THE LAW OF TRADE AND LABOR COMBINATIONS. PART I. COMBINATIONS PRODUCING PRIVATE INJURY. 1. General liability for injury to another. The existence in this world of numerous human beings, most of them in close proximity to one another, gives rise to the eternal and universal conflict between the interests of one's self and those of others. Law, both human and divine, is concerned with the establishment of rules to harmonize these conflicting interests. In this treatise we are specially concerned with this conflict as it is produced in the course of strictly trade or commercial relations. But there seem to be no legal burdens or restrictions placed upon a trader, merely by reason of his being a trader. Not merely to trade relations, but to all the other relations in life wherein exists the possibility of conflict between the interests of one's self and those of others,' applies the doctrine long since established, that, "in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages." The application of 1 See remarks of Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 614 (1889); and article by J. H. Wigmore in 21 Am. Law Rev. 521 (1887). 2 the Case, p. 278, cited in Walker v. Cronin, 107 Mass. 555, 562 (1871). So far as injury results from words, the rule on this subject is closely related to the law of libel. In 21 Comyn's Digest, Action upon Hollenbeck v. Ristine, Iowa, this doctrine to acts of purely physical violence, or acts producing fear of violence, to person or property, is comparatively easy. Recently the idea has gained currency that the doctrine applies to protect not only property, but "business." But the cases of alleged interference with "business," -; s. c., 75 N. W. Rep. 355 (1898), it was held actionable to write a letter to the plaintiff's employer resulting in his discharge from employment, even on the assumption that the letter was not defamatory, so as to sustain a technical action for libel. 1 Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112; s. c., 30 Atl. Rep. 881 (1894; business of publishing newspaper, including the right to use "plate" matter therein); Van Horn v. Van Horn,, 52 N. J. Law, 284; s. C., 20 Atl. Rep. 485 (1890); Same v. Same, 56 N. J. Law, 318; s. c., 28 Atl. Rep. 669 (1894); State v. Donaldson, 32 N. J. Law, 151, 155 (1867); State v. Stewart, 59 Vt. 273, 289; s. c., 9 Atl. Rep. 559 (1887); State v. Glidden, 55 Conn. 46, 71; s. c., 8 Atl. Rep. 890 (1887; business of publishing newspaper); Crump v. Commonwealth, 84 Va. 927, 934; s. c., 6 S. E. Rep. 620 (1888); Doremus v. Hennessy, 62 Ill. App. 391, 405 (1895); Nashville, Chattanooga, etc. Ry. Co. v. McConnell, 82 Fed. Rep. 65, 80 (Cir. Ct. Tenn., 1897); Davis v. Zimmerman, 91 Hun, 489; s. c., 36 N. Y. Suppl. 303 (1895); Jackson v. Stanfield, 137 Ind. 592, 613; s. C., 36 N. E. Rep. 345 (1894); Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 614 (1889); Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889). As instances of interference with business, held to be unlawful, the following are cited by Bowen, J., in the case just cited: The intentional driving away of customers by show of violence, Tarleton v. McGawley, Peake, N. P., 205 (1793); the obstruction of actors on the stage by preconcerted hissing, Clifford v. Brandon, 2 Campbell, N. P. 358 (1810); Gregory v. Duke of Brunswick, 6 Manning & Gr. 205 (1843); the disturbance of wild fowl in decoys by the firing of guns, Carrington v. Taylor. 11 East, 571 (1809); Keeble v. Hickeringill, Id. 574, note (1706); the impeding or threatening servants or workmen, Garret v.Taylor, Cro. Jac. 567 (1620). But in State v. Donaldson, 32 N. J. Law, 151, 155 (1867), combining to induce the discharge of fellow-employees by the announcement of an intention to quit employment, was held not indictable as "an injury to trade" under the statute, the court saying: "It is true that, at a far remove, an injury to an individual manufacturer may affect trade injuriously; but, in the same sense, so it is true, will an injury inflicted on a consumer of manufactured articles. But it is not this undesigned and incidental damage which is embraced within the statutory denunciation." See, generally, as to liability for wrecking and breaking up a business, McCartney v. Berlin, 31 Neb. 411; s. c., 47 N. W. when analyzed, resolve themselves either into mere cases of injury or threat of injury to person or property (the additional category of injury to business being of course unnecessary as to such cases), or into mere cases of inducing a refusal to deal. In other words, the introduction of the term "injury to business" serves to make more plausible the doctrine that merely inducing a refusal to deal is unlawful. But, in the view we take, an injury to "business" has no independent existence.1 Rep. 1111 (1891); Murray v. McGarigle, 69 Wis. 483; s. c., 34 N. W. Rep. 522 (1887). Compare Smith v. Nippert, 76 Wis. 86; s. c., 44 N. W. Rep. 846 (1890). For statutes bearing on the subject, see Appendix. In State v. Glidden, above, it was pointed out that the injury was not only to the business of the newspaper publisher, but to that of his employees - the fellow-workmen of the parties offending. See Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 816 (Cir. Ct. Wis., 1894). As to whether the existence of a combination illegal as in restraint of competition furnishes ground for an action by a third party, see $ 29. 