Johnson v. Ætna Life Ins. Co.

• Decision Date: 06 May 1914
• Docket Number: No. 37.,37.
• Citation: 147 N.W. 32,158 Wis. 56
• Parties: JOHNSON v. ÆTNA LIFE INS. CO.
• Court: Wisconsin Supreme Court

158 Wis. 56

147 N.W. 32

JOHNSON

v.ÆTNA LIFE INS. CO.

No. 37.

Supreme Court of Wisconsin.

May 1, 1914.

Dissenting Opinion May 6, 1914.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Frank E. Johnson against the Ætna Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss complaint.

On June 28, 1910, plaintiff, while in the employ of the Simmons Manufacturing Company, suffered an injury to his left eye. Thereafter he commenced an action against said company to recover damages for the injury sustained. The defendant herein appeared in that action (which is still pending) for the Simmons Manufacturing Company, in accordance with a contract of indemnity with such company. As soon as plaintiff recovered from his injury he resumed his employment and continued it until March, 1911, at which time he was discharged. This action was brought against the defendant to recover damages alleged to have been sustained by reason of the action of the defendant in procuring the discharge of plaintiff from his employment because of his refusal to settle his claim in accordance with the terms of the defendant insurance company. The answer denied the material allegations of the complaint.

The evidence tended to show that a short time before the plaintiff was discharged, an agent of the defendant called upon Mr. Vincent, the general manager of the Simmons Manufacturing Company, and suggested to him that the plaintiff be discharged. Following this interview, and on February 28, 1911, the agent of the defendant wrote a letter addressed to “Mr. W. W. Vincent, The Simmons Mfg. Co., Kenosha, Wis.,” as follows: “Dear Sir: Confirming our interview this morning regarding the above-entitled matter, I wish to call your attention to the fact that this injured has brought suit against your company, and the further fact that he is still in your employ. This situation, while it is one which is immaterial to us, and in no way affects us or affects the question of the injured's right to recover, is one which is full of possibilities of trouble to your company for the following reasons: It has the tendency to encourage litigation against your company by your employés for the reason that they feel that they can ‘take a chance’ at obtaining a judgment after they are injured and still lose nothing in the was of being out of employment. It furthermore gives them the opportunity to collect the necessary money with which to fight a lawsuit; in other words, you are furnishing them ‘sinews of war’ with which to fight yourself. While it is true, as you suggested, that the effect of showing that the company considers the matter one which they are fighting as a matter of principle; and that because they are right, the company is not small enough to consider the fact that a man is fighting it a reason for discharging him, still these facts could not under our rules of evidence be shown at the time the matter is tried for the reason that they are irrelevant. We wish merely to call this fact to your attentions, so that you may consider whether it is in accord with your best interests that your employés get the idea that they can undertake to collect damages from you and at the same time remain in your employ, earning money with which to injure you. As for ourselves, as I have stated to you, we are not interested one way or the other. It is entirely immaterial to us, and we make no recommendations one way or the other. We merely submit the matter to your good judgment.”

Simmons testified that he was not present at the interview with the defendant's agent; that he never saw the letter until a short time before the trial; that he knew nothing of the request made by the defendant; and that he ordered the plaintiff discharged on his own motion, and not because of any action taken by the defendant. His evidence was corroborated by the general superintendent, Vincent. Other facts will be more fully stated in the opinion.

The jury answered all of the questions in the special verdict in favor of the plaintiff, and among other things found that plaintiff's discharge was proximately caused by the defendant. The jury assessed the plaintiff's compensatory damages at $294 and his punitory damages at $5,000. In lieu of the granting of a new trial plaintiff was permitted to remit $4,000 punitory damages, and judgment was entered on the verdict as amended.

Timlin and Kerwin, JJ., dissenting.

Harper & McMynn, of Milwaukee (J. E. Dodge, of Milwaukee, of counsel), for appellant.

William L. Tibbs and Rossiter Lines, both of Milwaukee, for respondent.

BARNES, J. (after stating the facts as above).

This appeal presents two questions: (1) On the facts found by the jury, was the plaintiff entitled to judgment? (2) Has the finding of causal connection between the acts complained of by the plaintiff and his discharge sufficient support in the evidence?

