Evans v. Swaim

• Decision Date: 25 May 1944
• Docket Number: 6 Div. 124.
• Citation: 245 Ala. 641,18 So.2d 400
• Parties: EVANS v. SWAIM et al.
• Court: Alabama Supreme Court

18 So.2d 400

245 Ala. 641

EVANS v. SWAIM et al.

6 Div. 124.

Supreme Court of Alabama

May 25, 1944

Rehearing Denied June 22, 1944.

Horace C. Wilkinson, of Birmingham, and T. B. Ward, of Tuscaloosa for appellant.

Gordon Davis, of Tuscaloosa, for appellees.

GARDNER Chief Justice.

Plaintiff A. P. Evans, had long been an employee of the Columbia Mill & Elevator Company, selling its flour on a commission basis since the year 1932. The two officials who gave orders with reference to the performance of his work were one Christley, Secretary-Treasurer, and McKinley, President, of the said Columbia Mill Company (to so abbreviate).

The City of Tuscaloosa was embraced in the territory in which Evans sold the flour of the Columbia Mill Company, and among its customers was the Merchants Exchange, Inc., managed by R J. Bomar, and in which S. G. Swaim, Bomar's brother-in-law, was a substantial stockholder. On June 28, 1939, plaintiff Evans received a letter from the Columbia Mill Company, written by Mr. Christley, the Secretary-Treasurer, definitely prohibiting him from representing the Company at Tuscaloosa. The letter disclosed that the writer had recently called on the Merchants Exchange, Inc., at Tuscaloosa and had gone "thoroughly into the matter of our representation there on flour," to use the language of the letter.

The letter further stated that Bomar had told the writer "he was not interested under any circumstances in our flour account as long as you represent us. We, of course, can't afford just to chuck a customer away when they are so hard to find."

Evans' testimony is to the effect that this representation in Tuscaloosa had yielded on an average $100 a month on a commission basis. A few months following the loss of this territory, Evans brought this suit against the Merchants Exchange, Inc., R. J. Bomar, S. G. Swaim, and A. E. Hughes, seeking damages upon the theory that the defendants had wrongfully and maliciously conspired together to cause the Columbia Mill Company to discharge him as its salesman for the sale of its products in Tuscaloosa, Alabama. Upon conclusion of the evidence for the plaintiff the Court, on motion of the defendant Hughes, excluded all the evidence as to him and proceeded with the trial against the remaining defendants. But at the conclusion of all the evidence, the Court gave for these defendants, jointly and severally, the affirmative charge in their favor. There was consequently a verdict and judgment for the defendants, from which the plaintiff prosecutes this appeal.

We may observe in the beginning that the gist of this action is the wrong committed and not the conspiracy; and the allegation of conspiracy may ordinarily be regarded as mere surplusage and need not be proved in order to support the action, as the plaintiff may show by other evidence guilty participation by all defendants in the tort which constitutes the cause of action. This is the generally accepted rule (15 C.J. S., Conspiracy, § 27, p. 1041), and is well established by our own authorities. Illustrative is Howard v. McCarson, 215 Ala. 251, 110 So. 296, 298, where it was said: "But such an allegation of conspiracy is not of the substance of the tort, and is in fact useful merely in aggravation of damages, or in showing a common liability of all for the acts of one." And again in Humphrey v. Terry, 206 Ala. 249, 89 So. 607, 608: "The gist of an action for conspiracy is the damage, and not the conspiracy." See also Louisville & N. R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003.

A case bearing analogy to that here under consideration is United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520. There the evidence for the plaintiff tended to show that his discharge was procured wrongfully and maliciously by threat of cancellation of an insurance policy for the purpose of forcing a settlement of his claim favorable to the Company and disadvantageous to himself. Likewise bearing analogy is News Employees' Benevolent Soc. v. Agricola, 240 Ala. 668, 200 So. 748, where plaintiff suffered expulsion from the society because of his suit against it to recover dividends which he claimed to be due. And in Carter v. Knapp Motor Co., 243 Ala. 600, 11 So.2d 383, 144 A.L.R. 1177, complainant was held entitled to injunctive relief against wrongful and malicious interference with its business, defendant in that case attempting to coerce complainant into giving them another car, though complainant had no connection with the sale of the car and was under no obligation to comply with such a demand.

