W. E. Stewart Land Company v. Perkins

• Decision Date: 19 November 1921
• Citation: W. E. Stewart Land Company v. Perkins, 290 Mo. 194, 234 S.W. 653 (Mo. 1921)
• Parties: W. E. STEWART LAND COMPANY, Appellant, v. S. P. PERKINS
• Court: Missouri Supreme Court

234 S.W. 653

290 Mo. 194

W. E. STEWART LAND COMPANY, Appellant, v. S. P. PERKINS

Supreme Court of Missouri, Second Division

November 19, 1921

Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.

Reversed and remanded.

W. F Zumbrunn, E. E. Bowers, D. C. Mayer, and F. S. Stratton for appellant.

(1) It was error for the court to sustain the demurrer to plaintiff's amended petition. Bixby v. Dunlap, 56 N.H. 456; Jackson v. Stanfield, 137 Ind. 592; Door Co. v. Fuella, 215 Mo. 446; Chipley v Atkinson, 23 Fla. 210; Dels v. Winfrey, 80 Tex 405; Walker v. Cronin, 107 Mass. 564; Carey v. Rutherford, 106 Mass. 10. (2) The court committed error in holding that it was necessary to charge that force and intimidation were used in attempting to divert business from plaintiff -- the court failing to distinguish between those cases recognizing certain acts as legitimate means to further a lawful end, from those cases where similar acts are condemned, because the one committing them had no lawful purpose or end in view. In labor union cases this court recognizes the right of members to solicit the public's refusal to treat with a boycotted concern, holding in effect, that peaceful means, thus employed, is a legitimate method of furthering the ends of a lawful purpose. That is to say, our courts recognize labor unions' rights to so act; conversely, one having no rightful purpose in view cannot interfere with the prosecution of a lawful enterprise, because in thus interfering with one's lawful business, the offender thereby employs an unlawful means to further an illegal end.

John Kennish and Daniel C. Ketchum for respondent.

(1) The petition fails to state facts sufficient to constitute a cause of action. (2) Malice without unlawful acts will not support the action. Land & Gravel Co. v. Commission Co., 138 Mo. 445; State ex rel. v. Dreyer, 183 Mo.App. 496 Chipley v. Atkinson, 23 Fla. 206; Allen v. Flood, 67 L. J. Q. B. (N. S.) 119. (3) Force or intimidation is essential in an action for damages for interfering with business. Root v. Anderson, 207 S.W. 255; Marx & Haas Co. v. Watson, 168 Mo. 133; In re Heffron, 179 Mo.App. 639; St. Louis v. Gloner, 210 Mo. 502; Wolf v. Harris, 267 Mo. 405. (4) Failure to allege time and place renders plaintiff's petition demurrable. 25 Cyc. 446.

REEVES, C. Railey and White, CC., concur. Walker J., concurs; D. E. Blair, J., and Higbee, P. J., concur in result.

OPINION

REEVES, C. --

This is an action for maliciously interfering with a lawful occupation, commonly called an action on the case. A general demurrer to appellant's amended petition was sustained by the trial court and, standing on the petition, appellant has brought its case to this court, which it may properly do because the amount sued for is within our jurisdiction. The petition is as follows:

"1. For amended cause of action plaintiff states that it is a duly organized and existing corporation, organized and existing under the laws of the State of Missouri.

"2. That at all times herein mentioned, plaintiff has been engaged in the general immigration and colonization business, and in said business operates its own private cars and trains in taking prospective buyers to and from its lands, located in and about McAllen, Texas; that in assembling and congregating its prospective customers for the purpose of making up its special trains, the plaintiff through its agency force, brings such prospective buyers from different points throughout the United States to Kansas City (the latter point being the assembling point), and at Kansas City, said special train is made up of such prospective purchasers and taken to the location of plaintiffs lands for the purpose of making a physical inspection thereof.

