167 Mass. 92 (1896), Vegelahn v. Guntner

Citation:167 Mass. 92, 44 N.E. 1077
Opinion Judge:ALLEN, J.
Party Name:VEGELAHN v. GUNTNER et al.
Attorney:[44 N.E. 1077] Hale & Dickerman, for plaintiff. Thomas H. Russell and Arthur H. Russell, for respondents.
Case Date:October 27, 1896
Court:Supreme Judicial Court of Massachusetts

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167 Mass. 92 (1896)

44 N.E. 1077



GUNTNER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 27, 1896


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[44 N.E. 1077] Hale & Dickerman, for plaintiff.

Thomas H. Russell and Arthur H. Russell, for respondents.



The principal question in this case is whether the defendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff's workmen, the defendants conspired to prevent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a certain schedule of prices. The means adopted were persuasion and social pressure, threats of personal injury or unlawful harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plaintiff's factory, maintained from half past 6 in the morning till half past 5 in the afternoon, on one of the busiest streets of Boston. The number of men was greater at times, and at times showed some little disposition to stop the plaintiff's door. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen; and it was found that the patrol would probably be continued if not enjoined. There was also some evidence of persuasion to break existing contracts. The patrol was maintained as one of the means of carrying out the defendants' plan, and it was used in combination with social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts. It was thus one means of intimidation, indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. Such an act is an unlawful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon, and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the constitution itself. Com. v. Perry, 155 Mass. 117, 28 N.E. 1126; People v. Gillson, 109 N.Y. 389, 17 N.E. 343; Braceville Coal Co. v.

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People, 147 Ill. 71, 35 N.E. 62; Ritchie v. People, 155 Ill. 98, 40 N.E. 454; Low v. Printing Co. (Neb.) 59 N.W. 362. No one can lawfully interfere by force or intimidation to prevent employers or persons employed or wishing to be employed from the exercise of these rights. It is in Massachusetts, as in some other states, even made a criminal offense for one, by intimidation or force, to prevent, or seek to prevent, a person from entering into or continuing in the employment of a person or corporation. Pub.St. c. 74, § 2. Intimidation is not limited to threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimidation which is illegal. Patrolling or picketing, under the circumstances stated in the report, has elements of intimidation like those which were found to exist in Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307. It was declared to be unlawful in Reg. v. Druitt, 10 Cox, Cr.Cas. 592; Reg. v. Hibbert, 13 Cox, Cr.Cas. 82; Reg. v. Bauld, Id. 282. It was assumed to be unlawful in Trollope v. Trader's Fed. (1875) 11 L.T. 228, though in that case the pickets were withdrawn before the bringing of the bill. The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases; and, when instituted for the purpose of interfering with his business, it became a private nuisance. See Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Barr v. Trades Council (N.J.Ch.) 30 A. 881; Murdock v. Walker, 152 Pa.St. 595, 25 A. 492; China Co. v. Brown, 164 Pa.St. 449, 30 A. 261; Coeur D'Alene Consol. & Min. Co. v. Miners' Union of Wardner, 51 F. 260; Temperton v. Russell [1893] 1 Q.B. 715; Floyd v. Jackson, [1895] 11 L.T. 276; Wright v. Hennessey, 52 Alb.Law J. 104 (a case before Baron Pollock); Judge v. Bennett, 36 Wkly.Rep. 103; Lyons v. Wilkins [1896] 1 Ch. 811.

The defendants contend that these acts were justifiable, because they were only seeking to secure better wages for themselves, by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff's premises, as a means of carrying out their conspiracy. A combination among persons merely to regulate their own conduct is within allowable competition, and is lawful, although others [44 N.E. 1078] may be indirectly affected thereby.

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But a combination to do injurious acts expressly directed to another, by way of intimidation or constraint, either of himself or of persons employed or seeking to be employed by him, is outside of allowable competition, and is unlawful. Various decided cases fall within the former class; for example: Worthington v. Waring, 157 Mass. 421, 32 N.E. 744; Snow v. Wheeler, 113 Mass. 179; Bowen v. Matheson, 14 Allen, 499; Com. v. Hunt, 4 Metc. (Mass.) 111; Heywood v. Tillson, 75 Me. 225; Cote v. Murphy, 159 Pa.St. 420, 28 A. 190; Bohn Manuf'g Co. v. Hollis, 54 Minn. 223, 55 N.W. 1119; Steamship Co. v. McGregor [[[1892] App.Cas. 25; Curran v. Treleaven [1891] 2 Q.B. 545, 561. The present case falls within the latter class.

