Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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be very tender of that. Besides it is intricate, and there may be
contrariety of opinions. But this matter can never come in question
in parliament; for it is agreed that the persons for whom the
plaintiff voted were elected; so that the action is brought for being
deprived of his vote: and if it w^ere carried for the other candidates
against whom he voted, his damage would be less. To allow this
action will make public officers more careful to observe the consti-
tution of cities and boroughs, and not to be so partial as they com-
monly are in all elections, which is indeed a great and growing mis-
chief, and tends to the prejudice of the peace of the nation. But
they say, that this is a matter out of our jurisdiction, and we ought
not to inlarge it. I agree we ought not to incroach or inlarge our
jurisdiction; by so doing we usurp both on the right of the queen
and the people : but sure we may determine on a charter granted by
the king, or on a matter of custom or prescription, when it comes
before us without incroaching on the parliament. And if it be a
matter within our jurisdiction, we are bound by our oaths to judge
of it. This is a matter of property determinable before us. Was
ever such a petition heard of in parliament, as that a man was
hindered of giving his vote, and praying them to give him remedy?
The parliament undoubtedly would say, take your remedy at law. It
is not like the case of determining the right of election between the

candidates.

My brother Powell says, that the plaintiff's right of voting
ous-ht first to have been determined in parliament."^ * * * Let us

* Citing two cases, Turner v. Stirling — action by unsuccessful candidate
;\~ainst an officer for refusing to take a poll, and Hunt v. Dozinnan. 2 Cro.
J78 action by reversioner against lessee, who had denied him entry for pur-
pose of seeing whether any waste had been committed. In both, action on
the case was held to lie though no damage was shown other than the denial
of a right.

'As to Powell, J.'s suggestion that no action lay till Parliament had ad-



ASHBv :'. wiiiTi; iSi

consider wherein the law consists, and we shall find it to be, not in
particular instances and precedents, but on tlie reason of the law,
and ubi cadem ratio, ibi idem jus. This privilege of voting does not
differ from any other franchise whatsoever. If the house of com-
mons do determine this matter, it is not that they have an original
right, but as incident to elections. But we do not deny them their
right of examining elections, but we must not be frighted when a
matter of property comes before us, by saying it belongs to the
parliament; we must exert the queen's jurisdiction. * * *

Therefore my opinion is, that the plaintiff ought to have judg-
ment.

Friday, the 14th of January, 1703, this judgment was re-
versed in the house of lords, and judgment given for the plaintiff
by fifty lords against sixteen. Trevor chief justice and baron Price
were of opinion with the three judges of the king's bench. JVard
C. B. and Bury and S}iiitJi barons were of opinion with the lord
chief justice Holt, Tracy dnbitante, Nevill and Blencotve absent.

Upon the arguments of this case Holt chief justice said, the
plaintiff has a particular right vested in him to vote. Is it not then
a wrong and an injury to that right, to refuse to receive his vote?
So if a borough has a right of common, and the freemen are hind-
ered from enjoying it by enclosure or the like, every freeman may
maintain his action. This action is brought by the plaintiff for the
infringement of his franchise. You would have nothing to be a
damage, but what is pecuniary, and a damage to property. If a man
has rctorna brevium, although no fees were due to him at common
law, yet if the sheriff enters within his liberty, and executes
process there, it is an invasion of his franchise, and he may bring
his action: and there is the same reason in this case. Althoueh
this matter relates to the parliament, yet it is an injury preceda-
neous to the parliament, as my lord Hale said in the case of
Bernardiston v. Soamc, 2 Lev. 114. 116. The parliament cannot
judge of this injury, nor give damage to the plaintiff for it: they
cannot make him a recompense. Let all people come in, and
vote fairly; it is to support one or the other party, to deny any
man's vote. Ry my consent if such an action comes to be tried before
me, I will direct the jury to make him pay well for it; it is denying
him his English right, and if this action be not allowed, a man may
be forever deprived of it.^ It is a great privilege to choose such



judged plaintiff's right to vote, he holds that the phaintifT has no opportunity
to have remedy elsewhere — so he is not in like case with a patron {Elvis v.
Archbishop of York, Hobart 31S. cited by Powell, J.), who having neglected
to bring quare impedit and so having lost his statutory remedy, may not
bring an action on the case.

