Part 2 — CHAPTER VIII INTERFERENCE WITH ADVANTAGEOUS RELATIONS (continued 5)

939Defendants appealed from the judgment.

McFarland, J. [After discussing the question of motive.]

... Under the facts found we cannot see how the lawfulness of the acts enjoined can depend upon the motives by which they were done, or may be done in the future.

It is found that the defendants did fell trees on their lands, and threatened to fell more, the effect of which was, and would be, to let in the sun and winds, and thus increase evaporation.

It is quite apparent that cutting trees upon one’s own land is a lawful act, which cannot be restrained because it “lets in the sun” and causes more evaporation; any incidental damage which might come to a lower riparian owner from such lawful act would clearly be damnum absque injuria.

Judgement reversed.

Temple, J., and Henshaw, J., concurred.

ALLEN v. FLOOD In the House of Lords, December 14, 1897. Reported in [1898] Appeal Cases, 1.

The plaintiffs (now the respondents), Flood and Taylor, are members of the Shipwrights’ Provident Union.^[593] The defendant (now the appellant), Allen, is a member and the London delegate of the Independent Society of Boilermakers and Iron and Steel Shipbuilders. The latter society restricts the labor of its members to ironwork. The society of shipwrights permits its members to work either in wood or iron. The members of the boilermakers’ society are accustomed to claim that the proper business of shipwrights is to work in wood only, and that shipwrights who work in iron are trespassing on the trade of the boilermakers’ union.^[594]

In April, 1894, about forty men of the boilermakers’ society were engaged at the Regent Dock, Millwall, in repairing an iron ship, on the employment of the Glengall Iron Company. Flood and Taylor were at the same time employed by the Glengall Company to execute repairs upon the woodwork of the vessel. By the terms of their employment they were entitled to leave at the close of any day; and the Glengall Company might, at the close of any day cease to employ them further. The ironworkers were employed on similar terms.^[595]

940The boilermakers, on discovering that Flood and Taylor had shortly before been employed by another firm (Mills & Knight) on the Thames in doing ironwork on a ship, became much excited, and began to talk of leaving their employment. One of them telegraphed for Allen, their London delegate. Allen came, dissuaded them from leaving work at dinner-time, and told them that they must wait and see how things were settled. Allen then had an interview with Halkett, the Glengall Company’s manager. As to what took place at this interview, the testimony at the subsequent trial was conflicting. The version most favorable to the plaintiffs was substantially as follows:—

Allen told Halkett that he (Allen) had been sent for because Flood and Taylor were known to have done ironwork in Mills & Knight’s yard, and that unless Flood and Taylor were discharged all the members of the boilermakers’ society would be “called out” or “knock off” work that day; that Halkett had no option; that there was no ill-feeling towards the Glengall Company or towards Flood and Taylor personally,^[596] but that the iron-men were doing their best to put an end to the practice of Shipwrights doing ironwork, and that wherever these men were employed, or other shipwrights who had done ironwork, the boilermakers would cease work,—in every yard on the Thames.

If the boilermakers had been called out, it would have stopped the Glengall Company’s business. For fear that the threat would be carried out, Halkett discharged Flood and Taylor at the close of the day.

An action was then brought by Flood and Taylor against three persons, viz., Allen, the London delegate; Jackson, the chairman; and Knight, the general secretary of the Boilermakers’ Society.^[597] The plaintiffs’ allegations were: that the defendants, maliciously and wrongfully and with intent to injure the plaintiffs, procured and induced the Glengall Company to break their contract with the plaintiffs and not to enter into new contracts with them; and also, maliciously, etc., intimidated and coerced the Glengall Company to break their contract with plaintiffs and not to enter into new contracts, and also unlawfully and maliciously conspired with others to do the above acts.

The case was tried by jury before Kennedy, J.

The learned judge ruled that there was not “a shred of evidence of any conspiracy at all;” that there was “no evidence of anything amounting to intimidation or coercion in any legal sense of the term;”^[598] and that there was no breach of contract.

The following questions, among others, were put to the jury:—

1. Did the defendant Allen maliciously induce the Glengall Iron Company to discharge the plaintiffs or either of them from their employment?

2. Did the defendant Allen maliciously induce the Glengall Iron Company not to engage the plaintiffs or either of them?

In putting these questions to the jury, Kennedy, J., gave some explanations, portions of which are, in substance, as follows:^[599] “The word ‘malice’ is a word of art in law, and it does not mean in this case a personal dislike, a personal feeling of resentment against the two plaintiffs. It is clear from the 941evidence of the men and of their employers that there was no such personal feeling in this case. The question that I want you to answer is, that, if you find he induced the Glengall Iron Company, by the threat which is suggested by the plaintiffs of calling out all the men on strike, did he do that with the malicious intention which I have endeavored to explain, that is, merely, not for the purpose of forwarding that which he believed to be his interest as a delegate of his union in the fair consideration of that interest but for the purpose of injuring these plaintiffs, and preventing them doing that which they were each of them entitled to do. ‘Maliciously’ means, connected with the word ‘induce,’ this,—that it was not for the mere purpose of forwarding fairly Allen’s own interests, but from the indirect motive of doing a mischief to the plaintiffs in their lawful business.”

The jury answered both questions in the affirmative; and also found that each plaintiff had suffered 20l. damages.

After consideration, Kennedy, J., entered judgment for the plaintiffs against Allen for 40l. This decision was affirmed by the Court of Appeal (Lord Esher, M. R., Lopes and Rigby, L.JJ.); L. R. (1895) 2 Q. B. 21.

Against these decisions, Allen brought the present appeal to the House of Lords. The appeal was first argued in December, 1895. Their Lordships having required further argument, the appeal was reargued in March and April, 1897. The following Judges were summoned to attend^[600] at the second argument: Hawkins, Mathew, Cave, North, Wills, Grantham, Lawrence, and Wright, JJ.

At the close of the arguments, the following question was propounded to the Judges: Assuming the evidence given by the plaintiffs’ witnesses to be correct, was there any evidence of a cause of action fit to be left to the jury?

Mathew, J., and Wright, J., answered the question in the negative; and the other six Judges in the affirmative.

After the delivery of the opinions of the Judges, the House took time for consideration.

Dec. 14, 1897. Lord Halsbury, L. C.... The first objection made to the plaintiff’s right to recover for the loss which they thus undoubtedly suffered is that no right of the plaintiffs was infringed, and that the right contended for on their behalf is not a right recognized by law, or, at all events, only such a right as every one else is entitled to deprive them of if they stop short of physical violence or obstruction. I think the right to employ their labor as they will is a right both recognized by the law and sufficiently guarded by its provisions to make any undue interference with that right an actionable wrong.

Very early authorities in the law have recognized the right; and, in my view, no authority can be found which questions or qualifies it. The schoolmaster who complained that his scholars were being assaulted and brought an action, the quarry owner who complained that his servants were being menaced and molested, were both held to have a right of action. And it appears to me that the importance of those cases, and the principle established by them, have not been sufficiently considered. It is said that threats of violence or actual violence were unlawful means: the lawfulness of the means I will discuss hereafter. But the point on which these cases are important is the 942existence of the right. It was not the schoolmaster who was assaulted; it was not the quarry owner who was assaulted or threatened; but, nevertheless, the schoolmaster was held entitled to bring an action in respect of the loss of scholars attending his school, and the quarry owner in respect of the loss of workmen to his quarry. They were third persons; no violence or threats were applied to them, and the cause of action, which they had a right to insist on, was the indirect effect upon themselves of violence and threats applied to others.

My Lords, in my view these are binding authorities to show that the preliminary question, namely, whether there was any right of the plaintiffs to pursue their calling unmolested, must be answered in the affirmative. The question of what is the right invaded would seem to be reasonably answered, and the universality of the right to all Her Majesty’s subjects seems to me to be no argument against its existence. It is, indeed, part of that freedom from restraint, that liberty of action, which, in my view, may be found running through the principles of our law.

First it is said that the company were acting within their legal rights in discharging the plaintiffs. So they were; but does that affect the question of the responsibility of the person who caused them so to act by the means he used? The scholars who went away from the school were entitled to do so. The miners were entitled to cease working at the quarry. The natives were entitled to avoid running the risk of being shot; but the question is, What was the cause of their thus exercising their legal right?

