Huskie v. Griffin

• Citation: 74 A. 595,75 N.H. 345
• Parties: HUSKIE v. GRIFFIN.
• Decision Date: 02 November 1909
• Court: New Hampshire Supreme Court

74 A. 595

75 N.H. 345

HUSKIE

v. GRIFFIN.

Supreme Court of New Hampshire. Hillsborough.

Nov. 2, 1909.

Transferred from Superior Court, Hillsborough County; Plummer, Judge.

Action by Hector T. Huskie against Willard H. Griffin. Judgment of nonsuit. Transferred from the superior court on plaintiff's exception. Exception sustained.

The plaintiff's evidence tended to prove that, while he was employed by the defendant, he applied for an increase of wages, and was told by the defendant's superintendent that he was at liberty to leave at any time if he could better himself. He sought employment elsewhere, and one day received a note stating that he could have work at the McElwain factory. He showed the note to Griffin's superintendent, who made no objection to the proposed action, but at once went to the office and drew the plaintiff's wages for him. As soon as the plaintiff had left, Griffin telephoned to Trull, superintendent of the McElwain shop. Trull's testimony as to the conversation was in part as follows: "He telephoned and said there was a man from my factory came up to his factory with a note and hired, or was about to hire, one of his men, right in the middle of the day, and wanted to know if I thought that was a nice thing to do. I said it was not, and that I would not hire the man; and when I found out about it I told our man not to hire him. Q. That is, you instructed your agent not to hire him? A. Yes, sir; but after that Griffin told me I could hire him, but I told him I didn't want him. Q. That was a little ironical, wasn't it, Mr. Trull? A. Well, during the same conversation, right afterward, he said, 'You can have hiin if you want him, you can hire him.' Q. And you understood that to be a little bit ironical, didn't you? A. I didn't understand anything about it. Q. Well, you didn't hire him, anyhow? A. No, sir; I didn't hire him." On cross-examination, the witness stated the conversation more favorable to the defendant. When the plaintiff reached the McElwain factory he was refused employment. He then returned to the defendant, who complained because the plaintiff received a note in the shop. The conversation became heated, and the defendant refused to comply with the plaintiff's request to telephone to Trull and adjust the matter.

David W. Perkins, for plaintiff.

Burnham, Brown, Jones & Warren and Mr. Manning, for defendant.

PEASLEE, J. The parties to this action do not agree as to what facts the evidence tended to prove. The defendant argues that because he asked Trull to retain the plaintiff as an employe therefore it cannot be found that the defendant sought to cause the plaintiff's discharge by Trull. The plaintiff's claim is that the request to retain him might be found to be a mere cover, well understood by both parties to the conversation. His claim is well founded. A jury might believe that the complaint made by the defendant to Trull was false, and that the defendant, after he had encouraged the plaintiff to seek employment elsewhere, maliciously caused the plaintiff's discharge from such new employment. The plaintiff's engagement was not for any certain period. Trull might lawfully discharge him at any time. It therefore follows that cases involving recovery for procuring the breach of a binding executory contract (Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475; South Wales Miners' Fed. v. Glamorgan Coal Co., [1905] A. C. 239) are not in point here. The issue presented is that of the existence and extent of what has come to be known as the right to an "open market." How far one may lawfully interfere to prevent the making of contracts between third parties is a problem which has been much discussed in other jurisdictions. It is new in this state. Three phases of it are presented by the case at bar: (1) When the interference is by fraud; (2) when it is without fraud or force (actually applied or reasonably apprehended), but prompted by a motive to injure the aggrieved party; (3) when it is unaccompanied by what are ordinarily considered illegal acts or motives, and is induced solely by a desire of the defendant to promote his own welfare.