^ C f. Huckle V. Money. 2 Wils. 205 (1763), where as in Ashby v. White,
the plaintiff's constitutional rights as a subject were ^^olated by the arbitrary
acts of the Government in power or by those acting in its interest. Compare
the language of Pratt, L. C. J. (afterwards Lord Camden^ with that of Lord
Holt; and see for recent instances in which punitive damages have been
given in actions in the case as a deterrent to the violation by public service
corporations of the rights of the traveling public — Laird v. Pittsburg Trac-



l82 ASHBY Z\ WHITE

persons, as are to bind a man's life and property by the laws they
make.^



Hon Co. i66 Pa. 4 (1895), to give merely compensatory damages "would tend
to encourage rather than prevent the commission of mdignities to which no
well behaved passenger in a public conveyance should be subjected." Sterrett,
C. J., p. 7 and Georgia Ry. Co. v. Baker, 125 Ga. 362 (1907)-

^ One of the first uses to which the writ of trespass on the case \yas put
was to redress intentional violations of property rights of a kind which did
not fall within the precise terms of any formed writ of trespass, but where
the infringement was direct and intended and such that had the right vio-
lated been the possession of real property, it would have been a trespass.
Improperly taking tolls for use of mill against plaintiff's customary right to
have his corn ground without charge Statham's Abr. (1470 circa), Accions
sur le COS, i pi. 3, 41 Ed. 3; Fitzherbert de Naturae Brevium (i547. Dublin,
lyg^)— Trespass sur le case 94 F. 7 Hy. 4- 44, Ace. ; interference with Lord of
Manor's rights of justice, ibid. 94 G., interference with the taking a plain-
tiff's customary tolls; Statham, Action sur le case i pi. 8, 43 Ed. 3. Hil.,
disturbing a ferry; 22 Ass. 17, 22 Hy. 6. 14, lessor, ousting the executors of
the lessee of their term (trespass qiiare chssuni fugit would not lie — a term
of years being only a chattel interest, the lessor having the freehold). Fitz-
herbert 92 G. , . . ,

New social conditions and new ethical and economic conceptions have
led to a gradual but constant widening of the horizon of judicial perception
of the extent of individual rights worthy of legal protection. How slow the
process may be is shown by the length of time required for the recognition
of a wife's' right to her husband's support (see n. 5, supra). So while in
Garret v. Taylor, Croke, Jac. 567 (1620) the loss of the beneficial commercial
use of the plaintiff's property, a quarry, was recognized as sufficient damage to
support case where the defendant's conduct consisted of threats against his
workmen and customers of acts illegal in themselves, it was not till 1893 that
the English Courts in Temperton v. Russell L. R., 1893 i Q. B. 715 recognized
a legal right of general 'freedom of contract without outside interference,
the defendant's acts being wrongful only because they violated the plaintiff's
contractual freedom. Here, too, the process was gradual. In Tarhton v.
McGaidey, i Peake, N. P. 270 (1794). the defendant's acts were wrongfid as
to the negroes driven from the plaintiff's trading station. In Luniley v. Gye,
2 E. and B. 216 (1853), it was held that an existing contract gave not merely
a right of action against the promisor for its breach but a right worthy of
protection from intentional interference bv third persons, and while it has
been doubted (Peters, J., Heywood v. Tillson, 75 Me. 225 (1883), p. 241),
whether this applied to any contract save that of employment (in Lumley v.
Gye— the contract broken "was one between an opera singer and manager)
merely extending to an employer by contract the recognized rights
of a master of menial servants and journeymen, it was followed in Bozccn
V. Hall, L. R. 6, Q. B. D. 333 (1881), where the contract was for the exclu-
sive output of the defendant's bricks.

Nor is it probable that this expansion of the conception of legal rights
has reached its final limit. See Edison v. Edison Co., 67 Atl. 392 (N. J. Ch.
1907) ; Pavesich v. Ins. Co., 122 Ga. 190 (1904), in which the right to privacy-
was protected bv injunction; contra. Roberson v. Rochester Box Co.. 171 N.
Y. 538 (1902); and see the tendency in the United States to assimilate the
rights of those under whose land there exists subterranean liquids or gases
to those riehts earlv recognized as inherent in riparian owners of surface
streams. Stillwater 'Water Co. v. Farmer, 89 Minn. 58 (1903): Barclay \.
Abraham, 121 Iowa 619 (1903) ; Louisville Gas Co. v. Kentucky Heating Co.,
117 Ky. 71 (1903)-



WALKER v. CRONIN 183



WALKER V. CROXIN.

Supreme Judicial Court of Massachusetts, 1871. 107 Mass. 555.