The question must be whether what was done in fact, and what did in fact procure the dismissal of the plaintiff, was an actionable wrong or not. I have never heard that a man who was dismissed from his service by reason of some slander could not maintain an action against the slanderer because the master had a legal right to discharge him.

It will be observed that Kennedy, J., draws a distinction between the conduct which he assumes to be lawful on Allen’s part to do what he did do if it were merely for the purpose of forwarding that which he believed to be his interest as a delegate of his union in fair consideration of that interest on the one hand, and on the other hand his conduct if what he did was done for the purpose of injuring these plaintiffs.

My Lords, it appears to me that that is a direction of which the defendants cannot complain, since it puts what is to my mind an alternative more favorable to them. In my view, his belief that what he was doing was for his interest as a delegate of his union would not justify the doing of what he did do. It is alleged, and to my mind and to the mind of the jury proved, that the employers were compelled under pressure of the threats that he used to discharge the plaintiffs.

But the objection made by the defendants appears to be that the word “malicious” adds nothing; that if the thing was lawful it was lawful absolutely; if it was not lawful it was unlawful,—the addition of the word “malicious” can make no difference. The fallacy appears to me to reside in the assumption that everything must be absolutely lawful or absolutely unlawful. There are many things which may become lawful or unlawful according to circumstances.

943In a decision of this House it has undoubtedly been held that whatever a man’s motives may be, he may dig into his own land and divert subterranean water which but for his so treating his own land might have reached his neighbor’s land. But that is because the neighbor had no right to the flow of the subterranean water in that direction, and he had an absolute right to do what he would with his own property. But what analogy has such a case with the intentional inflicting of injury upon another person’s property, reputation, or lawful occupation? To dig into one’s own land under the circumstances stated requires no cause or excuse. He may act from mere caprice, but his right on his own land is absolute, so long as he does not interfere with the rights of others.

But, referring to Bowen, L. J.’s observation, which to my mind is exactly accurate, “in order to justify the intentional doing of that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person’s property or trade,” you must have some just cause or excuse.

Now, the word “malicious” appears to me to negative just cause or excuse; and without attempting an exhaustive exposition of the word itself, it appears to me that, if I apply the language of Bowen, L. J., it is enough to show that this was within the meaning of the law “malicious.”

It appears to me that no better illustration can be given of the distinction on which I am insisting between an act which can be legally done and an act which cannot be so done because tainted with malice, than such a colloquy between the representative of the master and the representative of the men as might have been held on the occasion which has given rise to this action. If the representative of the men had in good faith and without indirect motive pointed out the inconvenience that might result from having two sets of men working together on the same ship, whose views upon the particular question were so diverse that it would be inexpedient to bring them together, no one could have complained; but if his object was to punish the men belonging to another union because on some former occasion they had worked on an iron ship, it seems to me that the difference of motive may make the whole difference between the lawfulness or unlawfulness of what he did.

I see it is suggested by one of your Lordships that the action for malicious prosecution is supposed to be an exception. I am not quite certain that I understand what is the proposition to which it is an exception. If it means that there is no other form of procedure known to the law wherein malice may make the distinction between a lawful and an unlawful act, I am unable to agree. Maliciously procuring a person to be made a bankrupt, maliciously and without reasonable or probable cause presenting a petition to wind up a company, or maliciously procuring an arrest, are equally cases wherein the state of mind of the person procuring the arrest may affect the question of the lawfulness or unlawfulness of the act done.

Again, in slander or libel the right to preserve one’s character or business from attack appears to me quite as vague and general a right as it is suggested is the right to pursue one’s occupation unmolested; and it cannot be denied that in both these cases the lawfulness or unlawfulness of what is said or written may depend upon the absence or presence of malice.

Doubtless there are cases in which the mere presence of malice in an act done will not necessarily give a right of action, since no damage may result; and in this case, however malicious Allen’s intervention may have been, if the 944employers had defied Allen’s threats instead of yielding to them, the plaintiffs could not have succeeded in an action, because they would not have been injured: see Quartz Hill Co. v. Eyre, 11 Q. B. D. 674; Gibbs v. Pike, 9 M. & W. 351; Jenings v. Florence, (1857) 2 C. B. (N. S.) 467.

Lord Watson.... There is no expression in the verdict which can be held, either directly or by implication, to impeach the legality of the company’s conduct in discharging the respondents. The mere fact of an employer discharging or refusing to engage a workman does not imply or even suggest the absence of his legal right to do either as he may choose. It is true that the company is not a party to this suit; but it is also obvious that the character of the act induced, whether legal or illegal, may have a bearing upon the liability in law of the person who procured it. The whole pith of the verdict, in so far as it directly concerns the appellant, is contained in the word “maliciously,”—a word which is susceptible of many different meanings. The expression “maliciously induce,” as it occurs upon the face of the verdict, is ambiguous: it is capable of signifying that the appellant knowingly induced an act which of itself constituted a civil wrong, or it may simply mean that the appellant procured, with intent to injure the respondents, an act which, apart from motive, would not have amounted to a civil wrong; and it is, in my opinion, material to ascertain in which of these senses it was used by the jury.

Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due. A wrongful act, done knowingly and with a view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law. There is a class of cases which have sometimes been referred to as evidencing that a bad motive may be an element in the composition of civil wrong; but in these cases the wrong must have its root in an act which the law generally regards as illegal, but excuses its perpetration in certain exceptional circumstances from considerations of public policy. These are well known as cases of privilege, in which the protection which the law gives to an individual who is within the scope of these considerations consists in this,—that he may with immunity commit an act which is a legal wrong and but for his privilege would afford a good cause of action against him, all that is required in order to raise the privilege and entitle him to protection being that he shall act honestly in the discharge of some duty which the law recognizes, and shall not be prompted by a desire to injure the person who is affected by his act. Accordingly, in a suit brought by that person, it is usual for him to allege and necessary for him to prove an intent to injure in order to destroy the privilege of the defendant. But none of these cases tend to establish that an act which does not amount to a legal wrong, and therefore needs no protection, can have privilege attached to it; and still less that an act in itself lawful is converted into a legal wrong if it was done from a bad motive.

945[After quoting from Bowen, L. J., in Mogul Steamship Co. v. McGregor, and Bayley, J., in Bromage v. Prosser.]

The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed. In my opinion it is alike consistent with reason and common sense that when the act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive.

It does not appear to me to admit of doubt that the jury, in finding the action of the company to have been maliciously induced by the appellant, simply meant to affirm that the appellant was influenced by a bad motive, namely, an intention to injure the respondents in their trade or calling of shipwrights.

There are, in my opinion, two grounds only upon which a person who procures the act of another can be made legally responsible for its consequences. In the first place, he will incur liability if he knowingly and for his own ends induces that other person to commit an actionable wrong. In the second place, when the act induced is within the right of the immediate actor, and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party; and in that case, according to the law laid down by the majority in Lumley v. Gye, 2 E. & B. 216, the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party.

Assuming that the Glengall Iron Company, in dispensing with the further services of the respondents, were guilty of no wrong, I am willing to take it that any person who procured their act might incur responsibility to those who were injuriously affected by it, if he employed unlawful means of inducement directed against them. According to the decision of the majority in Lumley v. Gye, 2 E. & B. 216, already referred to, a person who by illegal means, that is, means which in themselves are in the nature of civil wrongs, procures the lawful act of another, which act is calculated to injure, and does injure, a third party, commits a wrong for which he may be made answerable. So long as the word “means” is understood in its natural and proper sense, that rule appears to me to be intelligible; but I am altogether unable to appreciate the loose logic which confounds internal feeling with outward acts, and treats the motive of the actor as one of the means employed by him.