In the more recent case of Lash v. State, 244 Ala. 48, 14 So.2d 229, reference was made to our decisions to the effect that the right to conduct one's business without the wrongful interference of others is a valuable property right which will be protected, if necessary, by injunctive process. And in Hill Grocery Co. v. Carroll, 223 Ala. 376, 136 So. 789, 791, it was observed: "One's business or employment is fully recognized in the law of Alabama as in the nature of a property right. To unlawfully or maliciously interfere therewith, causing the employee to be discharged by his employer, is actionable. That the employment is for no stipulated period, but terminable at the will of the parties, is not of consequence."

In Tennessee Coal, Iron & R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008, 1010, upon which counsel for defendants places reliance, it was said: "One of the rights incident to many, if not all, contracts is to be protected from malicious interference."

Of course, it is too well understood to require repetition here, that if there is evidence from which a reasonable inference could be drawn adverse to the party requesting affirmative instructions in his favor, such instructions should be refused. 18 Ala.Dig., Trial, + 142, 143; Louis Pizitz Dry Goods Co. v. Waldrop, 237 Ala. 208, 186 So. 151.

The question, therefore, is whether or not there was sufficient proof from which a reasonable inference could be drawn that these defendants, or either of them, wrongfully and maliciously caused plaintiff to lose his employment in the Tuscaloosa territory.

To review the evidence in detail would serve no useful purpose and extend this opinion to undue length. Suffice it to say the testimony has been carefully read and duly weighed, and we feel that a brief reference to the salient facts will serve all purposes.

It is clear enough that plaintiff and Bomar had known one another for a long number of years, and at a time when the latter was buyer and manager of the Alabama Feed & Grocery Company. This Company became very much financially embarrassed, owing some $40,000. Plaintiff loaned the corporation and Bomar, with the endorsement of S. E. and W. W. Deal, the sum of $5,000, which was used in the settlement of this large indebtedness owed by the Alabama Feed & Grocery Company. This matter was concluded late in 1936. There are some details as to stock in this corporation, and its final transfer to Bomar, which need no special mention here. After plaintiff had assisted Bomar in the compromise of a forty-thousand-dollar indebtedness for the $5,000 which he lent, the new corporation was formed, known as the Merchants Exchange, Inc., one of the defendants here. Bomar executed two notes to Evans, one for $5,000, the other for $750.

Plaintiff insists that this latter note was for the purchase price of the stock of the older corporation and also for his services in bringing about so advantageous a settlement. From time to time these notes were renewed. The five-thousand-dollar note was paid down to $1300, with nothing paid on the seven-hundred-and-fifty-dollar note. In the five-thousand-dollar note there was expressly pledged as collateral fifty shares of the capital stock of the Merchants Exchange. Plaintiff insisted that this collateral also was pledged as security for the seven-hundred-and-fifty-dollar note, and would not accept payment of one without the other and surrender such collateral.

The evidence indicates that Bomar was of the opinion plaintiff had added the pledge of this collateral in his seven-hundred-and-fifty-dollar note. At any rate, the controversy thus arose and bad feeling engendered.

In August, 1938, Evans wrote Bomar concerning these notes and giving his version of the matter, informing him at the same time that they were in the hands of an attorney for collection. On January 20, 1939, Bomar wrote Evans asking him not to place "our notes for collection until you hear from me Monday, as I am doing my very best to raise the amount of money." And on the following day Bomar wrote plaintiff another letter, informing him that he was working on a loan, and if unsuccessful, he would sign a new note and "place stock as...