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Payne v. Western and Atlantic Railroad Company. broken. This secures to all civil and industrial liberty. A contrary rule would lead to a judicial tyranny as arbitrary, irresponsible and intolerable as that exercised by Scroggs and Jeffreys.

But plaintiff says that the defendants wickedly and maliciously combined and confederated for the unlawful purpose of causing plaintiff's customers, by means of threats and intimidation, to leave off trading with him; and that the unlawful purpose was accomplished by these means, and thus plaintiff's business was ruined and he caused to suffer great pecuniary loss; and he urges that defendants are liable in damages therefor, because every act done fraudulently or maliciously, and for the purpose and with the effect of injuring another in his lawful business gives good cause of action; and so the referees have reported; and therefore they recommend the reversal of the judgment sustaining the demurrer.

If defendants, by means of "threats and intimidation," have driven away plaintiff's customers and thus destroyed his trade, they have injured him by an unlawful act, and are liable to him in damages whether they did it wickedly and maliciously or not. For it is unlawful to threaten and intimidate one's customers; and the loss of trade is the natural and proximate result of such acts. But "threats and intimidations" must be taken in their legal sense. In law a threat is a declaration of an intention or determination to injure another by the commission of some unlawful act; and an intimidation is the act of making one timid or fearful by such declaration. If the act intended to be done is not unlawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense. So too of the alleged conspiracy. A conspiracy is an agreement between two or more persons to do an unlawful act. If the act to be done is not unlawful then the agreement or combination is not a conspiracy. The question then is, what were the acts done, or intended or agreed to be done, by which the trading was prevented?

In the second count, which plaintiff specially relies on to sustain this view of his case, after charging generally the use of threats and intimidation, he specifies as follows: "The said defendants threatened among other things to discharge any man in the employ of said railroad company who should trade with plaintiff, and this threat was published," etc. This is the only "threat or intimidation" specified. But this act was not unlawful as we have seen, and to denounce a determination to do it and thus deter customers

Payne v. Western and Atlantic Railroad Company.

from trading with plaintiff, was not "threat or intimidation " in a legal sense. From this it is fairly inferable that in this count as in the first, plaintiff, though he uses the general terms "unlawful and malicious threats," refers only to the so-called "threat" to discharge employees, and rests his case upon it. Presumably he has particularized the most wrongful act, or at the most the other "unlawful and malicious acts" are of the same, and no worse character than that specified. This act, he says, was done by the defendants wickedly and maliciously with the intent and effect of breaking up his business.

The question then is, is an act not unlawful rendered actionable to the one suffering injury therefrom, because it is committed willfully, wickedly and maliciously, and in pursuance of a conspiracy to do the injury suffered? Does one render himself liable in damages for maliciously and wickedly exercising his rights or denouncing his intention of so doing, if thereby he injures another?

The cases relied on by plaintiff, cited by Mr. Addison in his work on Torts, sections 20, 22, where tenants were driven away from holdings, scholars frightened from school, persons prevented from trading at one's store or with his vessel, buyers and workmen driven from a quarry, do not serve as precedents, for the reason that in all of them the defendants either committed or threatened unlawful acts. In most of them violence was used or menaced; in some, statutory misdemeanors were committed, in others fraud, duress or libel was resorted to. This relieved the cases of the difficulty or doubt which exists in this, where there is no libel, violence or broken statute. In section 40 however it is declared broadly, that "every malicious act is wrongful in itself in the eye of the law, and if it causes hurt or damage to another it is a tort, and may be made the foundation of an action." Upon this plaintiff relies, and upon it the referees have based their report; and if this broad statement contains a correct exposition of the law, they are right, and the demurrer should be overruled; for the declaration abounds in charges of malice and wrong. But is this the law?

To answer this correctly it must first be understood what is meant by "malicious act." In common parlance it is an act proceeding from hatred or ill-will, or dictated by malice, or done with wicked or mischievous intentions or motives. But surely this cannot be the sense in which the phrase is employed by Addison; for if it were, then my neighbor would be liable to me, if from ill-will

Payne v. Western and Atlantic Railroad Company.

or wicked motive he refused to let me get water at his spring; or to make a road for myself across his farm, or locked his pump or his gate against me, or built a fence on his own land across my path; or built his store or shop or a high fence on his own land in such close proximity to my windows as to exclude light and view; or digged on his lot below the foundation of my house so as to endanger it. It is unreasonable that actions should be maintained for any of these things. For though my neighbor is causing me hurt, and that too from wicked motives, and is thus violating the moral law, he is only exercising his undoubted right to use his own for himself and deny me all privilege in it; and this the law does not punish as has been often ruled in courts of the highest character. Story v. Odin, 12 Mass. 157; Mahan v. Brown, 13 Wend. 261; Auburn and Cato Railroad Company v. Douglass, 9 N. Y. 447; Lasala v. Holbrook, 4 Paige, 169; Thurston v. Hancock, 12 Mass. 220.