It has been maintained, and some of the learned judges who lent their assistance to the House have favored the argument, that the appellant used coercion as a means of compelling the Glengall Iron Company to terminate their connection with the respondents; but that conclusion does not appear to me to be the fair result of the evidence. If coercion, in the only legal sense of the term, was employed, it was a wrong done as much to the Glengall Iron Company, who are the parties said to have been coerced, as to the respondents. Its result might be prejudicial to the respondents, but its efficacy wholly depended upon its being directed against and operating upon the company. It must be kept in view that the question of what amounts to wrongful coercion in a legal sense involves the same considerations which I have discussed in relation to the elements of a civil wrong as committed by the immediate actor. According to my opinion, coercion, whatever be its nature, must, in 946order to infer the legal liability of the person who employs it, be intrinsically and irrespectively of its motive a wrongful act. According to the doctrine ventilated in Temperton v. Russell, [1893] 1 Q. B. 715, and the present case it need not amount to a wrong, but will become wrongful if it was prompted by a bad motive.

I have already indicated that, in my opinion, no light is thrown upon the decision of the present question by Pitt v. Donovan, 1 M. & S. 639, and other cases of that class. The defendant had in that case represented, contrary to the fact, that the plaintiff was insane at the time when he executed a particular deed. The communication was made to a person to whom the defendant was under a legal duty to make the disclosure if it had been true; and the defendant was in law absolved from the ordinary consequences of his having circulated a libel which was false and injurious, if he honestly believed it to be true. The law applicable in cases of that description is, I apprehend, beyond all doubt; but the rule by which the law in certain exceptional cases excuses the perpetration of a wrong, by reason of the absence of evil motive, is insufficient to establish or to support the converse and very different proposition, that the presence of an evil motive will convert a legal act into a legal wrong.

[The opinions of Lord Ashbourne, and Lord Morris, concurring with Lord Halsbury, are omitted.]

Lord Herschell.

Great stress was laid at the bar on the circumstance that in an action for maliciously and without reasonable and probable cause putting in motion legal process an evil motive is an essential ingredient. I have always understood and I think that has been the general understanding, that this was an exceptional case. The person against whom proceedings have been initiated without reasonable and probable cause is prima facie wronged. It might well have been held that an action always lay for thus putting the law in motion. But I apprehend that the person taking proceedings was saved from liability if he acted in good faith because it was thought that men might otherwise be too much deterred from enforcing the law, and that this would be disadvantageous to the public. Some of the learned judges cite actions of libel and slander as instances in which the legal liability depends on the presence or absence of malice. I think this is a mistake. The man who defames another by false allegations is liable to an action, however good his motive, and however honestly he believed in the statement he made. It is true that in a limited class of cases the law, under certain circumstances, regards the occasion as privileged, and exonerates the person who has made false defamatory statements from liability if he has made them in good faith. But if there be not that duty or interest which in law creates the privilege, then, though the person making the statements may have acted from the best of motives, and felt it his duty to make them, he is none the less liable. The gist of the action is that the statement was false and defamatory. Because in a strictly limited class of cases the law allows the defence that the statements were made in good faith, it seems to me, with all deference, illogical to affirm that malice constitutes one of the elements of the torts known to the law as libel and slander. But even if it could be established that in cases 947falling within certain well-defined categories, it is settled law that an evil motive renders actionable acts otherwise innocent, that is surely far from showing that such a motive always makes actionable acts prejudicial to another which are otherwise lawful, or that it does so in cases like the present utterly dissimilar from those within the categories referred to.

If the fact be that malice is the gist of the action for inducing or procuring an act to be done to the prejudice of another, and not that the act induced or procured is an unlawful one as being a breach of contract or otherwise, I can see no possible ground for confining the action to cases in which the thing induced is the not entering into a contract. It seems to me that it must equally lie in the case of every lawful act which one man induces another to do where his purpose is to injure his neighbor or to benefit himself at his expense. I cannot hold that such a proposition is tenable in principle, and no authority is to be found for it. I should be the last to suggest that the fact that there was no precedent was in all cases conclusive against the right to maintain an action. It is the function of the Courts to apply established legal principles to the changing circumstances and conditions of human life. But the motive of injuring one’s neighbor or of benefiting one’s self at his expense is as old as human nature. It must for centuries have moved men in countless instances to persuade others to do or to refrain from doing particular acts. The fact that under such circumstances no authority for an action founded on these elements has been discovered does go far to show that such an action cannot be maintained.

I now proceed to consider on principle the proposition advanced by the respondents, the alleged authorities for which I have been discussing. I do not doubt that every one has a right to pursue his trade or employment without “molestation” or “obstruction,” if those terms are used to imply some act in itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another’s trade or employment, and needs to be excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man’s right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is in law a right of precisely the same nature, and entitled to just the same protection as a man’s right to trade or work. They are but examples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium. Unless he is thus shown to have abused his right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling?

[After stating the case of Mogul Steamship Co. v. McGregor.]

It was said that this was held lawful because the law sanctions acts which are done in furtherance of trade competition. I do not think the decision rests on so narrow a basis, but rather on this, that the acts by which the competition was pursued were all lawful acts, that they were acts not in themselves 948wrongful, but a mere exercise of the right to contract with whom, and when, and under what circumstances and upon what conditions they pleased. I am aware of no ground for saying that competition is regarded with special favor by the law; at all events, I see no reason why it should be so regarded. It may often press as hardly on individuals as the defendant’s acts are alleged to have done in the present case. But if the alleged exception could be established, why is not the present case within it? What was the object of the defendant, and the workmen he represented, but to assist themselves in their competition with the shipwrights? A man is entitled to take steps to compete to the best advantage in the employment of his labor, and to shut out, if he can, what he regards as unfair competition, just as much as if he was carrying on the business of a shipowner. The inducement the appellant used to further his end was the prospect that the members of his union would not work in company with what they deemed unfair rivals in their calling. What is the difference between this case and that of a union of shipowners who induce merchants not to enter into contracts with the plaintiffs, by the prospect that if at any time they employ the plaintiffs’ ships they will suffer the penalty of being made to pay higher charges than their neighbors at the time when the defendants’ ships alone visit the ports? In my opinion there is no difference in principle between the two cases.

Lord Macnaghten. My Lords, I am sorry to say that I must begin by recapitulating the facts of the case. For the findings of the jury, taken by themselves, do not convey to my mind any definite meaning. The jury have found that the appellant Allen “maliciously induced” the Glengall Iron Company to discharge the respondents from their service, and they have awarded damages in consequence. I do not know what the jury meant by the word “induced;” I am not sure that I know what they meant by the word “maliciously.” Sometimes, indeed, I rather doubt whether I quite understand that unhappy expression myself. I am therefore compelled to turn for help to the evidence at the trial, accepting, as I suppose the jury must have accepted, the account given by the respondents in preference to that offered by the appellant wherever there may be any shadow of difference between them.

[After a full statement of the evidence.]

Now before I proceed to consider the legal grounds on which Kennedy, J., and the Court of Appeal decided the case against Allen, I should like to ask what there was wrong in Allen’s conduct. He had nothing to do with the origin of the ill-feeling against Flood and Taylor. He did nothing to increase it. He went to the dock simply because he was sent for by one of the men of his union. It seems to be considered the duty of a district delegate to listen to the grievances of the members of his union within his district, and to settle the difficulty if possible. The jury found that the settlement of this dispute was a matter within Allen’s discretion. The only way in which he could settle it was by going and seeing the manager. There was surely nothing wrong in that. There was nothing wrong in his telling the manager that the iron-men would leave their work unless the two shipwrights against whom they had a grudge were dismissed, if he really believed that that was what his men intended to do. As far as their employers were concerned, the iron-men were perfectly free to leave their work for any reason, or for no reason, or even for a bad reason; any one of them might have gone singly to the manager, or they might have gone to him all together (if they went quietly and 949peaceably), and told him that they would not stay any longer with Flood and Taylor at work among them.

If so, it is difficult to see why fault should be found with Allen for going in their place and on their behalf and saying what they would have said themselves.

As regards the meaning of the word “induce,” I do not think the jury got much assistance. I rather gather from the summing-up that the jury were given to understand that if they thought that Allen merely represented the state of things as it was—and the feeling of the iron-men at the Regent’s Dock—they would be at liberty to answer the questions put to them about Allen in the negative. But the answer must be the other way if they thought that Allen went further, and assumed to represent the union, and to speak as if he had the power of the union at his back; that would be a threat and would amount to “inducing.” Now, I must say that I do not think it can be said that Allen did “induce” the company to discharge the plaintiffs. Certainly it cannot be truly said that he procured them to be discharged. It was not his act that prevented the company from continuing to employ them. If the whole story had been a fiction and an invention on his part I could have understood the finding of the jury. But I do not think there was any misrepresentation on Allen’s part. I do not think there was any exaggeration. Nor, indeed, was any such point made at the trial.