"3. That at all times herein mentioned the defendant knew the business in which plaintiff was engaged and knew the general plan plaintiff used in the conduct of its business in the sale of its lands, and knew the method obtainable of congregating buyers for the purpose of being conducted to the situs of said lands with a view of making sales of portions thereof, and defendant knew that any activity which would create suspicion or mistrust or a lack of confidence in the plan on the part of its prospective customers would be injurious to plaintiff and its business. Defendant also knew at all times herein mentioned, a large number of customers who had purchased lands of the plaintiff who were under contract to pay it sums of money growing out of various transactions respecting the sale of portions of plaintiff's land.

"4. That the defendant is not and never has been engaged in the real estate or immigration business and is not and never has been interested in plaintiff's business; that at all times mentioned the defendant, having no useful or lawful purpose to serve but for reasons known alone to himself, did, intending to harass, annoy, persecute, injure, destroy and otherwise interfere with the due prosecution of plaintiff's business, enter into a conspiracy with certain unknown representatives and stool pigeons of defendant's and did and has continuously circulated in and among plaintiff's prospective customers and did and has and still does induce, procure, persuade and entice plaintiff's customers to have no business relations or transactions with plaintiff, and defendant and his unknown confederates have gone out into various territories wherein plaintiff had an active agency force and was actively engaged in the prosecution of its business, and there among the public at large and plaintiff's prospective customers did procure, persuade and induce the public at large and plaintiff's customers to refrain from doing business with plaintiff, and defendant has at the same time, in connection with his unknown confederates, procured, induced, sought and persuaded all of plaintiff's customers who had theretofore had business relations with it, to break their contract, and refuse to further treat with plaintiff or to pay plaintiff the sums of money required by the various contracts had with various customers.

"That when defendant and his unknown confederates were attempting to persuade, induce and procure plaintiff's customers to cease business relations with it, and plaintiff's prospective customers to refuse to treat with it, the defendant and his unknown confederates would, while engaged in said wrongful and unlawful undertaking, say to such customers and prospective customers, while attempting to interfere, harass, annoy and destroy plaintiff's business, in substance as follows: 'That plaintiff's lands were no good; that plaintiff was bankrupt and engaged in a fraudulent undertaking,' and many similar utterances, the language of which is unknown to plaintiff, but which were a part of the general plan of conspiracy among defendant and his confederates to injure and destroy plaintiff's business.

"5. That as a direct result of the unlawful malicious and wrongful purposes on the part of defendant and his unknown confederates, plaintiff has been drawn into a large amount of vexations litigations and its business injured in the sum of thirty thousand dollars.

"6. That plaintiff is engaged in a lawful undertaking and is entitled to lawfully and peaceably pursue its business and to be protected in its business property and property rights, and this plaintiff charges that the acts of defendant and his unknown confederates constitutes unwarranted and malicious interference with the due prosecution of plaintiff's business and is a trespass and injury to the property rights and business of this plaintiff.

"7. That the actions of defendant and his unknown confederates were and are prompted by malice and all acts charged herein were done maliciously, without legal justification or excuse.

"Wherefore, plaintiff prays that it may have and recover judgment against the defendant in the sum of thirty thousand dollars as compensatory damages, and the further sum of fifteen thousand dollars as punitive damages, with costs of suit."

From the briefs filed in the cause we understand that the court below sustained the demurrer to appellant's petition upon the grounds, first, because the conduct and acts of defendant did not involve, according to the allegations of the petition, the elements of force or intimidation; second, because the gravamen of the charges is malice unaccompanied by unlawful acts; and, third, because the petition alleges neither time nor place of the performance of the acts complained against.

We may dispose of the last contention by saying that a motion to make more definite and certain would reach the defect complained against, rather than a general demurrer.

A careful reading of the petition will disclose that it clearly charges that appellant was engaged in the transaction of a lawful business and that while so engaged in the transaction of its appropriate business the respondent without cause or excuse, and, actuated alone by malice conspired with others, not named, to interfere with and destroy appellant's said business, and in pursuance of such conspiracy has actually interfered with and damaged ap...