London Guarantee & Accident Co. v. Horn

• Decision Date: 16 December 1903
• Citation: 69 N.E. 526,206 Ill. 493
• Court: Illinois Supreme Court
• Parties: LONDON GUARANTEE & ACCIDENT CO., Limited, v. HORN.

206 Ill. 493

69 N.E. 526

LONDON GUARANTEE & ACCIDENT CO., Limited,

v.HORN. ^*

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, First District.

Action by Gustave Horn against the London Guarantee & Accident Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court (101 Ill. App. 355), defendant appeals. Affirmed.

Wilkin and Cartwright, JJ., dissenting.

F. J. Canty and J. A. Bloomingston, for appellant.

Carl A. Vogel (Daniel V. Gallery, of counsel), for appellee.

This is an action of trespass on the case by Gustave Horn, appellee, against the London Guarantee & Accident Company, appellant, commenced in the superior court of Cook county, where, upon a trial before a jury, Horn was awarded damages in the sum of $800, and judgment was entered by the court upon the verdict for that amount. Appellant appealed therefrom to the AppellateCourt for the First District, where the judgment of the superior court was affirmed. The Appellate Court has granted a certificate of importance, and appellant brings the case to this court by appeal.

Appellee, on January 7, 1899, was in the employ of Arnold, Schwinn & Co., of Chicago, as foreman of the frame department of its bicycle factory, and on that date, while engaged in his work, was injured while attempting to operate a milling machine, from which he suffered the loss of two fingers on his right hand. At the time of this injury Arnold, Schwinn & Co. carried an indemnity policy in the London Guarantee & Accident Company, indemnifying said firm against loss from injuries to its employés to the extent of $5,000 in case of injury to one person, and not exceeding $10,000 for injuries to two or more persons from the same accident. The policy provided that, if any suit should be brought against the assured to enforce a claim for damages on account of an accident covered by the policy, immediate notice thereof should be given to the company, and the company would defend against such proceeding in the name and on behalf of the assured or settle the same at its own cost, unless it should elect to pay to the assured the indemnity above mentioned; that the assured should not settle any claim except at its own cost, nor incur any expense, nor interfere in any negotiation for settlement, or in any legal proceeding, without the consent of the company previously given in writing; that the assured, when requested by the company, should aid in securing information and evidence and in effecting settlements. The policy did not require the assured to discharge and employé at the request of appellant, but did provide that appellant could cancel the policy at any time upon giving five days' previous notice of its intention so to do. Appellee, after the injury, went to a hospital, and while there was visited by one Robinett, an agent of the guarantee company, and later by the same agent at the house of appellee, at which place the agent requested appellee to call at the office of the company. Some time afterward appellee called at the office of the company, and had a conversation with one Bloomingston, who was at the head of the claim department of the appellant company and also its attorney, at which time Bloomingston offered appellee $50 in settlement of his claim for damages on account of the injury, which appellee refused to accept. Later appellee returned with an attorney, and Bloomingston increased the offer to $75, and informed appellee that unless he accepted that amount appellant would see to it that he was not re-employed by Arnold, Schwinn & Co., and would also see that he did not get work anywhere else. The offer was refused, and appellee brought suit against Arnold, Schwinn & Co., in which a verdict was subsequently rendered for $3,500, from which judgment an appeal was taken, which was pending at the time of the trial of this case. Pending that suit, and on June 26, 1899, Robinett, representing the guarantee company, called at the factory of Arnold, Schwinn & Co., where appellee had been reemployed, and in the presence of O'Connell, manager of the factory, offered appellee $100 in settlement of his claim, and told him that unless he accepted that amount he would have him discharged by Arnold, Schwinn & Co. Appellee refused the offer, and said he did not think that Mr. O'Connell would discharge him even if appellant so directed. Robinett then said to O'Connell, in the presence of appellee, that O'Connell would have to discharge Horn, as he refused to give appellant a release. O'Connell expressed the view that he did not have to discharge him, and after a reference to the contract of insurance said there was nothing in that which required him to discharge Horn if he refused to give a release. To this view Robinett assented, but said: ‘If you don't discharge him I will have to cancel this policy to-day. I am here to bring this case to a focus to-day, and if you refuse to lay him off I will cancel it; that's my orders.’ O'Connell then said to Horn that he had lots of work for him, and had expected that he would have a steady job all the year around, but that the insurance company would cancel the policy unless Horn was discharged, and he accordingly directed him to finish the work he was then engaged in and then quit, and accordingly Horn was discharged and paid off on the following day.