So we see now, I think, what the findings of the jury come to, if they are to be treated as being in accordance with the evidence. They must mean that Allen induced the company to discharge the plaintiffs, by representing to the manager, not otherwise than in accordance with the truth, the state of feeling in the yard, and the intentions of the workmen, and that he did so “maliciously,” because he must have known what the issue of his communication to the manager would be, and naturally perhaps he was not sorry to see an example made of persons obnoxious to his union. But is his conduct actionable? It would be very singular if it were. No action would lie against the company for discharging the two shipwrights. No action would lie against the iron-men for striking against them. No action would lie against the officers of the union for sanctioning such a strike. But if the respondents are right the person to answer in damages is the man who happened to be the medium of communication between the iron-men and the company,—the most innocent of the three parties concerned, for he neither set the “agitation” on foot, nor did he do anything to increase it, nor was his the order that put an end to the connection between employer and employed. It seems to me that the result would have been just the same if Edmonds had told Mr. Halkett what was going on in the yard, or if Mr. Halkett had learned it from Flood and Taylor themselves.

Even if I am wrong in my view of the evidence and the verdict, if the verdict amounts to a finding that Allen’s conduct was malicious in every sense of the word, and that he procured the dismissal of Flood and Taylor, that is, that it was his act and conduct alone which caused their dismissal, and if such a verdict were warranted by the evidence, I should still be of opinion that judgment was wrongly entered for the respondents. I do not think that there is any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that 950other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct, if it could be inquired into, was without justification or excuse.

The case may be different where the act itself to which the loss is traceable involves some breach of contract or some breach of duty, and amounts to an interference with legal rights. There the immediate agent is liable, and it may well be that the person in the background who pulls the strings is liable too, though it is not necessary in the present case to express any opinion on that point.

But if the immediate agent cannot be made liable, though he knows what he is about, and what the consequences of his action will be, it is difficult to see on what principle a person less directly connected with the affair can be made responsible unless malice has the effect of converting an act not in itself illegal or improper into an actionable wrong. But if that is the effect of malice, why is the immediate agent to escape? Above all, why is he to escape when there is no one else to blame and no one else answerable? And yet many cases may be put of harm done out of malice without any remedy being available at law. Suppose a man takes a transfer of a debt with which he has no concern for the purpose of ruining the debtor, and then makes him bankrupt out of spite, and so intentionally causes him to lose some benefit under a will or settlement,—suppose a man declines to give a servant a character because he is offended with the servant for leaving,—suppose a person of position takes away his custom from a country tradesman in a small village merely to injure him on account of some fancied grievance not connected with their dealings in the way of buying and selling,—no one, I think, would suggest that there could be any remedy at law in any of those cases. But suppose a customer, not content with taking away his own custom, says something not slanderous or otherwise actionable or even improper in itself to induce a friend of his not to employ the tradesman any more. Neither the one nor the other is liable for taking away his own custom. Is it possible that the one can be made liable for inducing the other not to employ the person against whom he has a grudge? If so, a fashionable dressmaker might now and then, I fancy, be plaintiff in a very interesting suit. The truth is, that questions of this sort belong to the province of morals rather than to the province of law. Against spite and malice the best safeguards are to be found in self-interest and public opinion. Much more harm than good would be done by encouraging or permitting inquiries into motives when the immediate act alleged to have caused the loss for which redress is sought is in itself innocent or neutral in character, and one which anybody may do or leave undone without fear of legal consequences. Such an inquisition would, I think, be intolerable, to say nothing of the probability of injustice being done by juries in a class of cases in which there would be ample room for speculation and wide scope for prejudice.

In order to prevent any possible misconstruction of the language I have used, I should like to add that in my opinion the decision of this case can have no bearing on any case which involves the element of oppressive combination. The vice of that form of terrorism commonly known by the name of “boycotting,” and other forms of oppressive combination, seems to me to depend 951on considerations which are, I think, in the present case, conspicuously absent.

Lord Shand.... The case was one of competition in labor, which, in my opinion, is in all essentials analogous to competition in trade, and to which the same principles must apply; and I ask myself what would be the thought of the application of the word “malicious” to the conduct of a tradesman who induces the customer of another tradesman to cease making purchases from one with whom he had long dealt, and instead to deal with him, a rival in trade. The case before the jury was, in my view, in no way different, except that in the one case there was competition in labor,—in the other there would be competition in trade.

Some of the learned consulted judges speak of Allen’s conduct as having been caused by a desire to inflict “punishment” on the shipwrights for past acts, and indicate that, if the shipwrights had been actually working at ironwork on the vessel at the time, the case would have been different.^[601]

I cannot agree in any such view. “Punishment” in a wide and popular sense may possibly be used, though incorrectly, to describe the boilermakers’ action; but it is quite clear that what they were resolved to do, and really did, was, while marking their sense of the injury which they thought (rightly or wrongly is not the question) the shipwrights were doing to them in trenching on their proper lines of business, to take a practical measure in their own defence. Their object was to benefit themselves in their own business as working boilermakers, and to prevent a recurrence in the future of what they considered an improper invasion on their special department of work. How this could possibly be regarded as “malicious,” even in any secondary sense that can reasonably be attributed to that term, I cannot see.

Coming now directly to the merits of the question in controversy in the case, the argument of the plaintiffs and the reasons for the opinions of the majority of the consulted judges seem to me to fail, because, although it is no doubt true that the plaintiffs were entitled to pursue their trade as workmen “without hindrance,” their right to do so was qualified by an equal right, and indeed the same right, on the part of other workmen. The hindrance must not be of an unlawful character. It must not be by unlawful action. Amongst the rights of all workmen is the right of competition. In the like manner and to the same extent as a workman has a right to pursue his work or labor without hindrance, a trader has a right to trade without hindrance. That right is 952subject to the right of others to trade also, and to subject him to competition,—competition which is in itself lawful, and which cannot be complained of where no unlawful means (in the sense I have already explained) have been employed. The matter has been settled in so far as competition in trade is concerned by the judgment of this House in the Mogul Steamship Co. Case, [1892] A. C. 25. I can see no reason for saying that a different principle should apply to competition in labor. In the course of such competition, and with a view to secure an advantage to himself, I can find no reason for saying that a workman is not within his legal rights in resolving that he will decline to work in the same employment with certain other persons, and in intimating that resolution to his employers.

[The opinions of Lord Davey and Lord James of Hereford, in favor of reversing the order of the Court of Appeal are omitted.]

Order of the Court of Appeal reversed and judgment entered for the appellant with costs here and below including the costs of the trial: cause remitted to the Queen’s Bench Division.^[602]

LEATHEM v. CRAIG Queen’s Bench Division, Ireland, November 22, 1898. Court of Appeal, Ireland, May 2, 1899. Reported in [1899] 2 Irish Reports, 667, 744. QUINN v. LEATHEM In the House of Lords, August 5, 1901. Reported in [1901] Appeal Cases, 495.^[603]

This was an action tried before FitzGibbon, L. J., at the Belfast Summer Assizes, 1896, brought against the defendants for damages for maliciously and wrongfully procuring certain persons to break contracts into which they had entered with the plaintiff, and not to enter into other contracts with the plaintiff; and for maliciously and wrongfully enticing and procuring certain workmen in the employment of such persons to leave the service of their employers and to break their contracts of service, with intent to injure the plaintiff, 953and to prevent such persons from carrying out their contracts with the plaintiff, and from entering into other contracts with the plaintiff; and for maliciously and wrongfully intimidating such persons, and coercing them to break their contracts with the plaintiff; and intimidating such servants in their employ, and coercing them to leave the service of their employers, to the injury of the plaintiff; and for unlawfully conspiring, together with other persons, to do the acts aforesaid, with intent to injure the plaintiff.

