person to refuse to deal or to continue to deal with such employer. Such third person, however, persists in dealing with the employer, and after an interval, the employee, either with the same motive to induce such person to refuse to deal or to continue to deal, or from the motive of pure revenge, commits a physical assault upon such person or destroys his property. This act is, as we assume, illegal as contrary to the civil or criminal law, or both; but it is or should be clear, that the illegality of such acts in no way makes illegal the previous legal act of seeking to induce to refuse to deal or to continue to deal, any more than the previous legal act of seeking to induce to refuse to deal or to continue to deal makes legal the illegal act of assault or destruction of property. Leaving, then, out of consideration, for the present, the question of the legality of the act of inducing to refuse to deal or to continue to deal, whatever the intent of such act, or whether done by single individuals or by combinations of individuals, we confine our attention an injunction was allowed against entering upon their premises for the purpose of interfering with or interrupting their trade or customers, or against, while thereon, so interfering or interrupting; against obstructing access to the plaintiff's store by any physical means; so acting as to collect crowds in front of or adjacent to the store; obstructing travel on the streets or sidewalks at or in the neighborhood thereof. |