The Appellate Court finds that appellee's employment was not for any particular time, but Arnold, Schwinn & Co. did not desire to discharge him; that the firm had regular work for him, desired to retain his services as a foreman indefinitely, notwithstanding the suit pending against it, and discharged appellee solely because of appellant's demand, and because of its threat to cancel its policy of insurance in case of a failure to comply with that demand.

Appellee brought this suit to recover damages against appellant upon the theory that the facts above set forth showed that appellant had maliciously caused his discharge from his employment by the wrongful acts of its agents, and that such conduct constituted an actionable wrong, for which appellant was liable in damages to appellee.

SCOTT, J. (after stating the facts).

As we understand the record in this case, appellee was in the employ of Arnold, Schwinn & Co., a corporation, under a contract terminable by either party at any time, but under which the employment would have continued for an indefinite period had appellant not caused Arnold, Schwinn & Co. to discharge appellee for the purpose of compelling appellee to surrender and release a cause of action which he claimed, and for the satisfaction of which, if it existed, appellant was liable up to the amount of $5,000, and as a result of which discharge appelleewas without employment for several considerable periods, and sustained financial loss and injury consequent upon such discharge.

Under these circumstances, does a cause of action exist in favor of appellee and against appellant? The result of this suit depends upon the answer to this question.

We have been favored with most elaborate and exhaustive briefs by counsel for both parties. The case principally relied upon by counsel for appellant is that of Allen v. Flood, 67 L. J. Q. B. 119, decided by the House of Lords in 1897. This case has excited a wide discussion, and was considered at length by this court in Doremus v. Hennessy, 176 Ill. 608, 52 N. E. 924,54 N. E. 524,43 L. R. A. 797, 802,68 Am. St. Rep. 203. In this English case certain boiler makers, members of a trade union, in common employment with the plaintiffs, who were shipwrights, members of a rival organization, working on wood, objected to working with the latter on the ground that in a previous employment they had been engaged on ironwork, it being contrary to the regulations of the union to which the boiler makers belonged for shipwrights to do work of that character. Allen, as a representative of the boiler makers, saw the manager of their employer, to whom he stated that if the shipwrights, who were engaged from day to day, were not dismissed, the boiler makers would leave their work or be called out by their union. The shipwrights were thereupon discharged, and brought an action against Allen. Their right to recover was denied, principally upon the ground that every workman has a right to exercise his own option with regard to the persons in whose society he will agree or continue to work, and that when the employer was confronted with a situation where he would lose the services either of the boiler makers or the shipwrights he had the right to elect which class of workmen to discharge, and, electing to discharge the shipwrights, both he and the boiler makers were within their legal rights, and no cause of action arose.

In Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544, the plaintiffs and defendants were rival shipowners. The defendants offered certain inducements to secure the shipping of freight from those who might otherwise have patronized the plaintiffs. The right of action was denied, on the ground that the situation was the result of lawful competition between the parties.

Huttly v. Simmons, 67 Q. B. D. 213, is a case where the plaintiff was a cab driver, and the defendants were members of a cab drivers' trade union. All parties to the suit were engaged in business in the same city. The defendants induced a cab proprietor to refuse to engage the plaintiff to drive a cab for him or to let a cab to the plaintiff to be driven by him. It will be observed that in this case the plaintiff in his employ would come in competition with the union to which the defendants belonged, and in holding that no cause of action existed it was said that none of the acts done or agreed to be done gave the plaintiff any right of action for injury, in law, to any legal right of his; following the case of Allen v. Flood, supra.

In Quinn v. Leathem, App. Cas. of 1901, p. 495 (decided by the House of Lords), Lord Macnaghten, in...