1. It is well established that the inherent right of every man to freely deal, or refuse to deal, with his fellowmen is not to be destroyed or abridged by acts involving the elements of the common-law action for deceit. This is not denied. On this branch of the case the defendant relies upon the proposition that the facts are not made out. lie concedes, as he plainly must concede, that the law is in favor of the plaintiff's position, provided only that there is evidence to support the several necessary findings. As before stated, there was evidence in this case which, if believed by the jury, would lead to the conclusion that the defendant was guilty of fraud. It could be found that the plaintiff quit the defendant's employ in an honorable manner; that the defendant, with knowledge of the facts, represented that the plaintiff's departure was dishonorable; that this was done with the intent to cause the new employer to act to the plaintiff's damage, and that such damaging action resulted from this cause. The plaintiff was entitled to go to the jury upon the issue of fraud.

2. Whether motive (when falsehood is absent) is a material element in these cases is a question upon which the authorities are not so fully agreed. That it is material, and that where malice, or a purpose to do the plaintiff injury, is the moving force to the commission of the act, a recovery may be had is the rule in many jurisdictions. Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669; 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; Ertz v. Produce Exchange, 79 Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433; Bowen v. Hall, 6 Q. B. Div. 333. The rule is well stated in a recent case in California: "Any injury to a lawful business, whether the result of a conspiracy or not, is prima facie actionable, but may be defended upon the ground that it was merely the result of a lawful effort of the defendants to promote their own welfare. To defeat this plea of justification, the plaintiff may offer evidence that the acts of the defendants were inspired by express malice, and were done for the purpose of injuring the plaintiff, and not to benefit themselves. The principle is the same which permits proof of express malice to defeat the plea of privilege in libel, or the defense of probable cause in actions for malicious prosecution or false imprisonment." J. F. Parkinson Co. v. Trades Council, 154 Cal. 581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550. The opposite view is taken by high authority. Macauley v. Tierney, 19 R. I. 255, 33 Atl. 1, 37 L. R. A. 455, 61 Am. St. Rep. 770; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L R. A. 337, 40 Am. St. Rep. 319; Judge Jeremiah Smith in 20 Harv. Law Rev. 451, et seq.

For the reason above indicated, and others which will be given in the discussion of the next issue in this case, it is held that a statement of the truth, made for the sole purpose of damaging the plaintiff by causing a third party to refuse to further deal with the plaintiff, is actionable if damage ensues. The state of mind of an offending person may be proved in various ways. It may appear that there was no good reason for doing the act. In that case, malice may be inferred from the proved absence of other motive for the act done. In case there be a sufficient justifiable motive, it may still be proved that in fact malice was the moving force. In either case the question is one of fact. There was in the case at bar sufficient evidence to support a finding that the defendant did what he did for the sole purpose of depriving the plaintiff of the benefit of a contract for employment. The question is not what the defendant now says his purpose was. It is not even what he said his purpose was at the time he made the complaint to Trull. Nor is his motive necessarily to be found in a literal application of the words he used. The conversation as testified to was susceptible of more than one interpretation. It may have meant that the defendant intended to cause the plaintiff to be discharged as a matter of small revenge, and while the defendant was formally protesting against the act he had intentionally and maliciously caused. It is not, as the defendant claims, a case of guessing. It is one of interpreting the acts and words disclosed by the evidence in the case. Upon this issue the case should have been submitted to the jury, under instructions that if they found the act was done solely for the purpose of injuring the plaintiff he was entitled to recover. If the damage was done "for its own sake," liability would be made out. Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St Rep. 443, dis. op. of Holmes, J.

3. Beyond the issues of fraud and mall-fious injury lies one which has caused much of perplexity and conflicting adjudication. How far advantage may or may not lawfully be gained by appeal, persuasion, or threat of loss of future favor—whether those not involved in the initial contest may be dragged into it by these and kindred means—are questions which courts, jurists, and publicists have not found it easy to answer. Between the early view that a peaceful strike for higher wages was inherently wicked (King v. Journeymen Tailors of Cambridge, 8 Mod. 11; In re Journeymen Cordwalners, Yates, Sel. Cas. 111, 277) and the theory that all honest and peaceful means are permissible (dis. op. Vegelahn v. Guntner, supra), there is room for every shade of opinion. "It will be seen that in the different courts there is considerable variety and some conflict of opinion." Berry v. Donovan, 168 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499. Cases where the act complained of...