1 This seems to be in substantial accord with the view taken in Allen v. Flood, L. R. App. Cas. (1898), 1, where Lord Herschell (p. 133, and see views of Lord Davey to same effect, p. 173) vigorously disputes the proposition that "every man has a right to pursue his trade or calling without molestation or obstruction, and that any one who by any act, though it be not otherwise unlawful, molests or obstructs him, is guilty of a wrong unless he can show lawful justification or excuse for so doing." After discussing authorities cited as supporting this proposition, it is said (p. 137): "In all of them the act complained of was in its nature wrongful: violence, menaces of violence, false statements. . . . The act was not wrongful merely because it affected the man in his trade, though it was this circumstance which occasioned him loss;" and again (p. 138): "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." See criticism of remarks of Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 613 (1889). § 2. Effect of presence of intent to injure.- Great confusion and conflict in the decisions relating to the legality of trade and labor combinations have resulted from the introduction of intent to injure, as constituting an element of civil liability. It is clear that an injury may be actionable, though without the existence of the slightest intent to injure.1 But, on the other hand, supposing an act producing injury to be otherwise damnum absque injuria, and to give the injured party no right of action, is such a right of action created by the circumstance that the act was done with intent to injure? On this point there is confusion and conflict among the authorities, and judging from them it would seem to have been said with truth that "the English law, which in its earlier stages began with but an imperfect line of demarcation between torts and breaches of contract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong." Nevertheless, until recently at least, the weight of opinion seems to have favored the view that no right of action is created under these conditions. But re 1 As in case of trespass and conversion. See Pollock on Torts, p. 9. 2 By Bowen, J., in Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 613 (1889). That the animus vicino nocendi did so enter into the conception of a wrong as viewed by the Roman law, see Pollock on Torts, p. 136. 3 This is now the established law in England. The point was elaborately discussed in Allen v. Flood, L. R. App. Cas. (1898), 1. For facts see § 12. Here it was said by Lord Watson (p. 92): "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." So by Lord Shand (p. 167): "The exercise by a person of a legal right does not become illegal because the motive of action is improper or malicious." See also p. 171. To what singular results the doctrine recognizing the efficacy of evil motive might lead, even supposing it to be limited to cases of interference with a man's trade or employment, is very forcibly pointed out by Lord Watson (p. 100). On this point such decisions as Bowen v. Hall, 6 L. R. Q. B. D. 333 (1881), and Temperton v. Russell, 1 L. R. Q. B. (1893), 715, so far as they hold or declare to the contrary, are overruled. Allen v. Flood was followed on this point in Huttley v. Simmons, 1 L. R. Q. B. cently, and especially in connection with the determination of the legality of acts of trade and labor combinations, the doctrine seems to have gained ground that an act producing injury, though otherwise giving the injured party no right of action, may be actionable if done with an intent to do the injury. The confusion and uncertainty resulting from bring(1898), 181; Ajello v. Worsley, 1 L. R. Ch. (1898), 274. This view is also very forcibly and elaborately contended for in Payne v. Western & Atlantic R. R. Co., 13 Lea (Tenn.), 507 (1884); Chambers v. Baldwin, 91 Ky. 121; s. c., 15 S. W. Rep. 57 (1891); Boyson v. Thorn, 98 Cal. 578; s. C., 33 Pac. Rep. 492 (1893); S. P., Bohn Manuf. Co. v. Hollis, 54 Minn. 223; s. C., 55 N. W. Rep. 1119 (1893); Ulery v. Chicago Live-stock Exchange, 54 Ill. App. 233, 241 (1894); People v. Davis, 57 Alb. Law Jour. 170 (Cook Co., Ill., Crim. Court, 1898). See Rogers v. Evarts, 17 N. Y. Suppl. 264 (Sup. Ct. Sp. T. 1891); Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 133, 134 (1842); Lough v. Outerbridge, 143 N. Y. 271, 282; s. C., 38 N. E. Rep. 292 (1894). For discussion of cases of malicious prosecution and libel and slander, see Allen v. Flood, above (pp. 125, 172). 1 This view is indicated in Walker v. Cronin, 107 Mass. 555, 562 (1871), where, after stating the rule allowing an action for "loss or damage by the wrong of another" (see p. 1, note 2), it is added: "The intentional causing of such loss to another, without justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong." The doctrine is thus forcibly stated in State v. Glidden, 55 Conn. 46, 71; s. c., 8 Atl. Rep. 890 (1887), where a conspiracy was held unlawful as designed to injure the business of a newspaper: "The motive was a selfish one: to gain an advantage unjustly and at the expense of others; and therefore the act was legally corrupt. As a means of accomplishing the purpose, the parties intended to harm the company, and therefore it was malicious." Other authorities upholding the view that intent is an element to be considered in determining liability are Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 737 (Cir. Ct. Ohio, 1893); Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. Rep. 803, 818 (Cir. Ct. Ohio, 1894); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 116; s. c., 30 Atl. Rep. 881 (1894); Continental Ins. Co. v. Board of Underwriters, 67 Fed. Rep. 310, 320 (Cir. Ct. Cal., 1895); Doremus v. Hennessy, 62 Ill. App. 391, 405 (1895); Chesley v. King, 74 Me. 164 (1882). This case last cited contains a very instructive discussion of the general question; but see Heywood v. Tillson, 75 Me. 225 (1883). See also United States v. Debs, 64 Fed. Rep. 724, 765 (Cir. Ct. Ill., 1894), affirmed in Re Debs, 158 U. S. 564, 598; s. c., 15 Supm. Ct. Rep. 900 (1895). For an application of the rule of liability |