Globe & Rutgers Fire Ins. Co. v. Firemen's Fund Fire Ins. Co.

• Decision Date: 30 May 1910
• Docket Number: 14185
• Citation: 97 Miss. 148,52 So. 454
• Parties: GLOBE & RUTGERS FIRE INSURANCE COMPANY v. FIREMEN'S FUND INSURANCE COMPANY ET AL
• Court: Mississippi Supreme Court

52 So. 454

97 Miss. 148

GLOBE & RUTGERS FIRE INSURANCE COMPANY v. FIREMEN'S FUND INSURANCE COMPANY ET AL

No. 14185

Supreme Court of Mississippi

May 30, 1910

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

The Globe, etc., Insurance Company, appellant, was plaintiff in the court below; The Firemen's, etc., Insurance Company six other insurance companies and divers individuals appellees, were defendants there. From a judgment sustaining demurrers to the declaration and dismissing the suit the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

T. M Miller and Joseph Hirsh, for appellant.

It is submitted that, at the present stage in the development of the principles of law relating to conspiracies and interference with contracts, the position of defendants' counsel is distinctly a retrograde.

According to their theory, which the court below was persuaded to accept, any number of persons, instigated by malevolence toward another engaged in a lawful business, may, with impunity, combine, and, for the purpose of driving him out of such business, may persuade and intimidate the employes upon whom he must depend for success into leaving his service; that, unless the employes are bound for a specific term, so as to be, themselves, subject to an action for breach of contract in such circumstances, the interference complained of belongs to the class of wrongs falling within the category damnum absque injuria. For, they say, actual pecuniary damage is the gist of the action of conspiracy and no damage, in a legal sense, can result where a person is intimidated into doing a thing injurious to another, but which he might do without accountability. And they say, further, that what an individual may do, without legal accountability, any number of persons may unite in doing.

If defendants are right, then it is a vain saying that every person has the right to be protected in a lawful business against obstruction or molestation, for it is entirely consistent with legitimate business to have employes whose services are at the will of both parties. We are not dealing here with a situation where injury may incidentally flow from the exercise of a perfect right, as it would be where, for instance, one should, for his own benefit, employ the servant of a rival, who, having no contract for a term, is at liberty to quit at will. In such case, both the party alleged to have interfered and the servant leaving are in the exercise of their rights, which being true, no complaint can be made against either. But how different is the case where one not prosecuting any legitimate undertaking in his own behalf wantonly and maliciously, with no other object than to destroy the business of a rival, uses efficient means to induce or compel the employes of the latter to abandon his service? Such conduct is a tort, pure and simple, and it cannot be material, when it comes to the question of redress, whether the employe is one for a term or at will. The time is now almost prehistoric when the right of action for malicious interference with the business of another, in respect to the services of employes, was thought to be limited to per quod servitium amisit and as applied to the relation of a common servant.

A contract for service at will, should be as much entitled to protection against malicious interference as any other part of a business; nor can it be of any consequence whether a single individual is guilty, or a combination of persons are the offenders,--the only difference being in the added power of the combination to do the mischief. Counsel opposing seem to think that because the defendants were rivals in business they were within their rights in doing the things charged, so far as the plaintiff was concerned, and that if anybody was aggrieved it was the intimidated agent himself. As late as 1904, the supreme court of Massachusetts used this striking language in a conspiracy case where legitimate competition was set up as a justification: "To what extent combination may be allowed in competition is a matter about which there is as yet much conflict, but it is possible that in a more advanced stage of the discussion the day may come when it will be more clearly seen, and will more distinctly appear in the adjudication of the courts than as yet has been the case, that the proposition that what one may lawfully do, any number of men acting together by combined agreement lawfully may do, is to be received with newly disclosed qualifications, arising out of the changed conditions of civilized life and of the increased facility and power of organized combination, and that the difference between the power of individuals acting each according to his own preference and that of an organized and extensive combination may be so great in its effect upon public and private interests as to cease to be simply one of degree and to reach the dignity of a difference in kind." Martel v. White, 102 Am. St. Rep. 345.

In the same case, the court said: "It is elemental that the unlawfulness of a conspiracy may be found either in the end sought or the means to be used. If either is unlawful within the meaning of the term as applied to the subject then the conspiracy is unlawful." And since it appeared that the object of the associated defendants was, by means of penalties inflicted on their own members, to prevent dealings with non-members, and that the plaintiff was injured thereby, the court held that the case should have been left to the jury. The doctrine which, it is contended, applies to the case at bar, may be stated thus: "Everyone has the right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract, or otherwise, is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing. Walker v. Cronin, 107 Mass. 555; 2 Cooley, Torts (3d. ed.), 598. "From the very nature of the case, it is manifest that the right of competition furnishes no justification for an act done by the use of means which in their nature are violative of the principle upon which it rests. The weapons used by the trader who relies upon this right for justification must be those furnished by the laws of trade, or, at least must not be inconsistent with their free operation." Angle v. Chicago, etc., Ry. Co., 151 U.S. 13; Martel v. White, supra.

One who maliciously induces an employer to discharge an employe by means of false statements, threats or putting in fear, or perhaps by means of malevolent advice and persuasion, is liable to an action of tort by the employe. And it makes no difference whether the employment was for a fixed term, not yet expired, or is terminable at the will of the employer. 2 Cooley, Torts (3d. ed.), 590, 591, citing numerous cases, among others London Guarantee & Accident Co. v. Horn, 206 Ill. 493, where the defendant corporation procured the plaintiff's discharge because he refused to accept a less sum than that to which he was entitled.

The defendant was held liable, the court saying: "We, therefore, conclude, both upon reason and authority, that where a third party induces an employer to discharge his employe, who is working under a contract terminable at will, but under which the employment would have continued indefinitely, in accordance with the desire of the employer, except for such interference, and where the only motive moving the third party is the desire to injure the employe and benefit himself at the expense of the employe by compelling the latter to surrender an alleged cause of action * * * and where such right of action does not depend upon, and is not connected with the continuance of such employment, a cause of action arises in favor of the employe, against the third party." Mr. Cooley adds that the same general rules apply to an interference with one's trade or business as to interference with the employment of labor. Neither one person nor a combination of persons may interfere with one's business contracts, by inducing the obligors to break such contracts and for any such interference an action will lie." Ib. 600. "It is clear that it is unlawful and actionable for one man, from unlawful motives, to interfere with another's trade, by fraud or misrepresentation, or by molesting his customers, or those who would be customers, or by preventing others from working for him or causing them to leave his employ by fraud or misrepresentation of physical or moral intimidation or persuasion, with an intent to inflict injury, which causes loss." Doremus v. Hennessy (Ill.), 43 L. R. A. 797.

The common law seeks to protect every person against the wrongful acts of others, whether committed alone or by combination and an action may be had for injuries done which cause another loss in the enjoyment of any right, or privilege, or property." Ib. In the case here cited the defendants combined to drive a rival out of business because she would not agree to their scale of prices, and the defense attempted was that they could not be held liable for merely inducing others to break their contracts, such others being free agents and not coerced by force or fraud; that their acts in inducing others to break their contracts were not mere malicious acts done solely with intent to injure the plaintiff...