Tort, broug-ht in the superior court. The declaration was as
follows :

"First count. And the plaintiffs say that before and at the time
of the committing of the several grievances by the defendant, as
hereinafter mentioned, they were, and from thence hitherto have
been, engaged in the manufacture and sale of boots and shoes in
the town of Milford in the county of Worcester, and have hereto-
fore made, and ought and would have continued to make, large
profits in their said business but for the said several grievances
committed by the defendant ; and they further say that in the prose-
cution of their said business it was necessary for them to enlploy,
and they did employ, a large number of persons as makers of boots
and shoes so manufactured by them, all which the defendant well
knowing did on or about the ist day of January, 1869, and at divers
times thereafter, and till the date of the plaintiffs' writ, with divers
other persons whose names are unknown to the plaintiffs, unlaw-
fully and without justifiable cause molest, obstruct and hinder the
plaintiffs from carrying on said business, with the unlawful purpose
of preventing the plaintiffs from carrying on their said business, and
wilfully persuaded and induced a large number of persons, who were
in the employment of the plaintiffs as bottomers of boots and shoes as
aforesaid, and others who w^ere about to enter into the employment
of the plaintiffs, and wdio w^ere skilled in the art of bottoming boots
and shoes, to leave and abandon the employment of the plaintiffs,
without their consent and against their will; whereby the plaintiffs
lost the services of said persons so as aforesaid employed and about
to be employed, and all the advantages and profits that they would
otherwise have made and received from the service and employment
of said persons; and the plaintiffs incurred large expenses to pro-
cure other suitable workmen to take the places of those so induced
to leave and abandon their employment, and were compelled to pay
much larger prices for said work and labor of bottoming boots and
shoes than they would otherwise have done but for the committing"
of said several grievances by the defendant and others, whose names
are to the plaintiffs unknown, although said work and labor were
of no greater value to them, and the enhanced prices they were ,
compelled to pay as aforesaid were much greater than the usual
market price for such work and labor; and the plaintiffs have been
compelled, by reason of the acts aforesaid of the defendant and the
other persons aforesaid whose names are to the plaintiffs unknown,
to pay much more for the manufacture of boots and shoes in other
branches of said manufacture, and liave been hindered in their busi-
ness to a large extent, and prevented from manufacturing the quan-
tity of boots and shoes that they would otherwise have manufac-



184 WALKER 7". CRONIN

tured, and in the manufacture of which they would otherwise have
realized large profits, all of which the defendant well knew.^

The defendant demurred, and specified the following causes of
demurrer :

"* * * 3. That it is not actionable, for the purpose alleged in
the first count, for the defendant to persuade and induce, as alleged,
the persons alleged to leave and abandon the plaintiffs' employ-
ment. * * *

"6. That there is no such relation shown between the plaintififs
and the persons alleged in the several counts to have been in their
employment or about to enter their employment, as to make the
alleged acts and conduct of the defendant in the premises unlawful."

The superior court sustained the demurrer, and the plaintiffs
appealed.

\\'ells, J. The declaration, in its first count, alleges that the
defendant did, "unlawfully and without justifiable cause, molest,
obstruct and hinder the plaintiffs from carrying on" their business
of manufacture and sale of boots and shoes, "with the unlawful
purpose of preventing the plaintiffs from carrying on their said
business, and wilfully persuaded and induced a large number of per-
sons who were in the employment of the plaintiffs," and others "who
were about to enter into" their employment, "to leave and abandon
the employment of the plaintiffs, without their consent and against
their will ;" whereby the plaintiffs lost the services of said persons,
and the profits and advantages they would otherwise have made and
received therefrom, and were put to large expenses to procure other
suitable workmen, and suffered losses in their said business.

This sets forth sufffciently (i) intentional and wilful acts (2)
calculated to cause damage to the plaintiffs in their lawful business,
(3) done with the unlawful purpose to cause such damage and loss,
without right or justifiable cause on the part of the defendant,
('which constitutes malice,) and (4) actual damage and loss re-
sulting.

The general principle is announced in Com. Dig. Action on the
Case, A.: "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 intentional causing of such loss to
another, without justifiable cause, and with the malicious purpose
-tQ^nflictltTlis'oFitsclf a wrong.^ This proposition seems to be fully



*The second and third counts, the demurrers thereto, and the argument
for defendant are omitted. Only a part of the opinion is printed.