Judge Cooley, in his work on Torts, page 278, says: "It is a part of every man's civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern." And again on page 688: "The exercise by one of his legal right cannot be a legal wrong to another. What

ever one has a right to do another can have no right to complain of." This he considers a mere truism.

Baron PARKE said in Stevenson v. Newnham, 13 C. B. 285: “An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." And Judge BLACK, in Jenkins v. Fowler, 24 Penn. St. 308, declares: "Any transaction which would be lawful and proper, if the parties were friends, cannot be made the foundation of action merely because they happened to be enemies. As long as a man keeps himself within the law by doing no act which violates it we must leave his motives to Him who searches the heart." Judge COOPER, in accordance with these views, has declared in Macey v. Childress, 2 Tenn. Ch. 442: "It is no defense to a legal demand instituted in the mode prescribed by law that the plaintiff is actuated by improper motives. The motive of a suitor cannot be inquired into. Were it otherwise nearly every suit would degenerate into a wrangle over motives and feelings." The question was ably argued and received elaborate consideration in the Supreme Court of Maine in the recent case of

Payne v. Western and Atlantic Railroad Company.

Heywood v. Tillson, 75 Me. 225; s. c., 46 Am. Rep. 373; wherein it was decided without dissent that no action lies by the owner of a house against one who maliciously refuses to employ any tenant of such house and thus prevents the renting. Indeed the contrary ruling would lead to evils innumerable. It would be unendurable that our courts of law should be perverted to the trial of the motives of men who confessedly had done no unlawful act. It is suggestive of the days of "constructive treason."

Upon both reason and authority it seems obvious therefore that the phrase "malicious act" cannot be used by Mr. Addison in this connection in the popular signification as understood and applied by the referees in this case; or if so used by him it is not a correct statement of the law.

In another sense it is correct. Prof. Greenleaf in his second volume on Evidence, section 453 (2), thus defines a malicious act: "In a legal sense any unlawful act, done willfully and purposely to the injury of another is as against that person, malicious." To determine then whether a "malicious act" is "wrongful," in the legal sense and therefore actionable, we must first determine whether it is unlawful. But if unlawful and injurious it is actionable, irrespective of the motive; and whether malicious or not, if not unlawful and injurious, then it is not actionable even though malicious and wicked.

Plaintiff appeals with confidence to the legal maxim: There is no wrong without its remedy. Far be it from us to shake the public and professional confidence in this venerable maxim of the English common law. Its influence has long been and will long continue most wholesome in preventing the private redress of real and imaginary wrongs. But as it is a legal maxim it must be taken in a legal sense. So taken it can obviously mean no more than that there is a legal remedy for every legal wrong, i. e., every injury suffered as the consequence of an unlawful act or a lawful act done in an ur.lawful manner. Neither is shown here. fendants have merely warned their employees not to trade with plamtiff; if they do they must give up their employment. They had the right to discharge them on this ground; it was not unlawful, but highly proper therefore to give them warning of their intention. The manner of giving the warning was not unlawful or even censurable. The posted notice contained no word of slander, libel or reproach upon the character of

De

Payne v. Western and Atlantic Railroad Company.

plaintiff; no charge or insinuation that he was dishonest or unfair in his dealing. Omitting any attack on plaintiff's character as a man or trader, defendants, in the usual manner, and in a few harmless words, told its employees to stop trading with him or they must stop working for them. The common law does not forbid such an act, nor has our legislature yet endeavored to make such an act unlawful by statute, as has been done in some of the States, and probably in England. No legal wrong has been done; therefore there is no legal remedy. For the moral wrong of the act, if there be any, defendants may be called to account in another tribunal. Courts administering the civil law cannot punish sin or wickedness unless it be committed in violation of the civil law, which is the measure of their jurisdiction.

Nor will the maxim "sic utere tuo, ut alienum non lædas" aid the plaintiff in his contention. As commonly translated, "So use your own as not to injure another's," it is doubtless an orthodox moral precept; and in the law too it finds frequent application to the use of surface and running water, and indeed generally to easements and servitudes. But strictly even then it can mean only: "So use your own that you do no legal damage to another's." Legal damage, actionable injury, results only from an unlawful act. This maxim also assumes, that the injury results from an unlawful act, and paraphrased means no more than: "Thou shalt not interfere with the legal rights of another by the commission of an unlawful act," or "Injury from an unlawful act is actionable." This affords no aid in this case in determining whether the act complained of is actionable, that is, unlawful. It amounts to no more than the truism: An unlawful act is unlawful. This is a mere begging of the question; it assumes the very point in controversy, and cannot be taken as a ratio decidendi.

A majority of the court therefore conclude that the act done, i̟ e., the publication of the notice that the company would discharge employees who traded with plaintiff, was not an unlawful threat nor an unlawful act; was not a libel; and though done wickedly and maliciously, and in pursuance of a wicked design, is still not actionable, because it was not an unlawful act, nor an act done in an unlawful manner.

The report of the referees will therefore be set aside, and the judgment of the Circuit Court affirmed.

FREEMAN and TURNER, JJ., dissented.

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