Lally v. Cantwell

• Decision Date: 24 April 1888
• Citation: 30 Mo.App. 524
• Parties: JOHN LALLY, Appellant, v. THOMAS CANTWELL, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 524

JOHN LALLY, Appellant, v. THOMAS CANTWELL, Respondent.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Reversed and remanded.

F. A C. MCMANUS, for the appellant: The privilege granted to a citizen of this state to prosecute whatever lawful occupation he may desire, free from unlawful or wrongful molestation or interference, is a constitutional right, and he must seek his redress in the proper court. Const. Mo., art. 2, secs. 4, 10. The undue interference of defendant in the affairs of plaintiff was a wrong and an unlawful act. Bill of Rights art. 2; Const. of Mo., sec. 5; Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555. The petition clearly shows an invasion of the individual civil rights of the plaintiff by defendant, which differs materially from the mere intermeddling of a business rival. McCann v. Wolf, 28 Mo.App. 447. Fraudulent interference will support an action for the loss of a business favor or of customers. 7 Cush. 322; 66 N.Y. 82; Sid. 79; 4 Cowen 302; 15 Johns. 185; Cro. Jac. 323; 1 Taunt. 39; 3 Bulstr. 48. The petition alleges the " circular" was maliciously and publicly disseminated. Malice means an unlawful act done intentionally, without just cause or excuse. Rev. Stat., sec. 3512; 62 Mo. 350.

ROWE & MORRIS, for the respondent: The substantive averment against the respondent is, that he maliciously, wickedly, unlawfully, and fraudulently published and distributed the false, malicious, injurious, and defamatory circular. The words of the circular are not actionable per se. The circular could not be made to impute either an indictable offence or nefarious conduct. Such being the case special damages must be alleged and proved. Rammell v. Otes, 60 Mo. 365; Bundy v. Hart, 46 Mo. 460; Curry v. Collins, 37 Mo. 324; Berch v. Benton, 26 Mo. 153; Speaker v. McKenzie, 26 Mo. 255; Herman v. Bradstreet, 19 Mo.App. 227; Odgerson Libel and Slander, 293; 3 Sutherland on Damages, 666; Legg v. Dunlevy, 10 Mo.App. 461; 8 Mo. 558; Salvatelli v. Ghio, 9 Mo.App. 155. The facts averred in the appellant's petition do not make a boycott. Commonwealth v. Shelton, 11 Va. Law Jour. 329; State v. Glidden, 8 A. 890.

OPINION

THOMPSON J.

This appeal is prosecuted from the judgment of the circuit court sustaining a demurrer to the following petition: " Plaintiff states that defendant is a plumber by occupation, and doing business at No. 1004, Olive street, in the city of St. Louis, and state of Missouri; and that said defendant is a member of the ‘ Association of Master Plumbers,’ of the said city and state, one of the objects of which is, according to their printed constitution and by-laws, ‘ to promote amicable relations with employes on the basis of mutual interest and equitable justice to both journeymen and master plumbers, and to regulate the system of apprenticeship and employment, so as to prevent, as far as practicable, the evils growing out of deficient training in the responsible duties of selecting, arranging, and fitting up of materials relating to the hydraulic and sanitary conditions of dwellings, public and private institutions; ’ that the members, of whom the defendant is one, adopted a set of by-laws and promulgated the same for the use of their association and the guidance of their members, amongst which is article eleven, the one spoken of in the circular, which reads as follows: ‘ No member shall employ any helper or apprentice who has previously worked for another plumber without the written recommendation of the latter.’ That plaintiff, on or about January, 1884, commenced working for defendant, and steadily labored for him, with the exception of about six or seven weeks of said time, until on or about August, 1887, and received for his said employment various sums per week during all the time of his said engagement; that, on or about August, 1887, plaintiff and defendant had a misunderstanding, and in consequence thereof he (plaintiff) quit the employment of defendant and sought work elsewhere; that he obtained work with one Thomas Killoren, a plumber in this city; that thereupon, on or about September, 1887, the defendant herein, by fraudulent acts, had the following false, malicious, injurious, and defamatory circular, i. e. :

‘ St. Louis, September 27, 1887.

Dear Sir: John Lally, an apprentice in my shop, not out of his time, quit work without cause on August 1. If he is working for you now, or applies for work, you will understand the situation. Article eleven of the by-laws covers the case.

Respectfully,

THOMAS CANTWELL, Plumber, 1004 Olive St.'