There was also a paragraph in the statement of claim, claiming damages for the publication of the plaintiff’s name in a “black list,” issued by the defendants, and a prayer for an injunction to prevent the continuance and repetition of the acts complained of.

The following facts were proved. The plaintiff was a butcher at Lisburn, in the county of Antrim, about eight miles from Belfast, where he had carried on business for a number of years. He had in his employment one Robert Dickie, his foreman, who had been with him for ten years. The plaintiff had been in the habit of sending large quantities of meat to Andrew Munce, a butcher in Belfast, and had been doing so for some twenty years. There was no contract in writing between them; but, whatever amount the plaintiff sent, Munce took and paid for—the amount being, on an average, of the value of £30 a week.

The defendants John Craig, John Davey, and Joseph Quinn were butchers’ assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw, butchers’ assistants in Lisburn. In the spring of 1895 these defendants and several others in the same occupation formed themselves into an association, which was duly registered under the Trade Union Acts, 1871 and 1876, under the title of “The Belfast Journeymen Butchers’ Assistants’ Association,” of which the defendant Davey became the Secretary. The plaintiff’s men were not members of the association. At the commencement of July, 1895, the defendants’ association required the plaintiff to dismiss Robert Dickie from his employment, which he refused to do. Upon that the defendants’ society threatened to withdraw the plaintiff’s men from his service. A deputation was sent down to meet the plaintiff at Lisburn, and a meeting was held in Magill’s public-house, Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan, and Shaw were present—Craig being in the chair. The plaintiff stated that he had come on behalf of his men, and was ready to pay all fines and demands against them, and asked to have them admitted into the society. The defendant Shaw objected, and said that the plaintiff’s men should be punished, and should be put out to walk the streets for twelve months. The plaintiff objected to this, as Dickie was a married man with a family. Shaw moved, and Morgan seconded a resolution that the plaintiff’s assistants should be called out, and it was carried. The defendants stated that they could pick out plenty of men to work for 954the plaintiff from their list; the plaintiff replied that they were not suitable for his business, and refused to put his own men out. Craig then said that the plaintiff’s meat would be stopped at Munce’s, if the plaintiff would not comply with their wishes. The plaintiff still refused. The defendants then called out some of the plaintiff’s employees. Edward Dickie, a servant of the plaintiff, was brought to a meeting of the defendants’ society, held over Dornan’s shop in Lisburn, and was ordered to leave the plaintiff, the society undertaking to pay him the same wages as he had been receiving from the plaintiff. Dickie, yielding to this order, left the plaintiff without notice. “Black lists” were issued by the society upon which the names of persons were posted who had offended against the society’s rules. Leathem’s name was posted, and also the name of John M’Bride, a flesher in Lisburn, who was dealing with the plaintiff. Subsequently, however, Dornan and others of the defendants came to M’Bride; and on his undertaking not to deal any more with Leathem, his name was struck out.

On the 6th September, 1895, the defendant Davey wrote to the plaintiff the following letter:—

“I have been instructed to write you if you would be kind enough to reply on or before Tuesday, 10th, whether you have made up your mind to continue to employ non-union labour. If you continue as at present, our society will be obliged to adopt extreme measures in your case. Trusting that you will see the wisdom of acceding to our views at once, I remain,” &c.

On the 13th September, Davey wrote to Munce:—

“A deputation has been appointed to wait on you, or your responsible representative, on Monday evening, the 16th inst., at 6.30 p. m., to come to a decision in regard to this case of Leathem & Sons, as we are anxious to have a settlement at once.”

To this Munce replied:—

“In reply to your letter re Leathem & Sons, I cannot see my way to attend any deputation of the sort, as it is quite out of my province to interfere with the liberty of any man. But why refer to me in this matter? I do not think it fair for you to come at me in the matter, seeing it appears to be the Messrs. Leathem that you wish to interfere with.”

On the 16th September a deputation of the defendants’ society went to Munce’s establishment, and had an interview with W. F. Munce, the son of Andrew Munce, and asked him to put pressure on his father to stop dealing with the plaintiff. W. F. Munce replied by letter on the 17th September:—

“A deputation of the Journeymen Butchers’ Association waited at Corn Market yesterday evening, with reference to the case of the purchase of meat from Henry Leathem, Lisburn. In accordance with promise, I placed the views of the deputation before Mr. Munce, and in reply he wishes to state he could not interfere to bring pressure to 955bear on Mr. Leathem to employ none but society men, by refusing to purchase meat from him, as that would be outside his province, and would be interfering with the liberty of another man; but at the same time he will strongly recommend Mr. Leathem to adopt the views of the Journeymen Butchers’ Association, and employ men belonging to the society.”

On the 18th September Davey wrote to Andrew Munce:—

“Have submitted your letter to committee. They are of opinion that in the main it is unsatisfactory, but thanking you kindly for your recommendation to Mr. Leathem, with whom we have endeavoured to make a satisfactory arrangement, but have failed; so therefore have no other alternative but to instruct your employees to cease work immediately Leathem’s beef arrives.”

On the 19th September Munce telegraphed to Leathem:—

“Unless you arrange with society you need not send any beef this week, as men are ordered to quit work.”

Munce ceased to deal with the plaintiff, and the plaintiff was obliged to sell off the meat he had on hand at a heavy loss at any price he could get. In consequence of these transactions the plaintiff’s business was ruined.

The case was tried before FitzGibbon, L. J., at the Summer Assizes of 1896, at Belfast. The defendants did not offer any evidence, their counsel asking for a direction on the grounds: 1, that to sustain the action a contract made with Leathem must be proved to have been made and broken through the acts of the defendants, and that there was no evidence of such contract or breach; 2, that there was no evidence of pecuniary damage to the plaintiff through the acts of the defendants; 3, that the ends of the defendants and the means taken by them to promote those ends as appearing in evidence were legitimate, and there was no evidence of actual damage to the plaintiff.

The learned Lord Justice declined to withdraw the case from the jury, and left to them the following questions:—

1. Did the defendants, or any of them, wrongfully and maliciously induce the customers or servants of the plaintiff named in the evidence to refuse to deal with the plaintiff? Answer: Yes.

2. Did the defendants, or any two or more of them maliciously conspire to induce the plaintiff’s customers or servants named in the evidence, or any of them, not to deal with the plaintiff or not to continue in his employment; and were such persons so induced not so to do? Answer: Yes.

3. Did the defendants Davey, Dornan, and Shaw, or any of them, publish the “black lists” with intent to injure the plaintiff in his business; and, if so, did the publication so injure him? Answer. Yes.

FitzGibbon, L. J., in summing up, told the jury that pecuniary loss, directly caused by the conduct of the defendants, must be proved in order to establish a cause of action; and he advised them to require 956to be satisfied that such loss to a substantial amount had been proved by the plaintiff. He declined to tell them that, if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants, they were bound to limit the amount of damages to the precise sum so proved. He told them that, if the plaintiff gave the proof of actual and substantial loss necessary to maintain the action, they were at liberty in assessing damages to take all the circumstances of the case, including the conduct of the defendants, reasonably into account. The Lord Justice did not tell the jury that the liability of the defendants depended on any question of law. He told them that the questions left to them were questions of fact to be determined on the evidence; but that they included questions as to the intent of the defendants, and, in particular, their intent to injure the plaintiff in his trade as distinguished from the intent of legitimately advancing their own interests. The Lord Justice did not tell the jury that the defendants could be directly asked what their own intention was, but he did tell them that their intention was to be inferred from their acts and conduct as proved, and that, in acting upon the evidence given by the plaintiff, they were at liberty to have regard to the fact that the defendants, who might have given the best evidence on the subject, had not been produced to explain, qualify, or contradict any of the evidence given for the plaintiff as to their own acts. Upon the meaning of the words “wrongfully and maliciously” in the questions, the Lord Justice told the jury that they had to consider whether the intent and actions of the defendants went beyond the limits which would not be actionable, namely, securing or advancing their own interests, or those of their trade, by reasonable means, including lawful combination, or whether their acts, as proved, were intended and calculated to injure the plaintiff in his trade, through a combination and with a common purpose, to prevent the free action of his customers and servants in dealing with him, with the effect of actually injuring him, as distinguished from acts legitimately done to secure or advance their own interests. Finally, he told the jury that acts done with the object of increasing the profits or raising the wages of any combination of persons such as the society to which the defendants belonged, whether employers or employed, by reasonable and legitimate means, were perfectly lawful and were not actionable so long as no wrongful act was maliciously—that is intentionally—done to injure a third party. To constitute such a wrongful act for the purposes of this case, the Lord Justice told the jury that they must be satisfied that there had been a conspiracy, a common intention, and a combination, on the part of the defendants to injure the plaintiff in his business; and that acts must be proved to have been done by the defendants in furtherance of that intention which had inflicted actual money loss upon the plaintiff in his trade; and that whether the acts of the defendants were or were not in that 957sense actionable, was the question which the jury had to try upon the evidence.

