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App. Div. 378]

Third Department, March, 1922.

the plaintiff, in a measure justifies this conclusion. Nevertheless, the trial justice before whom the case was tried dismissed the complaint at the close of the plaintiff's case, and this appeal was taken. It is a principle of general application that a malicious motive does not render unlawful acts which in themselves are lawful. It was said by Judge Cooley in his work on Torts (Vol. 2 [3d ed.], p. 1505): "Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. 'An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent.' Where one exercises a legal right only, the motive which actuates him is immaterial.'" This statement correctly expresses the law of this State. (Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444; Pickard v. Collins, 23 Barb. 444; Morris v. Tuthill, 72 N. Y. 575; Kiff v. Youmans, 86 id. 329.) In the Plank Road Company case a farmer built a driveway in close proximity to and paralleling a plank road in order to afford opportunity to travelers to evade a toll-gate erected by the plank road company, and thus to escape the payment of tolls. It was held that this act, although performed for the sole purpose of injuring the plank road company, did not constitute a legal wrong. In the Pickard case it was held that the erection of a high fence, for the sole purpose of cutting off the light of a neighbor, was not actionable. In the Morris case it was held that the assignee of certain mortgages, who bought them and started foreclosures thereon for the sole purpose of injuring the mortgagor, committed no wrong and could not be denied the right to foreclose. It was said by Judge SELDEN in the Plank Road case: "But, independent of authority, if a malignant motive is sufficient to make a man's dealings with his own property, when accompanied by damage to another, actionable, where is the principle to stop? It will be found to apply to a thousand other cases with the same force as to this. For instance, if a man sets up a trade, not with a view to his own profit, but solely to injure one already established in the same trade, how can the case be distinguished in principle from this? and yet no one would contend that an action would lie in these or similar cases." In Allen v. Flood (L. R. [1898] App. Cas. 1) decided by the House of Lords in the year 1897, the head note reads: "An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action." In that case Lord WATSON said: " In my opinion it is alike consistent with reason and common sense that when the act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive." Sir Frederick Pollock, in his book

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on Torts, newly edited in the year 1920 (11th ed. p. 23), says: "Harm done without excuse cannot be made more wrongful than it is by the addition of bad feeling or personal ill-will, nor made lawful by its absence." It has been said that an exception is found in that class of actions where damages are recoverable for maliciously inducing the employees of another to break their contracts of employment. (Lumley v. Gye, 2 E. & B. 216; Bowen v. Hall, L. R. 6 Q. B. Div. 333.) In Quinn v. Leathem (L. R. [1901] App. Cas. 495), decided by the House of Lords in 1901, Lord MACNAGHTEN in interpreting Lumley v. Gye (supra) and Bowen v. Hall (supra) in the light of the decision made in Allen v. Flood (supra), states that these cases were decided not on the basis of malice but upon the ground" that a violation of legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognized by law if there be no justification for the interference." In a recent decision by our Court of Appeals (Lamb v. Cheney & Son, 227 N. Y. 418) the rule of Lumley v. Gye, as interpreted by Lord MACNAGHTEN in Quinn v. Leathem, was adopted as the law of our State. It was there held that if one party maliciously interferes with a contract between other parties, and induces one of them to break the contract, the party injured can maintain an action against the person so interfering. In speaking of the element of malice necessary to the maintenance of such an action, Judge MCLAUGHLIN says: "It does not mean actual malice or ill-will, but consists in the intentional doing of a wrongful act without legal justification." He further states: "The gist of the action is not the intent to injure, but to interfere without justification with plaintiff's contractual rights with knowledge thereof." It has recently been said by a distinguished jurist: "Today, most judges are inclined to say that what was once thought to be the exception is the rule, and what was the rule is the exception. A. may never do anything in his business for the purpose of injuring another without reasonable and just excuse." (The Nature of the Judicial Process, Cardozo, p. 25.) The case of Lamb v. Cheney & Son is cited as an authority for this statement, but it would scarcely seem that the broad generalization thus made is justified by the decision therein. In that case an outstanding legal right inuring to the plaintiff through his contract with another was intentionally destroyed by the defendant without justification on his part. The same generalization has elsewhere frequently been made. (Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. Div. 598; Aikens v. Wisconsin, 195 U. S. 194; Plant v. Woods, 176 Mass. 492.) It has been noted, however, that without an explanation of what constitutes just cause or excuse