^ The German Civil Code, enacted in 1896 and taking effect in 1900, con-
tains the following provisions :

Section 226. The exercise of a right is not permitted, when its sole ob-
ject is to injure another.

Section 826. Whoever intentionally inflicts damage upon another in a
morally reprehensible manner in bound to compensate the other for the dam-
age.

See also for Roman and Scotch law and that of Germany before the
Code, Ames' cases on Torts, p. 750, n. i.



WALKER 7'. CRONIX 185

sustained by the references in the case of Carezv v. Rutherford, io6
Mass. I, 10, II, * * *

There arc indeed many authorities which appear to hold that
to constitute an actionable wron<^ there must be a violation of some
definite legal right of the plaintiff. But those are cases, for the most
part at least, where the defendants were themselves acting in the
lawful exercise of some distinct right, which furnished the defence
of a justifiable cause fur their acts, except so far as they were in
violation of a superior right in another. * * *

— -^Every^one has a right to enjoj the fruits and advantages of his
own enterprise, industry, skill and credit.' T'TTe" lias no right to be
— jirotcctcd against competition; but he has a right to be free from
•malicious and wanton interference, disturbance or an noyance. If
disturbance oFToss cumc as a result of competition, or the exercise
of like rights by others, it is dai)innm absque injuria, unless some
superior right by contract or otherwise is interfered with. Rut if
it come from the merely wanton or malicious acts of others, without
the justification of competition or the service of any interest or
lawful purpose, it then stands upon a different footing, and falls
within the principle of the authorities first referred to.

Demurrer overruled?



'Accord: Bowen, L. J., Skinner v. Shew, L. R. 1893, i Ch. 413, p. 422;
Ames, 18 Harv. L. R. 412; Pollock. Torts 7th Ed., 319, and 22 L. Q. R. 118;
Dicey, 18 L. Q. R. 4; Smith, 20 H. L. R. 262-263; Loudon Guarantee, Etc. Co.
V. Horn, 206 111. 493 (1903) ; Graluim v. St. Charles, 47 La Ann 214 (1895) ;
Plant V. Woods, 176 Mass. 492 (1900); Martcll v. White, 185 Mass. 255
(1904) ; Barr v. Essex Trade Council, 53 N. J. Eq. loi (1894) : cf. Erdman v.
Mitchell, 207 Pa. 79 (1903), and see contra semble Parker, C. J. Nat. Assn. v.
Cummings, 170 N. Y. 315 (1902), and see Wm. Draper Lewis, 18 Harv.
L. R. 444 et seq.

Compare: Lord Macnaghtcn, Quinn v. Leathaui, L. R. 1901, A. C. 498,
p. 510. "A violation of a legal right committed knowingly is a cause of action
* * * and it is a violation of a legal right to interfere with contractual
relations (in the case in hand the contracts interfered with were principally
merely in posse) recognized by law if there be no sufficient justification" and
Lord Lindley, ibid. p. 535, "all wrongful acts done intentionally to damage a
particular individual and actually damaging him" — see also, ibid., p. 534.

The real difiiculty, is to ascertain, first, what is "temporal damage?"
(Wells, J., Ji'alkcr v. Cronin. compare Xelson, C. J., in Hutchms v. Hutch-
ins. 7 Hill 104, p. lop-iio (N. Y. 1845). and Hawkins. J., Allen v. Flood,
1898, A. C, p. 16), or what is a "legal right" (Lord ALicnaghtcn in Quinn v.
Leathant supra. See as to development of the judicial view of the extent of
legal riphts— .-/.c/z/'.v v. White, note 5 supra, p. 3.) ; and secondly, what consti-
tutes a justification? The justifications and excuse for trespasses to the per-
son and property and those violations of cognate legal rights, which were at an
early period redressed in the action on the case, have themselves become crys-
tallized into fairly definite form; as, for instance, the defense of oneself and
property in Assault and Battery; necessity, public and private, in trespass to
property, real or personal (see note in 22 Harv. L. R. 296) : and privileged
communications in Slander and Libel.

The justifications for the intentional violation of the newiv recognized
right to complete economic freedom and to immunity from intentionally in-
flicted temporal harm are as yet in the process of ascertainment and defini-
tion. Broadly it may be said that there must be "an equal or superior right"
in those interfering therewith. (Darling, J.. L. R. IQ02. 2 K. B. 88. p. 96).
But this still leaves undetermined when the defendant's right is equal or



l86 MC NARY Z\ CHAMBERLAIN



McNARY r. CHAMBERLAIN.
Supreme Court of Errors of Connecticut, 1867. 34 Conn. 384.