Unlawfully drafted and publicly and unlawfully distributed throughout the city of St. Louis; and, with a design to injure this plaintiff, he especially caused the said circulars to be delivered to the gentleman in whose employ the plaintiff was at the time engaged, thus by his fraudulent acts leading him and the members of said association to believe that plaintiff was an apprentice of said Cantwell and not out of his time. And defendant, together with and by his agents, employes, and others, and also through the aid of the United States mail, with the intention of injuring this plaintiff in his good name and character as a workman at the plumbing trade, maliciously caused said false, injurious, and defamatory circular to be unlawfully and publicly distributed to all the plumbers of the city; thus fraudulently leading them to believe that the plaintiff was an apprentice of said Cantwell's not out of his time, when in truth and fact plaintiff never was an apprentice of said Cantwell's, nor did he leave the said Cantwell's employment without cause; that in consequence of the malicious, unlawful, and public distribution of said circulars, plaintiff was discharged from the employment of said Thomas Killoren, a plumber of said city; and although he has assiduously applied for work to a great number of persons engaged in the plumbing business in said city, he has, through the undue and fraudulent interference of defendant, been denied the privilege of engaging in his usual occupation, and this altogether through the malicious, wilful, and unlawful publication and uttering of the aforesaid false, injurious, and defamatory circulars by the defendant. And he further says that, by reason of the undue interference and fraudulent connivance of defendant, with the other members of said association, and by reason of the malicious, unlawful, wilful, and public distribution of the aforesaid false, malicious, injurious, and defamatory circulars, he was discharged from a pleasant and congenial employment; that his constitutional rights has (sic ) been ruthlessly invaded by the undue and fraudulent interference of defendant in the amicable relations that existed between plaintiff's employer and plaintiff; that he has been prevented from supporting himself at his trade, or by his free labor prohibited and prevented from supporting those dependent upon his exertions for the necessaries of life; and all this through the undue and fraudulent interference as aforesaid of defendant, to plaintiff's damage in the sum of twenty-five hundred dollars, for which sum he asks judgment, and for such other relief as to this court may seem meet and proper in the premises."

We are of opinion that this petition, although very unskillfully drawn and abounding in unnecessary epithets, repetitions, and arguments,-- states a cause of action. For the examination which we have been able to make of this question, we are indebted to two very learned and discriminating articles in the American Law Review, by Mr. Wigmore of Boston. 21 Am. Law Rev. 509, 764. This writer has shown by many precedents that interference with business relations through acts of violence, nuisance, threats, fraud, libel, or slander, have constantly been redressed in the English courts of law since the time of Bracton. 21 Am. Law Rev. 514, 516. The leading and most thoroughly considered modern case appears to be Keeble v. Hickeringill, Holt, 14; 3 Salk. 9; 11 Mod. 74, 130; 11 East, 573, note. In that case the defendant, by the repeated firing of guns, had frightened away wild fowl about to enter the plaintiff's decoy pond. Lord Holt conceded that if the defendant had merely set up a second decoy, no action would lie. But he held that it is otherwise, " where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood." The decision thus pronounced by that great judge appears to have been recognized, and applied or misapplied according to various facts or conceptions, in subsequent decisions in that country from that day to this. Carrington v. Taylor, 11 East, 571; Young v. Hichens, 6 Q. B. 605; Ibbotson v. Peat, 34 L. J. Exch. 118; Rogers v. Dutt, 13 Moore, P. C. 209.

Since the decision in Lumley v. Gye, 2 El. & Bl. 216 it seems to have been regarded as established law in England and in this country that an action will lie against a person who maliciously persuades another person to break a contract with, or to do some other injury to, the plaintiff, which is actionable. Bowen v. Hall, 6 Q. B. Div. 333; Gunter v. Astor, 4 Moore 12; Walker v. Cronin, 107 Mass. 555. It is upon this principle that an action lies for enticing away the plaintiff's servant ( Campbell v. Cooper, 34 N.H. 49; Bixby v. Dunlap, 56 N.H. 456; Glass Man. Co. v. Binney, 4 Pick. 425; Jones & Jeter v. Blocker, 43 Ga. 331; Salter v. Howard, 43 Ga. 604; Wharton v. Jossey, 46 Ga. 579; Gunter v. Astor, 4 Moore 12); or harboring him after he has deserted the plaintiff's employment (Dubois v. Allen, Anthon, 128; Dowd v. Davis, 4 Dev. 61;...