The jury found for the plaintiff with £250 damages, of which £50 was separately assessed for damages on the cause of action relating to the “black list,” and £200 for damages on the other causes of action and judgment was thereupon entered for the plaintiff for £250 damages and costs.

The defendants now moved to set aside the verdict and judgment so had, and that judgment should be entered for them on the ground of misdirection; or for a new trial, on the ground that the damages were excessive, and that the jury were allowed to take the “black lists” into account.

William O’Brien, J....

The right infringed is the right to live by labor.

Physical hindrances, or prevention of labor by physical means, it was conceded, would be the invasion of a right, and that would certainly be the case whether the restraint was applied to the employer or to the workman.

If temporal loss were not coercion, it could be used to the degree of a person being starved. The proposition on which the judgment of the majority (in Allen v. Flood) was founded in this respect is opposed to the whole analogy of the law that makes duress of property, or menace of temporal loss, as effectual as physical violence to avoid all kinds of acts.

In The Mogul Steamship Company v. M’Gregor, [1892] A. C. 25, the trade of the defendants was the primary object, and the injury to the plaintiffs was the result of the means taken to advance that object. There, as in Allen v. Flood, [1898] A. C. 1, the injury to others was the thing intended, as the means of carrying out another object.

There is an observation which appears to me to gather up several of the fallacies which are scattered through the arguments in the judgments of the majority in Allen v. Flood, [1898] A. C. 1. The case is put by Lord Watson as if it were a question whether a person could be made liable for doing, from a malicious motive, what, without such motive he could do lawfully. In fact there are cases in law in which the malice makes the distinction of what is lawful or unlawful, as in malicious prosecution, or takes away the right that otherwise exists, as in the instance of privileged communication. But that is not the present case at all, as it was not that of Allen v. Flood, [1898] A. C. 1. The defendant, who maliciously instigated the thing, is not the person who possessed the power of dismissal. Therefore the supposed constitutional objection, that the law could not enter into a man’s mind, has 958no place. The same point meets the case of the butler and the cook that was put in the argument. The butler tells his master he will leave unless the cook is dismissed. Lord Herschell snatched at the admission of counsel, that the cook could bring an action, as being the logical conclusion from his argument. With great respect, it is neither logical nor the law. The servant is the master of his own actions. He can choose his own company, though even for that object he cannot use threats. But in this case it was another person that assumed to choose his company for him. Allen was not a boiler-maker, as Craig was not a butcher, who wished to leave. Each was a member of a trade organization, and had no duty or interest of his own to interfere. What relation could such a position assume but that of intimidation?

... a confusion of relations, in applying the proposition that a person cannot be made liable for maliciously exercising a right which he possesses. The action here is for maliciously causing another person to exercise a right which that other person possessed. In one case, the right may be said to absorb the malice, though there are exceptions to the rule in the common law. But how can it absorb another man’s malice?

What wrong can be conceived more cruel and grievous than wilfully depriving men of their employment? There must be a right, correlative to the wrong. What right can be more sacred than the right to live by a man’s labor? But then, it is said, the wrong and the right are subject to the legal power of another person. That is the case in many instances, in which the law nevertheless gives a remedy for wrong that requires the exercise of another person’s will. That is the case of a person who is defamed; the damage comes from those who hear. That is the case of malicious prosecution; the agency is that of the law. The servant who is enticed away from his master, leaves of his own will. The woman who left her husband, in Winsmore v. Greenbank, Willes, 577, did so with her own consent; the actress who broke her engagement, in Lumley v. Gye, 2 E. & B. 216, could have performed, if she liked. That is the case of tenants leaving their holdings on account of threats, which is put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.

Many other examples could be given where the law allows a remedy, though the wrongful act requires the concurrence of another person’s will. The rule is the same as to crimes. The law does not excuse instigation to crime because the other person need not commit the crime, or for the reason that it is impossible to separate the effect of the instigation and natural pravity of will, which was the ground erroneously assigned by Coleridge, J., for his opinion in Lumley v. Gye, 2 E. & B. 216. In fact the law makes no distinction between 959moral and physical agency, or the degrees of the influence, when the cause is attached to the consequence by the verdict of the jury.

The law of conspiracy, which is traced down, in Comyn’s Digest, and after him in the notes to Saunders’ Reports, and in several English judgments as well as in the judgment in Kearney v. Lloyd, 26 L. R. Ir. 268, from the obsolete writ of conspiracy, through the action on the case in the nature of conspiracy, with their several distinctions, and which was originally confined to false accusations of crime, has widened out by the expansion of social conditions and the increase of wickedness, until it embraces in its modern extent every kind of wrong committed by several against another, and has been applied in a multitude of instances where the law gives no remedy against an individual, which was the utmost that was determined by Allen v. Flood, [1898] A. C. 1.

... a malicious design to deprive a person of his livelihood, the malice being compounded both of the object, and the want of any just motive of personal right. For no one contended at any time that the object of drawing all persons into the pen of a trade union, was a ground of privilege like that which excused the act in The Mogul Steamship Co. v. M’Gregor, [1892] A. C. 25, where the defendants merely waged a war of rivalry in their trade. However, if “civil wrong” be understood in the sense of actionable wrong, the rule, so confined, is contrary to a multitude of cases, in which the action was adopted, and in which nevertheless it is most certain there was no legal remedy against a single defendant, even before the decision of Allen v. Flood, [1898] A. C. 1. Indeed, that is the express and special use of the action of conspiracy, without which it would find no real place in practice, though it is not impossible such an action could be maintained for what is actionable also in the case of an individual.

There was in this case a direct design to injure the plaintiff. That was malice alone. The act was not done in exercise of any right the defendants possessed. It was done through the agency of another person by improperly influencing his will; and that will was moved solely by their act, and would not otherwise have been exercised. It was done by numbers, to which the law attaches a new and altered quality of more formidable wrong—the foundation of conspiracy—which is a difference in things themselves that can never be taken out of the law, civil or criminal, whilst there is a difference between a man and an army. Lastly, there was the damage which was so unjust as itself to make the act malicious.

For the case put, of a person maliciously digging on his own land, and draining the well, of his neighbor, is no exception, and demonstrates 960the weakness of the argument which is founded on it. In that case the act could not be prohibited without interfering with the inherent right of property; and the right of the neighbor was subject to the right of the contiguous owner. The two rights were equal. The right absorbed the malice, and could not otherwise coexist with it. Here the defendants possessed no right which they could not otherwise exercise; and the right of the plaintiff to carry on his trade was not subject to any right in them. No right of interference with others, which the law could recognize, could attach to the aggressions of a trade union—to their plans for the revision of the relations between employers and employed—to proceedings conducting, by inevitable sequence, to what was lately expressed, with no less energy than the weight attaching to the author, as “the destructive demands of a class upon the fundamental laws on which civil order rests.”

Sir P. O’Brien, L. C. J., and Andrews, J., delivered opinions in favor of denying defendants’ motion.

Palles, C. B., dissented, because he felt himself “coerced by the judgment of the House of Lords in Allen v. Flood....”

The defendants’ motion was refused with costs.

The case was then carried to the Irish Court of Appeal. In accordance with the opinions there delivered by Lord Ashbourne, Chancellor, Porter, M. R., Walker, L. J., and Holmes, L. J., the decision below, as to the verdict and judgment for £200, was affirmed with costs; the judgment for the plaintiff being amended by omitting the part as to the recovery of £50 damages which was separately assessed on account of the “black list.”