[1] 1. The first question must be resolved in favor of the plaintiff. We agree with defendant's counsel that if their client was justified in doing what it did in the way of procuring Johnson's discharge, the fact that it acted from malicious motives would not give a right of action. The presence of malice would permit the recovery of punitory damages, if defendant acted without justification, but would not in itself create a cause of action where none existed without it. Malice makes a bad case worse, but does not make wrong that which is lawful. This question is definitely set at rest by a number of decisions in this court. Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841;Sullivan v. Collins, 107 Wis. 291, 299, 83 N. W. 310;Marshfield L. & L. Co. v. John Week L. Co., 108 Wis. 268, 274, 84 N. W. 434;Madden v. Kinney, 116 Wis. 561, 569, 93 N. W. 535;Huber v. Merkel, 117 Wis. 355, 363, 94 N. W. 354, 62 L. R. A. 589, 98 Am. St. Rep. 933;Loehr v. Dickson, 141 Wis. 332, 335, 124 N. W. 293, 30 L. R. A. (N. S.) 495.

[2] But the plaintiff had the right to dispose of his labor wherever he could to the best advantage. This is a legal right entitled to legal protection. Such right could be interfered with by one acting in the exercise of an equal or superior right. As against all others, the plaintiff was entitled to go his way without molestation; and, if any one assumed to meddle in his affairs, he did so at his peril. There is practically little conflict in the cases on this point. Walker v. Cronin, 107 Mass. 555, 564;Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 30;Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289;Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738;Lopes v. Connolly, 210 Mass. 487, 97 N. E. 80, 38 L. R. A. (N. S.) 986;Hanson v. Innis, 211 Mass. 301, 97 N. E. 756;Brennan v. United Hatters, 73 N. J. Law, 729, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698;Ruddy v. United Ass'n, etc., 79 N. J. Law, 467, 75 Atl. 742;Chambers v. Probst, 145 Ky. 381, 140 S. W. 572, 36 L. R. A. (N. S.) 1207;Lucke v. Clothing Cutters, etc., Assembly, 77 Md. 396, 26 Atl. 505, 19 L. R. A. 408, 39 Am. St. Rep. 421;Hollenbeck v. Ristine, 114 Iowa, 358, 86 N. W. 377;Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129, 118 Am. St. Rep. 152, 8 Ann. Cas. 375;London Guaranty Co. v. Horn, 206 Ill. 493, 69 N. E. 526, 99 Am. St. Rep. 185;Gibson v. Fidelity & Casualty Co., 232 Ill. 49, 83 N. E. 539;Illinois Steel Co. v. Brenshall, 141 Ill. App. 36;Chipley v. Atkinson, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep. 367.

[3] Undoubtedly cases might arise where an insurer such as the defendant might be justified in saying to the insured that it would cancel its policy unless a certain employé was discharged. Such employé might be so careless of his own safety or the safety of his fellow servants that the insurer might not care to assume the added hazard that would be liable to follow from such conduct. We have no such case before us, however. The jury might well find in the present case that the purpose which the defendant had in mind was to deprive the plaintiff of his earning power so that he could not successfully carry on his suit to recover damages for the injuries which he had received. This savors too strongly of oppression to be considered a legitimate reason for a third party interfering with the relations between employer and employé.

[4] 2. On the second question raised, we think the defendant should prevail. Johnson was a day-laborer who had the right to quit work at any time without breaching his contract of employment. His employer might dispense with his services at any time for or without cause. This being so, if the employer reached the conclusion that it was not good business policy to keep in its employ men who were suing it, it was acting within its legal rights. We do not see how the Simmons Company or its officers have any interest, near or remote, in the present controversy. We think the president of the company, and the former general superintendent of it, who, by the way, was not in its employ when this action was tried, stood before the court and jury in no other light than that of disinterested witnesses. We do not think their testimony could be disregarded by the jury, where it was uncontradicted, unless the evidence itself was inherently improbable, or unless something was shown that warranted the jury in concluding that they testified falsely, and it may be said willfully so testified, because if their testimony was in fact untrue, there is little room for saying that it was the result of an honest mistake.

[5] The plaintiff might have been discharged because he was careless of his own safety or of that of his fellow workers in the manner of doing his work, or because he was not competent or faithful, or because he had sued his employer, or because the...