Dagostino v. Rogers

• Decision Date: 19 November 1917
• Docket Number: 33-1917
• Citation: 68 Pa.Super. 284
• Parties: Dagostino v. Rogers, Appellant
• Court: Pennsylvania Superior Court

68 Pa.Super. 284

Dagostino v. Rogers, Appellant

No. 33-1917

Superior Court of Pennsylvania

November 19, 1917

Argued April 16, 1917

Appeal by defendants, from judgment of C.P. Fayette Co.-1914, No 421, on verdict for plaintiff in case of Alphonso Dagostino v. Grace Rainey Rogers et al.

Trespass to recover damages for injuries to plaintiff's store alleged to have been caused by the operation of a company store. Before Umbel, P. J.

At the trial the plaintiff offered no proof of malice but did show that the defendants' superintendent had told some of the defendants' employees that they should and must patronize the company's store if they desired to continue in their employment.

The court charged in part as follows:

The primary question for your determination is as to whether or not the defendants, through their superintendent, did such acts, by influencing their workmen improperly and directing that they quit dealing with the plaintiff, and that as a consequence the plaintiff sustained injury; if you find that to be the fact then your verdict should be for the plaintiff for whatever amount of loss you find he sustained during the four months that have been testified to by the plaintiff and the other witnesses.

Verdict for plaintiff for $ 800, on which judgment was entered for $ 180.93, the reduction having been made by the court because no damages over the latter sum were shown. Defendant appealed.

Errors assigned were above instructions and in submitting the case to the jury.

E. C Higbee, of Sterling, Higbee & Matthews, with him J. G Carroll, for appellants. -- The acts committed by the defendants as disclosed by the evidence are lawful: Com. v. Clark, 14 Pa.Super. 435; Adair v. U.S. 208 U.S. 161; Coppage v. State of Kansas, 236 U.S. 1.

The acts of the defendants being lawful, they did not constitute a right of action in plaintiff: Penna. R. R. Co. v. Marchant, 119 Pa. 541.

David S. Kelly, for appellee.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

HENDERSON, J.

The defendants maintain coke works known as " Elm Grove" in Fayette County, and in connection with that business conduct a store for the sale of general merchandise. The plaintiff keeps a store located near the defendants' plant. His allegation is that the defendants have interfered with his business and diminished the profits of his trade by requiring certain of their employees to deal at the defendants' store rather than at the plaintiff's, as a result of which the latter has sustained a loss of patronage and a consequent diminution of profits. The specific charge of the declaration is that " the defendants by and through their superintendent maliciously intending to injure plaintiff and to injure his said business, and to drive him out of and destroy his said business, and to prevent him from continuing the profitable and lucrative business as aforesaid and to prevent him from acquiring any profit or gain therefrom, and to compel the tenants of the buildings of the defendants as aforesaid to buy from the store of the defendants, have entered upon a course of conduct the object of which is to prevent the plaintiff from carrying on his said business with the employees and tenants of the defendants, by hindering, delaying, obstructing and interfering with the plaintiff in the conduct of his business as aforesaid." The means used were alleged to be threats and intimidations of the defendants' employees by making it known to such employees that in case they continued to patronize the store of the plaintiff and purchase from him such merchandise as was handled and sold in the store of the defendants they would be required to seek employment elsewhere and would no longer be employed by the defendants. It is not alleged that any of the defendants' employees were discharged for dealing with the plaintiff but that a few of the plaintiff's customers ceased to trade with him because of the direction of the defendants' superintendent that they purchase from the company's store while in the defendants' service. A verdict for $ 800 was found in favor of the plaintiff which was subsequently reduced to $ 180.93 with the consent of the plaintiff, that being the amount of profit which the plaintiff alleged he had lost. Exception was taken to the admission of evidence bearing on the loss of business but in the view which we take of the case it is unnecessary to consider that feature of it. An examination of the evidence fails to disclose any testimony supporting the averment of the statement of claim that the defendants maliciously intended to injure the plaintiff or to drive him out of, or destroy his business...