Holmes, L. J., said: “The ‘black list’ was only an overt act of the conspiracy, and the sum awarded for it is included in the £200.”

One of the defendants, Quinn, appealed to the House of Lords.

Lord Chancellor Halsbury, Lords Macnaghten, Shand, Brampton, Robertson, and Lindley delivered opinions in favor of dismissing the appeal.

Earl of Halsbury, L. C.

[As to the effect of the decision in Allen v. Flood.]

Now the hypothesis of fact upon which Allen v. Flood was decided by a majority in this House was that the defendant there neither uttered nor carried into effect any threat at all: he simply warned the plaintiff’s employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade union official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the decision that there was no case of conspiracy or even combination. 961What was alleged to be done was only the independent and single action of the defendant, actuated in what he did by the desire to express his own views in favor of his fellow-members. It is true that I personally did not believe that was the true view of the facts, but, as I have said, we must look at the hypothesis of fact upon which the case was decided by the majority of those who took part in the decision.

Lord Macnaghten.

I do not think that the acts done by the defendants were done “in contemplation or furtherance of a trade dispute between employers and workmen.” So far as I can see, there was no trade dispute at all. Leathem had no difference with his men. They had no quarrel with him. For his part he was quite willing that all his men should join the union. He offered to pay their fines and entrance moneys. What he objected to was a cruel punishment proposed to be inflicted on some of his men for not having joined the union sooner. There was certainly no trade dispute in the case of Munce. But the defendants conspired to do harm to Munce in order to compel him to do harm to Leathem, and so enable them to wreak their vengeance on Leathem’s servants who were not members of the union.

Lord Lindley.^[604] My Lords, the case of Allen v. Flood, [1898] A. C. 1, has so important a bearing on the present appeal that it is necessary to ascertain exactly what this House really decided in that celebrated case. It was an action by two workmen of an iron company against three members of a trade union, namely, Allen and two others, for maliciously, wrongfully, and with intent to injure the plaintiffs, procuring and inducing the iron company to discharge the plaintiffs.^[605] The action was tried before Kennedy, J., who ruled that there was no evidence to go to the jury of conspiracy, intimidation, coercion, or breach of contract. The result of the trial was that the plaintiffs obtained a verdict and judgment against Allen alone. He appealed, and the only question which this House had to determine was whether what he had done entitled the plaintiffs to maintain their action against him. What the jury found that he had done was, that he had maliciously induced the employers of the plaintiffs to discharge them, whereby the plaintiffs suffered damage. Different views were taken by the noble Lords who heard the appeal as to Allen’s authority to call out the members of the union, and also as to the means used by Allen to induce the employers of the plaintiffs to discharge them; but, in the opinion of the noble Lords who formed the majority of 962Your Lordships’ House, all that Allen did was to inform the employers of the plaintiffs that most of their workmen would leave them if they did not discharge the plaintiffs.^[606] There being no question of conspiracy, intimidation, coercion, or breach of contract, for consideration by the House, and the majority of their Lordships having come to the conclusion that Allen had done no more than I have stated, the majority of the noble Lords held that the action against Allen would not lie; that he had infringed no right of the plaintiffs; that he had done nothing which he had no legal right to do, and that the fact that he had acted maliciously and with intent to injure the plaintiffs did not, without more, entitle the plaintiffs to maintain the action.

My Lords, this decision, as I understand it, establishes two propositions: one a far-reaching and extremely important proposition of law, and the other a comparatively unimportant proposition of mixed law and fact, useful as a guide, but of a very different character from the first.

The first and important proposition is that an act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive, and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in Allen v. Flood, [1898] A. C. 1; it had been gaining ground for some time, but it was never before so fully and authoritatively expounded as in that case. In applying this proposition care, however, must be taken to bear in mind, first, that in Allen v. Flood, [1898] A. C. 1, criminal responsibility had not to be considered. It would revolutionize criminal law to say that the criminal responsibility for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person’s liability to civil proceedings the proposition in question only applies to “acts otherwise lawful,” i. e., to acts involving no breach of duty, or, in other words, no wrong to any one. I shall refer to this matter later on.

The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. I have already stated what he did, and all that he did, in the opinion of the majority of the noble Lords. If their view of the facts was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to inform a person that others will annoy or injure him unless he acts in a particular way cannot of itself be actionable, whatever the motive or intention of the informant may have been.

My Lords, the questions whether Allen had more power over the men than some of their Lordships thought, and whether Allen did more than they thought, are mere questions of fact. Neither of these questions is a question of law, and no court or jury, is bound as a 963matter of law to draw from the facts before it inferences of fact similar to those drawn by noble Lords from the evidence relating to Allen in the case before them.

I will pass now to the facts of this case, and consider (1) what the plaintiff’s rights were; (2) what the defendants’ conduct was; (3), whether that conduct infringed the plaintiff’s rights. For the sake of clearness it will be convenient to consider these questions in the first place apart from the statute which legalizes strikes, and in the next place with reference to that statute.

1. As to the plaintiff’s rights. He had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact—in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified—the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I understand it, is not so defective as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen, L. J., in his admirable judgment in the Mogul Steamship Company’s Case, 23 Q. B. D. 613, 614, may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen v. Flood, [1898] A. C. 1, to be opposed to it.

If the above reasoning is correct, Lumley v. Gye, 2 E. & B. 216, was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually 964damaging him. Temperton v. Russell, [1893] 1 Q. B. 715, ought to have been decided and may be upheld on this principle. That case was much criticised in Allen v. Flood, [1898] A. C. 1, and not without reason; for, according to the judgment of Lord Esher, the defendants’ liability depended on motive or intention alone, whether anything wrong was done or not. This went too far, as was pointed out in Allen v. Flood, [1898] A. C. 1. But in Temperton v. Russell, [1893] 1 Q. B. 715, there was a wrongful act, namely, conspiracy and unjustifiable interference with Brentano, who dealt with the plaintiff. This wrongful act warranted the decision, which I think was right.

2. I pass on to consider what the defendants did. The appellant and two of the other defendants were the officers of a trade union, and the jury have found that the defendants wrongfully and maliciously induced the customers of the plaintiff to refuse to deal with him, and maliciously conspired to induce them not to deal with him. There were similar findings as to inducing servants of the plaintiff to leave him. What the defendants did was to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some non-union men in his employ. In other words, in order to compel the plaintiff to discharge some of his men, the defendants threatened to put the plaintiff and his customers, and persons lawfully working for them, to all the inconvenience they could without using violence. The defendants’ conduct was the more reprehensible because the plaintiff offered to pay the fees necessary to enable his non-union men to become members of the defendants’ union; but this would not satisfy the defendants. The facts of this case are entirely different from those which this House had to consider in Allen v. Flood, [1898] A. C. 1. In the present case there was no dispute between the plaintiff and his men. None of them wanted to leave his employ. Nor was there any dispute between the plaintiff’s customers and their own men, nor between the plaintiff and his customers, nor between the men they respectively employed. The defendants called no witnesses, and there was no evidence to justify or excuse the conduct of the defendants. That they acted as they did in furtherance of what they considered the interests of union men may probably be fairly assumed in their favor, although they did not come forward and say so themselves; but that is all that can be said for them. No one can, I think, say that the verdict was not amply warranted by the evidence. I have purposely said nothing about the black list, as the learned judge who tried the case considered that the evidence did not connect the appellant with that list. But the black list was, in my opinion, a very important feature in the case.

3. The remaining question is whether such conduct infringed the plaintiff’s rights so as to give him a cause of action. In my opinion, it plainly did. The defendants were doing a great deal more than exercising their own rights: they were dictating to the plaintiff and his customers and servants what they were to do. The defendants were 965violating their duty to the plaintiff and his customers and servants, which was to leave them in the undisturbed enjoyment of their liberty of action as already explained. What is the legal justification or excuse for such conduct? None is alleged and none can be found. This violation of duty by the defendants resulted in damage to the plaintiff—not remote, but immediate and intended. The intention to injure the plaintiff negatives all excuses and disposes of any question of remoteness of damage. Your lordships have to deal with a case, not of damnum absque injuria, but of damnum cum injuria.