The declaration alleged that the plaintiff had contracted with
the town of Haddam to keep a certain highway in repair for three
years, and that the defendant, intending to injure the plaintiff, de-
posited a quantity of stone and rubbish on the road and obstructed
a drain so that the water ran over and injured the road, by means
of which the plaintiff* was subjected to greater expense in keeping
the road in repair. ^

To this declaration the defendant demurred, and the questions
arising on the demurrer were reserved by the superior court for the
advice of this court.

Park, J. A majority of the court are of the opinion that the
plaintiff has set forth a good cause of action in his declaration.
_We all JToWjdia^^a/priyit^jTlUst^xistJ^
_doer-^andCthe injury complained of^ in order Jo Jay the foundation
for a recoveryy^^nnccticut Mutual Life Ins. Co. v. N. York & N.
Haven R. R. Co., 25 Conn., 265 ; Miller v. East School District, 29
id., 529; Lamh v. Stone, 11 Pick., 527; Anthony v. Slaid, 11 Met.,
290; Rockingham Mutual Life Ins. Co. v. Basher, 39 Maine, 253.
The court are not divided as to the law, but are divided as to the
nature and character of the case itself.

The declaration alleges that the defendant intended to injure
the plaintiff in doing the act complained of, and we all agree that



superior to the plaintiff's. (See Wills, J., Allen \. Flood, L. R. 1898, A. C.
p. 45, and for a full discussion of the whole question, as presented in trade
and labor cases — see Wm. Draper Lewis, 44 Am. L. Reg. N. S. 465, and Jere-
miah Smith, 20 Harv. L. R. 357 et seq.

It may be said, however, that as new social and economic conditions and
changing public thought, ethical, social and political, have led to the recogni-
tion of new rights as worthy of legal protection, the same causes have led to
a similar change in the boundaries set to the exercise of even the most
ancient legal rights and privileges where two or more mutually conflict.

The problem of fixing the proper limits to the exercise of this new
right of economic freedom, when it conflicts with similar rights of others,
would appear to be less one of law than of social and political economics and
the line will probably be drawn at varying points, not only in various jurisdic-
tions but also at different periods of time in the same jurisdiction, in accord-
ance with the settled public opinion as to business convenience and social and
political economics then prevalent therein, which will, it is submitted, in-
evitably dictate public policy as judicially declared. Nor in cases involving
the inevitable economic warfare between competing classes, as those dealing
with the respective rights of Capital and Labor, is it possible to ignore the
influence, not only on legislation but also on judicial opinion, of the political
predominance of the one class or the other if long continued. See the gradual
curtailment of the land owners' extreme privileges as political supremacy
passed from them to the commercial classes and see the same process goinp-
on in England to-day, where the duties of those engaged in the conduct of
business are being constantly increased for the fuller protection of their
workmen and of the mass of the public to whom the franchise has compara-
tively recently been extended.

* The statement of facts is as given in the head note.



MC NARY V. CH.\M1'.ERLAIX 1 87

if the allegation means in fact what it purports to mean, such rela-
tion did exist and the declaration is sufficient. In the case of Con-
necticut Mutual Life I us. Co. v. A'. York & A^. Haven R. R. Co.,
Judge Storrs says: — "Had the life of Dr. Beach been taken with
intent to injure the plaintiffs through their contract liability, a dif-
ferent question would arise, inasmuch as every man owes a duty to
every other not intentionally to injure him."

In actions of assumpsit the allegation that the defendant in-
tended to injure the plaintiff by breaking his promise can be of no
importance whatsoever. It does not enhance the damages, neither
does it tend to establish a natural relation between the breach of the
contract and the injury to the plaintiff. Such relation must exist
without the aid of an allegation of this kind, and of course in such
cases the allegation is made for no purpose but form. But how can
this be said in the case at bar, where a grave question is made
whether the plaintiff can recover for the mischief done him without
the aid of this allegation?

A majority of the court are of the opinion that nothing appears
in the declaration going to show that the allegation was inserted as
mere matter of form, but on the contrary that it appears to have
been deemed substantial and important by the pleader. The de-
murrer admits that it is true, and we think therefore that the decla-
ration shows upon its face a privity between the act done by the
defendant and the injury to the plaintiff.

The defendant contends that although he intended to injure the
plaintiff, still the injury is too remote to sustain an action; and we
are referred to the case of McCune v. Norzvich City Gas Co., 30