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of men against another set, carried on for the purpose of gain, even to the extent of intending to drive from business that other set and actually accomplishing that result, be actionable unless there was actual malice. Malice, as here used, does not merely mean an intent to harm, but means an intent to do a wrongful harm and injury. An intent to do a wrongful harm and injury is unlawful, and if a wrongful act is done to the detriment of the rights of another it is malicious, and an act maliciously done, with the intent and purpose of injuring another, is not lawful competition. In this case it is clear the evidence sustained the allegations of the plaintiff's declaration, and there is here no contention on the facts.
In the case of McDonald v. Illinois Central Railroad Company (58 Northeastern Reporter, 163), an action was brought against the railroad company by one William F. McDonald to recover damages for blacklisting. He alleged that he had been for five years in the employ of said company as a switchman and conductor; that on or about June 26, 1894, he voluntarily left the service of the company as one of a number of striking employees; that said company and the other defendant railroad companies entered into a conspiracy, agreement, and understanding with other railroad companies, having lines of railway running into the city of Chicago, to the effect that they would furnish, each to the other, information as to all their employees who had left their service during the strike which commenced on or about June 26, 1894, and ended on or about August 6, 1894, commonly known as the “A. R. U.” or “American Railway Union” strike, and as to all their employees who were members of the A. R. U., and that such employees of any and all said companies would not be employed by any of said companies without a release and consent from the railway company by which any such employee was last employed, such release and consent being commonly called by railroad men a “clearance," and that on account of said conspiracy, etc., McDonald was prevented from obtaining employment. In the trial court, an inferior court in the State of Illinois, the defendants entered a demurrer to the plaintiff's declaration, which was sustained by the court and a judgment in favor of the defendants was rendered. The plaintiff appealed to the appellate court for the first district of Illinois and said court affirmed the judgment of the lower court. He then carried the case upon a writ of error to the supreme court of the State, which rendered its decision October 19, 1900, and aflirmed the judgment of the appellate court.
The opinion of the supreme court was delivered by Chief Justice Boggs, who used the following language therein:
Counsel for plaintiff in error [McDonald], in support of his insistence that the circuit court erred in holding the declaration did not state a cause of action, says: “The question presented by the declaration and demurrer (when shorn of legal phraseology) is simply this: Is it lawful for all the employers in any line of industry to combine and agree that they will not hire any of each other's employees who have left the service of any one of them, unless the employer whose service he has left gives his consent that such employee may be employed? Or, to put it in another form: Is it lawful for all the employers in any line of industry to combine and conspire together to punish a man who leaves their service during a strike by refusing him employment, and thus preventing him from securing employment at his trade, unless his former master emancipates him by giving his consent to his employment?”
We do not think the question in either of its forms was presented to the trial judge by the pleadings.
Under every rule of construction of pleadings, there is no issuable averment that the companies defendant agreed the consent of either should be essential to the employment by the other of such companies of a discharged employee, but only that an employee who had voluntarily quit the employ of either of the companies during the strike should not be employed by the other unless he could produce the “clearance” or “clearance card” in common use among railroad circles, and commonly called by railroad men a “clearance." The declaration, by its own language, explains that the instrument of “release or consent” referred to by the pleader is simply that known and commonly called a “clearance" among railroad men. It is not averred the defendant companies (defendants in error here), or any of the corporations named in the declaration, agreed or had an understanding that employees who had joined in the strike mentioned in the declaration should not be granted “clearance cards.” On the contrary, the inference deducible from all that is said on the point in the declaration is that the railroad companies continued to grant clearances after the strike as before, and that plaintiff in error applied to defendant in error, the Illinois Central Railroad Company, for a “clearance card." The declaration does not charge said defendant company refused to grant him a “clearance card” or a “clearance” setting forth truthfully all facts proper to be stated in a “clearance card,” but the language of the declaration is that said company refused to give him such an instrument as would "enable him to obtain employment in the railroad business.”
In what respect the release and consent or clearance which it is plainly inferred the company was willing to give the plaintiff was insufficient to enable him to obtain employment from other railroad corporations is not disclosed. The declaration does not charge that the Illinois Central Railroad Company refused to state fully and fairly all facts proper to be inserted in such an instrument, or that it inserted or desired to insert in the clearance any statement that was false or injurious to him, or that had no proper place in his clearance paper. The company was not required to give him a clearance that would enable him to get employment from other companies operating railroads. As we said in the Jenkins case (174 Ill., 398): “Such a card is in no sense a letter of recommendation, and in many cases might, and probably would, be of a form and character which the holder would hesitate and decline to present to any person to whom he was making application for employment.” Whether the charge included in the question formulated by the counsel for the plaintiff in error would constitute a cause of action was not presented to the trial court by the declaration, and we agree with the view entertained by the trial court, that the declaration failed to state a cause of action.
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 12 of the Northeastern Reporter, page 367, under the title of Clemitt et al. r. 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. Even 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 employment. 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 aflirming 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 beru 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 capble 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 prevents 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 inalicious 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,