Chipley v. Atkinson

• Decision Date: 25 March 1887
• Citation: 1 So. 934,23 Fla. 206
• Parties: CHIPLEY v. ATKINSON.
• Court: Florida Supreme Court

1 So. 934

23 Fla. 206

CHIPLEY v. ATKINSON.

Florida Supreme Court

March 25, 1887

Appeal from circuit court, Escambia county.

Syllabus by the Court

SYLLABUS

An action lies, in behalf of an employe, against a person who has maliciously procured the employer to discharge such employe from employment in which he is engaged, under a legal contract, for a certain period, provided damage result to the employe from such discharge.

An action will also lie where the period for which the employment is to continue is not certain, if damage result from the discharge; even though, from inability to ascertain the amount of the damage, a verdict for nominal damages only should result.

The fact that no contract, nor any legal right of the employe as against the employer, is violated by the employer, or that no action can be maintained by the employe against the employer for such discharge, does not prevent a recovery against the third person who has maliciously procured the discharge, and which discharge would not have occurred but for such procurement.

An act done or attempt made by a third party with the malicious intent to procure such a discharge, but not successful in procuring it, will not support an action brought for maliciously procuring the discharge. The actual procurement of the discharge is an essential to such an action.

The declaration alleged, in effect, that there was a contract for employment, to be continued for a period of time. Held, it was error to charge the jury that the plaintiff could recover, even though there was no contract for a definite term of service.

An absence from the agreement or contract of service of any stipulation for a certain amount of wages or compensation will not defeat a recovery. If the value of the compensation to be paid can be ascertained in any legal way, it is sufficient.

A discharge by the employer is essential to a recovery. If the employe was not discharged, but voluntarily left the employment on account of the conduct of the party charged with having procured his discharge, the action cannot be maintained.

The speculative profits of a proposed business cannot be the basis of the assessment of actual damages. Where, however, in a case of like kind to the one set up in the first count of the declaration, the defendant knew or believed, or had reason to believe, that the employer had promised or did actually intend to admit the plaintiff into partnership with him, the fact of such knowledge or belief, or reason to believe such promise or intention, may be considered by the jury in passing upon the motive of the defendant and in fixing exemplary damages.

One person may withhold a gratuity from, or may break his contract with, a second person, for the reason that the second person retains a third person in his employ, or with an interest in his business, without giving a right of action to the third person. No legal right of the third person is violated by the first person who simply so withholds or breaks his contract for such reason, nor is there any privity of contract between the first and the third persons. The assumed reason for the withholding or breach is not of itself, or with the mere withholding of the gratuity or the mere breach of the contract, a ground of action; nor is proof of the mere withholding or breach, because of such retention of the third person, proof of a procurement by the first person of the discharge. It is permissible, however, in an action like this, to show that such withholding or breach was maliciously used by the first person to procure or persuade the second to discharge the third person.

COUNSEL

W. A. Blount, for appellant.

Liddon & Carter and J. C. Avery, for appellee.

OPINION

RANEY, J.

Atkinson, who was plaintiff, sued Chipley for that the plaintiff, on June 16, 1883, was in the employment of Kehoe & Walker, who were partners in the manufacture and sale of brick, as a general superintendent of their business under an agreement by which such employment was to be continued for a long period of time, and with a prospect and promise of an interest in the said business; and that the defendant, contriving and intending to injure the plaintiff did maliciously and wrongfully procure and cause the said Kehoe & Walker to discharge and dismiss the plaintiff from their service, by reason of which wrongful and malicious act of defendant the plaintiff suffered great loss and damage by being thrown out of the said employment, by which he earned the support of himself and family, and by being forced to travel and maintain himself and family while in search of other employment, and that, by the said wrongful and malicious act of the defendant, the plaintiff suffered other and further expense, trouble, inconvenience, annoyance and pain of mind and body, to the damage of the plaintiff of $5,000. There is also a count for slander, in that the defendant falsely and maliciously spoke and published of the plaintiff the words, 'He is trying to rob the railroad company,' meaning the Pensacola & Atlantic Railroad Company, to plaintiff's damage $5,000. The defendant pleaded not guilty, and there was a trial by jury, resulting in a recovery by the plaintiff of $740 damages, and the defendant appealed.

The instructions given by the judge to the jury, and excepted to are stated in the body of the opinion. Those given and not excepted to are as follows:

'If you find that he was, at the time alleged, in the employ of Kehoe & Walker, and that the defendant maliciously and wrongfully procured his discharge, you may find for the plaintiff, and give him the damages which resulted from the discharge. You may, in addition, if you find the malice give him what the law calls vindictive or exemplary damages, which are given to deter men from doing those things that are wrongful.'

'If you find that the contract was not for a definite term, and there are no payments or other circumstances to show that the hiring was from period to period, then it would be a hiring from day to day, and terminable at the will of either party.'

'In order that plaintiff may recover under the first count, he must prove that he was discharged by Kehoe & Walker. If the proof satisfies you that he voluntarily left the service of Kehoe & Walker to save them for trouble and expense, then he cannot recover.'

'In order that the plaintiff may sustain an action against the defendant on the first count, it must appear that he unlawfully procured the discharge by Kehoe & Walker of the plaintiff. If the discharge merely resulted from a lawful act of the defendant, even though such lawful act was done with the intention of procuring the discharge of the plaintiff, the plaintiff cannot recover.'

'It was lawful for the defendant, as vice-president and manager of the Pensacola & Atlantic Railroad Company, to refuse to furnish a sidetract gratuitously to Kehoe & Walker if they retained plaintiff in their employ, or with a interest in their business, if there was no contract by the railroad company to furnish it gratuitously.'

'The mere fact that a discharge of the plaintiff by Kehoe & Walker resulted from the act of the defendant does not constitute such a procurement by the defendant of the plaintiff's discharge as to make the defendant liable. In order to constitute such procurement, the defendant must have had a design or purpose to cause the discharge, and have done some act to carry out such design.' 333, (decided in 1881,) the English 33, (decided in 1881,) the English court of appeals held that an action lies for maliciously procuring a breach of contract to give exclusive personal service for a time certain, provided damage accrues; and that, to sustain such an action, it is not necessary that the employer and employe should stand in the strict relation of master and servant. The person induced to break his contract had agreed to manufacture glazed bricks and baths, and not to engage himself to any one else for a term of five years. This decision is founded upon one of the chains of reasoning in Lumley v. Gye, 2 El. & Bl. 216, (decided by the queen's bench in 1853,) though it repudiates the other. The chain of reasoning adopted is set forth in Bowen v. Hall substantially as follows: Wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which, in the particular case, does produce such an injury, an action on the case will lie. That, if these conditions are satisfied, the action does not the less lie because the natural and probable consequence of the act complained of is an act done by a third person, or because such act, so done by a third person, is a breach of duty or contract by him, or an act illegal on his part, or an act otherwise imposing an actionable liability on him. That, though it has been said the law implies that the act of the third party, being one which he has free will and power to do or not to do, is his own willful act, and therefore is not the natural or probable result of the defendant's act; and though this may be so in many cases, yet, if the law were so to imply in every case, it would be an implication contrary to manifest truth and fact. That, though it has been said that if the act of the third person is a breach of duty or contract, or is an act which it is illegal for him to do, the law will not recognize that it is a natural or probable consequence of the defendant's act, yet, if this were so held in all cases, the law would in some instances refuse to recognize what manifestly is true in fact. That merely to persuade a person to break his contract may not be wrongful in law or fact; still, if the persuasion be

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