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In the circuit court of Greene County, Ind., Benjamin F. Watson recovered damages in an action against Thomas Clemitt and others for having been driven from his employment as workman in a coal mine by an alleged wrongful conspiracy among other workmen in the mine, who agreed with each other not to work with him and to quit work unless he was discharged, pursuant to which they did quit work upon their employer's refusing to discharge Watson, by reason whereof the business was suspended and he was thrown out of work.
The defendants appealed to the appellate court of Indiana, which tribunal reversed the decision of the circuit court and held that such a combination among workmen is not actionable in the absence of malice, intimidation, or violence, or evidence that they were bound to continue work, or that the employer was obliged to retain the plaintiff in his service.
The opinion of the appellate court, delivered by Chief Justice Gavin December 10, 1895, was published in full in volume 42 of the Northeastern Reporter, page 367, under the title of Clemitt et al. v. Watson. In the course of the opinion it was said:
While it is true that, under all civilized forms of government, every man surrenders for the general good a certain amount of that absolute freedom of action which may adhere to the individual in an independent or natural state, yet, under our institutions, it is a cardinal principle that each man retains the greatest freedom of action compatible with the general welfare. The right to control his own labor, and to bestow or withhold it where he will, belongs to every man. Eren though he be under contract to render services, the courts will not interfere to compel him to specifically perform them. (Arthur v. Oakes, 11 C. C. A., 209; 63 Fed., 310.)
So far as appears by these instructions [of the circuit court to the jury] none of the appellants were under any continuing contract to labor for their employer. Each one could have quit without incurring any civil liability to him. What each one could rightfully do certainly all could do if they so desired, especially when their concerted action was taken peaceably, without any threats, violence, or attempts at intimidation. There is no law to compel one man or any body of men to work for or with another who is personally obnoxious to them. If they can not be by law compelled to work, I am wholly unable to see how they can incur any personal liability by simply ceasing to do that which they have not agreed to do, and for the performance of which they are under no obligation whatever.
Under our law every workman assumes many risks arising from the incompetency or negligence of his fellow-workmen. It would be an anomalous doctrine to hold that after his fellows have concluded that he was not a safe or even a desirable companion they must continue to work with him under the penalty of paying damages if by their refusal to do so the works are for a time stopped and he thrown out of emplos. ment. We can not believe it to be in accordance with the spirit of our
institutions or the law of the land to say that a body of workmen must respond in damages because they, without malice or any evil motive, peaceably and quietly quit work which they are not required to continue rather than remain at work with one who is for any reason unsatisfactory to them. To so hold would be subversive of their natural and legal rights, and tend to place them in a condition of involuntary servitude.
The supreme court of this State in 1887, in the case of State v. McCahill (72 Iowa, 111), a case growing out of a strike, rendered a decision to the following effect, as shown by the syllabus of the opinion:
Where there is a conspiracy to accomplish an unlawful purpose, as the forcible driving out of newly-employed miners by old miners on a “strike," and the means to be used are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any coconspirator in the accomplishment of the purpose in which they are all at the time engaged; and when a homicide is thus committed, each is responsible for it, the same as if done by himself.
A decision was rendered December 13, 1898, by the court of appeals of this State in the case of Hundley v. Louisville and Nashville Railroad Company (48 Southwestern Reporter, 429), in which a petition to recover damages for blacklisting was dismissed on demurrer.
The petition averred that the plaintiff, while engaged in the discharge of his duty as an employee of the railroad company, was wrongfully, unlawfully, and maliciously discharged by it; that it wrongfully, unlawfully, and maliciously blacklisted him by placing upon its records a pretended cause of discharge, to wit, neglect of duty, with a view of injuring and preventing him from entering its employment or that of other railroad companies; that it had entered into a conspiracy and combination with other railroad companies by which its employees discharged for cause should not be given employment by other railroad companies; that on account of the acts of the company he had been deprived of the right to again engage in the employ of the defendant or other railroad companies; and that the wrongful acts mentioned were committed for the purpose of making, and had made, it impossible for him to ever again get employment from any railroad company in the United States.
In affirming the judgment of a lower court in the case which sustained a demurrer to the petition, the appellate court stated that the petition did not state a cause of action, because it did not allege the commission of an overt act consequent upon the agreement or conspiracy to do wrong; that the agreement or conspiracy did not injure the plaintiff, and could not unless its purposes were carried out; that the injury was the gist of such an action; that the liability was damages for doing, and not for conspiracy, and that to have shown a cause of action the petition should have averred that the plaintiff had sought and been refused employment by reason of the alleged wrongful acts, which it did not do.