Nor does the fact that the defendants' acts might subject them to an indictment prevent a court of equity from issuing an injunction. It is true that, ordinarily, a court of equity will decline to issue an injunction to restrain the commission of a crime; but a continuing injury to property or business may be enjoined, although it may also be punishable as a nuisance or other crime. Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307; In re Debs, 158 U.S. 564, 593, 599, 15 Sup.Ct. 900; Baltimore & P.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 329, 2 Sup.Ct. 719; Cranford v. Tyrrell, 128 N.Y. 341, 344, 28 N.E. 514; Gilbert v. Mickle, 4 Sandf.Ch. 357; Port of Mobile v. Louisville & N.R. Co., 84 Ala. 115, 126, 4 So. 106; Arthur v. Oakes, 11 C.C.A. 209, 63 F. 310; Toledo, A., A. & N.M. Ry. Co. v. Pennsylvania Co., 54 F. 730, 744; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 239, 240, 253; Hermann Loog v. Bean, 26 Ch.Div. 306, 314, 316, 317; Monson v. Tussaud [1894] 1 Q.B. 671, 689, 690, 698.

A question is also presented whether the court should enjoin such interference with persons in the employment of the plaintiff who are not bound by contract to remain with him, or with persons who are not under any existing contract, but who are seeking or intending to enter into his employment. A conspiracy to interfere with the plaintiff's business by means of threats and intimidation, and by maintaining a patrol in front of his premises, in order to prevent persons from entering his employment, or in order to prevent persons who are in his employment from continuing therein, is unlawful, even though such persons are not bound by contract to enter into or to continue

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in his employment; and the injunction should not be so limited as to relate only to persons who are bound by existing contracts. Walker v. Cronin, 107 Mass. 555, 565; Carew v. Rutherford, 106 Mass. 1; Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307; Temperton v. Russell [1893] 1 Q.B. 715, 728, 731; Flood v. Jackson [1895] 11 L.T. 276. We therefore think that the injunction should be in the form as originally issued. So ordered.


FIELD, C.J. (dissenting).

The practice of issuing injunctions in cases of this kind is of very recent origin. One of the earliest authorities in the United States for enjoining, in equity, acts somewhat like those alleged against the defendants in the present case, is Sherry v. Perkins (decided in 1888) 147 Mass. 212, 17 N.E. 307. It was found as a fact in that case that the defendants entered into a scheme, by threats and intimidation, to prevent persons in the employment of the plaintiffs as lasters from continuing in such employment, and, in like manner, to prevent other persons from entering into such employment as lasters; that the use of the banners was a part of the scheme; that the first banner was carried from January 8, 1887, to March 22, 1887, and the second banner from March 22, 1887, to the time of the hearing; and that "the plaintiffs have been and are injured in their business and property thereby." The full court say: "The act of displaying banners with devices, as a means of threats and intimidation to prevent persons from entering into or continuing in the employment of the plaintiffs, was injurious to the plaintiffs, and illegal at common law and by statute. Pub.St. c. 74, § 2; Walker v. Cronin, 107 Mass. 555." "The banner was a standing menace to all who were or wished to be in the employment of the plaintiffs, to deter them from entering the plaintiffs' premises. Maintaining it was a continuous unlawful act, injurious to the plaintiffs' business and property, and was a nuisance such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf.Ch. 357; Spinning Co. v. Riley, L.R. 6 Eq. 551." Gilbert v. Mickle, one of the authorities cited in Sherry v. Perkins, was a suit in equity by an auctioneer against the mayor of the city of New York to restrain him and those acting under

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him from parading, placing, or keeping before the plaintiff's auction rooms a placard as follows: "Strangers, beware of mock auctions." A temporary injunction was issued, but, on hearing, it was dissolved. Notwithstanding what is said in the opinion of the vice chancellor, his conclusion is as follows: "I am satisfied that it is my duty to leave...

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