Wesley v. Native Lumber Company

• Decision Date: 17 October 1910
• Citation: 53 So. 346,97 Miss. 814
• Court: Mississippi Supreme Court
• Parties: BENTON M. WESLEY v. NATIVE LUMBER COMPANY ET AL

53 So. 346

97 Miss. 814

BENTON M. WESLEY v. NATIVE LUMBER COMPANY ET AL

Supreme Court of Mississippi

October 17, 1910

FROM the circuit court of Harrison county, JAMES H. NEVILLE Special Judge.

Wesley appellant, was plaintiff in the court below; the lumber company and another, appellees, were defendants there. From a judgment sustaining the defendant's demurrer to the declaration and dismissing the suit, the plaintiff appealed to the supreme court.

Appellant Wesley, sued the appellees, Native Lumber Company, a corporation under the laws of this state, and its manager Thos. A. Gause, for damages for willfully and maliciously injuring and destroying his mercantile and barber business. A demurrer to the declaration was sustained, and the suit dismissed, from which judgment this appeal is prosecuted.

The two counts in the declaration are in all respects the same, except as to the business charged to have been injured and destroyed; one being that of a merchant, and the other that of a barber. The first count is as follows:

"Benton M. Wesley, a resident of Harrison county, Mississippi, plaintiff, by his attorney, complains of the Native Lumber Company, a corporation incorporated under the laws of the state of Mississippi and domiciled at Howison, Harrison county, Mississippi, and Thos. A. Gause, a resident of Howison, Harrison county, Mississippi, in an action of trespass on the case: For that, whereas, the plaintiff, Benton M. Wesley, was, on or about the 1st day of February A. D. 1909, engaged in the mercantile business at Howison, Harrison county, Mississippi, and has continued to carry on a retail mercantile business at Howison, Mississippi, since on or about the 1st day of February, 1909, until the present time, and that his customers were the citizens residing and living around the village of Howison, Harrison county, Mississippi, who patronized his store and bought their goods, wares, and merchandise of various kinds from plaintiff, whereby plaintiff was enabled to sell his goods at a good profit, and make a support for himself and family, and pay his bills as the same became due and payable. That the Native Lumber Company was and is now a corporation under the laws of Mississippi, domiciled at Howison, and was and is engaged in the lumber business, operating a sawmill and logging railroad and employing a large number of laborers, who were customers of plaintiff in his mercantile business. That Thos. A. Gause was and is now employed as manager of the said Native Lumber Company, and is engaged in its service in carrying on said business, and that on or about the 1st day of February, 1909, and continuously since that date, the said Native Lumber Company and the said Thos. A. Gause conspired and with malice aforethought connived for the express purpose of injuring plaintiff in his business, forbid any of the large number of the employes, then engaged in operating the sawmills, lumber and logging business of the defendant corporation, at Howison, Mississippi, from patronizing said plaintiff's store or buying wares, merchandise, or goods from plaintiff, and forbid plaintiff from soliciting trade from said employes, thereby intending to injure the business and earning of plaintiff, and did notify said employes that if they patronized plaintiff, Benton M. Wesley, that they would be discharged from their employ, and that thereafter, in pursuance of said threat, defendants did discharge a number of said employes from their employ, because the said employes continued to patronize plaintiff's store, the said defendants then willfully and maliciously intending to injure plaintiff in said business by said unlawful acts, and that by reason of said arbitrary, fraudulent, and willful conduct on the part of the said Native Lumber Company and said Thos. A. Gause, plaintiff lost customers whose trade had been worth prior to said date, and would have continued to have been worth, to plaintiff at least nine dollars per week clear profit. Wherefore plaintiff was then and there, on or about the 1st day of February, 1909, injured, and has continued to be injured, and is yet and still continues to be injured, at the rate of at least nine dollars per week actual loss on profit on trades to the divers and sundry employes of the said Native Lumber Company, who were his customers in business and who would have continued to be his customers, except for the aforesaid conduct of said defendants. Wherefore plaintiff is greatly damaged by defendants' wrongful conduct, in the sum of $ 5,000, for which he brings this suit and demands judgment."

Reversed and remanded.

T. M. Evans, for appellant.

The demurrer in this case admits that the wrongs and in the direct cause. It cannot be said that no action lies as is injure plaintiff; and the demurrer further admits that the plaintiff was injured by said wrong in the sum of at least nine dollars per week under the first lount and at least nine dollars per week under the second count. No right of action could accrue to plaintiff against his customers because there was no contract existing between them, yet the demurrer admits the injury and the direct cause. It cannot be set up that no action lies as is insisted by appellees because the appellees had the right to discharge the employes. This suit is not an action to recover damages for the wrongful discharge of anybody, the discharge or threat to discharge being only an incident. Such threat is only an expression of the means used to prevent the appellant from selling his goods, wares and merchandise, or more properly speaking, to prevent the employes who were appellant's customers from buying plaintiff's goods, wares and merchandise. There is no complaint that appellee's employes were injured. The complaint is that appellant was injured by the loss of trade from people with whom he had no contractural relation, and against whom he can claim no damage; that the damage was caused by appellee's wilfull and malicious act, done expressly for the purpose of injuring plaintiff in his business and which is admitted by the demurrer.

Howison is a mill town on the Gulf & Ship Island Railroad, and, like all other mill towns is populated almost entirely by the or threat to discharge being only an incident, such threat is only employes of the mills, in this instance owned by the Native Lumber Company; and like all other mill towns, affords scant employment or means of...