In defining the rights of employer and employee in a case of this kind, the opinion of the court contained the following:
It is the part of every man's civil rights to enter into any lawful business, and to assume business relations with any person who is capable of making a contract. It is likewise a part of such rights to refuse to enter into business relations, whether such refusal be the result of reason, or of whim, caprice, prejudice, or malice. If he is wrongfully deprived of these rights, he is entitled to redress. Every person sui juris is entitled to pursue any lawful trade, occupation, or calling. It is part of his civil rights to do so. He is as much entitled to pursue his trade, occupation, or calling, and be protected in it, as is the citizen in his life, liberty, and property. Whoever wrongfully prerents him from doing so .nflicts an actionable injury. For every injury suffered by reason of a violent or malicious act done to a man's occupation, profession, or way of getting a livelihood, an action lies. Such an act is an invasion of legal rights. A man's trade, occupation, or profession may be injured to such an extent, by reason of a violent or malicious act, as would prevent him from making a livelihood. One who has followed a certain trade or calling for years may be almost unfitted for any other business. To deprive him of his trade or calling is to condemn, not only him, but perchance a wife and children, to penury and want. Public interests, humanity, and individual rights, alike, demand the redress of a wrong which is followed by such lamentable consequences. A railroad company has the right to engage in its service whomsoever it pleases, and, as part of its right to conduct its business, is the right to discharge anyone from its service, unless to do so would be in violation of contractual relations with the employee. It is the duty of a railroad company to keep in its service persons who are capable of discharging their important duties in a careful and skillful manner. The public interest, as well as the vast property interests of the company, require that none other should be employed by it. Its duty in this regard and its right to discharge an employee does not imply the right to be guilty of a violent or malicious act, which results in the injury of the discharged employee's calling. The company has a right to keep a record of the causes for which it discharges an employee, but in the exercise of this right the duty is imposed to make a truthful statement of the cause of the discharge. If, by an arrangement among the railroad companies of the country, a record is to be kept by them of the causes of the discharge of their employees, and when they are discharged for certain causes the others will not employ them, it becomes important that the record kept should contain a true statement of the cause of an employee's discharge. A false entry on the record may utterly destroy and prevent him from making a livelihood at his chosen business. Such false entry must be regarded as intended to injure the discharged employee; therefore a malicious act. If it is the custom of the railroads of the country to keep such record,
and that employees discharged for certain causes are not to be employed by them, then it enters into, and forms part of, every contract of employment that neither a false entry shall be made, nor one so made communicated, directly or indirectly, to any other railroad company. Suppose it was the custom of the railroads, when an employee was discharged without cause, to give him a card or statement to that effect, and if he did not have such card or statement he could not get employment with other railroad companies, then that custom would enter into every contract of employment; and if a company wrongfully refused to give it to the discharged employee, and in consequence of which refusal he was injured, a cause of action would lie for the damages sustained.
An action was brought in the supreme judicial court of this State, nisi prius term, in Waldo County, by Webster C. Perkins against Fremont Pendleton and others, to recover damages for injury resulting from the action of defendants in coercing Perkins's employer, the Mount Waldo Granite Company, to discharge him. The reason set forth for the action of the defendants was that the plaintiff would not join the Granite Cutters' National Union. To the plaintiff's declaration the defendants demurred, said demurrer being overruled by the presiding judge, who held the declaration good. The case was then carried before the full bench at the law term upon exceptions, and its deci. sion, rendered April 9, 1897, affirmed the decision of the court below. The case is reported in 38 Atlantic Reporter, page 96, under the title of Perkins v. Pendleton et al.
The following is quoted from the opinion of the court: .
It must be conceded that for a person to wrongfully—that is, by the employment of unlawful or improper means-induce a third party to break a contract with the plaintiff, whereby injury will naturally and probably, and does in fact, ensue to the plaintiff, is actionable; and the rule applies both upon principle and authority as well to cases where the employer breaks his contract as where it is broken by the employee; in fact it is not confined to contracts of employment.
But in this case the plaintiff does not allege that the Mount Waldo Granite Company was induced by the wrongful means adopted by the defendants to break a contract, nor that there was any contract between the plaintiff and the employers for any definite time. We must, therefore, assume that there was none, that either party had the right to terminate the employment at any time, and that the act of the Mount Waldo Company in discharging the plaintiff was lawful, and one which the company had a perfect right to do at any time. The question presented, then, is whether a person can be liable in damages for inducing and persuading, by threats or other unlawful means, an employer to discharge his employee when the terms of the contract of service are such that the employer may do this at his pleasure, without violating any legal right of the employee. The question is a novel one in this State, but it has already arisen and been passed upon by the courts of some other States.
Our conclusion is that wherever a person, by means of fraud or intimidation, procures either the breach of a contract or the discharge of a plaintiff from an employment, which, but for such wrongful interference, would have continued, he is liable in damages for such injuries as naturally result therefrom; and that the rule is the same whether by these wrongful means a contract of employment definite as to time is broken, oran employer is induced, solely by reason of such procurement, to discharge an employee, whom he would otherwise have retained.
We think that the important question in an action of this kind is as to the nature of the defendant's act, and the means adopted by him to accomplish his purpose. Merely to induce another to leave an emplorment, or to discharge an employee, by persuasion or argument, however whimsical, unreasonable, or absurd, is not, in and of itself, unlawful, and we do not decide that such interference may become unlawful by reason of the defendant's malicious motives, but simply that to intimidate an employer by threats, if the threats are of such a character as to produce this result, and thereby cause him to discharge an employee whom he desired to retain, and would have retained, except for such unlawful threats, is an actionable wrong.
In 1840 certain journeymen shoemakers, members of the Boston Journeymen Bootmakers' Society, were indicted and tried for conspiracy in the municipal court of Boston. They were convicted, and the case was carried to the supreme court upon exceptions, which reversed the decision of the lower court and the judgment was arrested. The case, Commonwealth v. Hunt et al. (4 Metcalf, 111), has been so often referred to by recent writers and speakers on the labor question, and the decision of Chief Justice Shaw therein has been so often appealed to as having decided very definitely in favor of the right of workmen to combine with the object of raising their wages, etc., that rather copious extracts from the opinion delivered by Chief Justice Shaw, including a sufficient statement of the allegations in the indictment, are here reproduced. A careful reading will doubtless convince the reader that the only point definitely settled in this case was that the indictment as framed did not charge a criminal conspiracy, not that the facts developed were absolutely insufficient to support an indictment had it been properly framed. The following is quoted from the opinion:
Without attempting to review and reconcile all the cases, we are of opinion that, as a general description, though perhaps not a precise and accurate definition, a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. We use the term criminal or unlawful because it is manifest that many acts are unlaw. ful which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy and punishable by indictment.