Every element necessary to give a cause of action on ordinary principles of law is present in this case. As regards authorities, they were all exhaustively examined in the Mogul Steamship Co. v. MacGregor, [1892] A. C. 25, and Allen v. Flood, [1898] A. C. 1, and it is unnecessary to dwell upon them again. I have examined all those which are important, and I venture to say that there is not a single decision anterior to Allen v. Flood, [1898] A. C. 1, in favor of the appellant. His sheet anchor is Allen v. Flood, [1898] A. C. 1, which is far from covering this case, and which can only be made to cover it by greatly extending its operation.

It was contended at the bar that if what was done in this case had been done by one person only, his conduct would not have been actionable, and that the fact that what was done was affected by many acting in concert makes no difference. My Lords, one man without others behind him who would obey his orders could not have done what these defendants did. One man exercising the same control over others as these defendants had could have acted as they did, and, if he had done so, I conceive that he would have committed a wrong towards the plaintiff for which the plaintiff could have maintained an action. I am aware that in Allen v. Flood, [1898] A. C. 1, Lord Herschell, [1898] A. C. at pp. 128, 138, expressed his opinion to be that it was immaterial whether Allen said he would call the men out or not. This may have been so in that particular case, as there was evidence that Allen had no power to call out the men, and the men had determined to strike before Allen had anything to do with the matter. But if Lord Herschell meant to say that as a matter of law there is no difference between giving information that men will strike, and making them strike, or threatening to make them strike, by calling them out when they do not want to strike, I am unable to concur with him. It is all very well to talk about peaceable persuasion. It may be that in Allen v. Flood, [1898] A. C. 1, there was nothing more; but here there was very much more. What may begin as peaceable persuasion may easily become, and in trades union disputes generally does become, peremptory ordering, with threats open or covert of very unpleasant consequences to those who are not persuaded. Calling workmen out involves very serious consequences to such of them as do not obey. Black lists are real instruments of coercion, as every man whose name is on one soon discovers to his cost. A combination 966not to work is one thing, and is lawful. A combination to prevent others from working by annoying them if they do is a very different thing, and is prima facie unlawful. Again, not to work oneself is lawful so long as one keeps off the poor-rates, but to order men not to work when they are willing to work is another thing. A threat to call men out given by a trade union official to an employer of men belonging to the union and willing to work with him is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist, and, to say the least, requiring justification. None was offered in this case.

My Lords, it is said that conduct which is not actionable on the part of one person cannot be actionable if it is that of several acting in concert. This may be so where many do no more than one is supposed to do. But numbers may annoy and coerce where one may not. Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce. I am aware of the difficulties which surround the law of conspiracy both in its criminal and civil aspects; and older views have been greatly and, if I may say so, most beneficially modified by the discussions and decisions in America and this country. Amongst the American cases, I would refer especially to Vegelahn v. Guntner, 167 Mass. 92, where coercion by other means than violence, or threats of it, was held unlawful. In this country it is now settled by the decision of this House in the case of the Mogul Steamship Co., [1892] A. C. 25; 23 Q. B. D. 598, that no action for a conspiracy lies against persons who act in concert to damage another and do damage him, but who at the same time merely exercise their own rights and who infringe no rights of other people. Allen v. Flood, [1898] A. C. 1, emphasizes the same doctrine. The principle was strikingly illustrated in the Scottish Coöperative Society v. Glasgow Fleshers’ Association, 35 Sc. L. R. 645, which was referred to in the course of the argument. In this case some butchers induced some salesmen not to sell meat to the plaintiffs. The means employed were to threaten the salesmen that if they continued to sell meat to the plaintiffs, they, the butchers, would not buy from the salesmen. There was nothing unlawful in this, and the learned judge held that the plaintiffs showed no cause of action, although the butchers’ object was to prevent the plaintiffs from buying for coöperative societies in competition with themselves, and the defendants were acting in concert.

The cardinal point of distinction between such cases and the present is that in them, although damage was intentionally inflicted on the plaintiffs, no one’s right was infringed—no wrongful act was committed; whilst in the present case the coercion of the plaintiff’s customers and servants, and of the plaintiff through them, was an infringement of their liberty as well as his, and was wrongful both to them and also to him, as I have already endeavored to show.

967Intentional damage which arises from the mere exercise of the rights of many is not, I apprehend, actionable by our law as now settled. To hold the contrary would be unduly to restrict the liberty of one set of persons in order to uphold the liberty of another set. According to our law, competition, with all its drawbacks, not only between individuals, but between associations, and between them and individuals, is permissible, provided nobody’s rights are infringed. The law is the same for all persons, whatever their callings: it applies to masters as well as to men; the proviso, however, is all-important, and it also applies to both, and limits the rights of those who combine to lock-out as well as the rights of those who strike. But coercion by threats, open or disguised, not only of bodily harm but of serious annoyance and damage, is prima facie, at all events, a wrong inflicted on the persons coerced; and in considering whether coercion has been applied or not, numbers cannot be disregarded.

I conclude this part of the case by saying that, in my opinion, the direction given to the jury by the learned judge who tried the case was correct, so far as the liability of the defendants turns on principles of common law, and that the objection taken to it by the counsel for the appellant is untenable. I mean the objection that the learned judge did not distinguish between coercion to break contracts of service, and coercion to break contracts of other kinds, and coercion not to enter into contracts.

I pass now to consider the effect of the statute 38 & 39 Vict. c. 86.

[The opinion on this point is omitted.]

My Lords, I will detain your Lordships no longer. Allen v. Flood, [1898] A. C. 1, is in many respects a very valuable decision, but it may be easily misunderstood and carried too far.

Your Lordships are asked to extend it and to destroy that individual liberty which our laws so anxiously guard. The appellant seeks by means of Allen v. Flood, [1898] A. C. 1, and by logical reasoning based upon some passages in the judgments given by the noble Lords who decided it, to drive your Lordships to hold that boycotting by trades unions in one of its most objectionable forms is lawful, and gives no cause of action to its victims although they may be pecuniarily ruined thereby.

My Lords, so to hold would, in my opinion, be contrary to well-settled principles of English law, and would be to do what is not yet authorized by any statute or legal decision.

In my opinion this appeal ought to be dismissed with costs.

Order appealed from affirmed, and appeal dismissed with costs.^[607]

968

VEGELAHN v. GUNTNER Supreme Judicial Court, Massachusetts, October 26, 1896. Reported in 167 Massachusetts Reports, 92.

Bill in equity against fourteen individual defendants and two trades unions.^[608]

The following decree was entered at a preliminary hearing upon the bill: “This cause came on to be heard upon the plaintiff’s motion for a temporary injunction; and after due hearing, at which the several defendants, were represented by counsel, it is ordered, adjudged, and decreed that an injunction issue pendente lite, to remain in force until the further order of this court, or of some justice thereof, restraining the respondents and each and every of them, their agents 969and servants, from interfering with the plaintiff’s business by patrolling the sidewalk or street in front or in the vicinity of the premises occupied by him, for the purpose of preventing any person or persons who now are or may hereafter be in his employment, or desirous of entering the same, from entering it, or continuing in it; or by obstructing or interfering with such persons, or any others, in entering or leaving the plaintiff’s said premises; or by intimidating, by threats or otherwise, any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or continuing in it; or by any scheme or conspiracy among themselves or with others, organized for the purpose of annoying, hindering, interfering with, or preventing any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or from continuing therein.”

Hearing upon the bill and answers before Holmes, J., who reported the case for the consideration of the full court, as follows:—

“The facts admitted or proved are that, following upon a strike of the plaintiff’s workmen, the defendants have conspired to prevent the plaintiff from getting workmen, and thereby to prevent him from carrying on his business unless and until he will adopt a schedule of prices which has been exhibited to him, and for the purpose of compelling him to accede to that schedule, but for no other purpose. If he adopts that schedule he will not be interfered with further. The means adopted for preventing the plaintiff from getting workmen are, (1) in the first place, persuasion and social pressure. And these means are sufficient to affect the plaintiff disadvantageously, although it does not appear, if that be material, that they are sufficient to crush him. I ruled that the employment of these means for the said purpose was lawful, and for that reason refused an injunction against the employment of them. If the ruling was wrong, I find that an injunction ought to be granted.