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the generalization amounts to little more than the truism that no man is justified in performing an action for which he has no justification. Thus Lord HALSBURY (Allen v. Flood, L. R. [1898] App. Cas. 1, 75) in commenting upon a similar generalization made by BOWEN, L. J., in the Mogul case, stated: "The Lord Justice was too keen a reasoner not to observe that the words 'without just cause or excuse' which he had used required exposition to render his reasoning complete." In any event it remains the law that a malicious motive does not convert a right into a wrong. The plaintiff must succeed, therefore, if at all, upon the theory that the defendants have intentionally caused him injury without justification. The case differs from Lamb v. Cheney & Son, in that the defendant, entering into the competition complained of, interfered with no legal right possessed by the plaintiff or the newspaper company which employed him. Even if we accept the generalization which has been made as stating the law of this State, we cannot see that this defendant was without justification in entering upon a rivalry with the plaintiff or his company. Thus it was said by FRY, L. J., in the Mogul case: "We have then to inquire whether mere competition, directed by one man against another, is ever unlawful. It was argued that the plaintiffs have a legal right to carry on their trade, and that to deprive them of that right by any means is a wrong. But the right of the plaintiffs to trade is not an absolute but a qualified right a right conditioned by the like right in the defendants and all Her Majesty's subjects, and a right therefore to trade subject to competition. Now, I know no limits to the right of competition in the defendants I mean, no limits in law. But no case has been or, I believe, can be cited where the only means used by the defendant to injure the plaintiff has been competition pure and simple. I think that if we were now to hold interference by mere competition unlawful, we should be laying down law both novel and at variance with that which modern legislation has shown to be the present policy of the State." We think that the plaintiff must fail in the action for three reasons: First. The acts of competition complained of were not rendered unlawful by the malicious intention of the defendants to injure the plaintiff by performing them. Second. The defendants by their acts interfered with no legal rights possessed by the plaintiff or his employer. Third. The acts of competition complained of were not oppressive or unfair and were fully justified as an exercise of the lawful right of competition. We also consider that the acts complained of did not become unlawful or actionable because the persons engaged therein conspired" to commit them. (Brackett v. Griswold, 112 N. Y.

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454; Cohen v. Fisher & Co., 135 App. Div. 238.) We, therefore, hold that the dismissal of the plaintiff's complaint was proper. The judgment should be affirmed, with costs.

All concur, except HINMAN, J., dissenting, with a memorandum. HINMAN, J. (dissenting):

As I understand the holding of Mr. Justice KELLOGG it is laying down the proposition that the right of competition is self-justification always; and that however destructive to another who is competing in the same business, he who engages in such business with no thought of business profits therefrom but for the sole purpose of destroying that of the other, need not defend himself by charging that he is doing so by way of self-protection or because in some manner he has been provoked so to do by the acts of the other. It is from this conclusion of law that I wish to dissent.

I am inclined to agree with the more recent thought expressed by Mr. Justice KELLOGG in his opinion holding to the proposition that one may not engage in and operate a business for the sole purpose of injuring another without reasonable and just excuse. It must, however, be a case of clear and unmixed malice. If that can be proved, I think there may be a recovery. This is a land of opportunity as well as of free competition in business and it becomes pro tanto a land of oppression where we lay down the fixed principle of law that a man who is wealthy enough and malicious enough can shut the door of opportunity to the object of his hatred by rivaling him in business with no other aim in view than his destruction, and be held to be in the exercise of his legal rights in so doing. Such an act of unmixed malice ought to be and I believe will be, held to be contrary to the prevailing public morality.

In this case the defendants may well have had just and reasonable excuse. Some newspapers take cowardly advantage of their power and when they do there is no more cogent method of defense than to engage in the newspaper business and " fight the devil with fire." Perhaps the jury would have so justified the act of the defendants, but that was an issue of fact to be determined by the jury.

Moreover it seems to me that the plaintiff's cause of action was not barred by the Statute of Limitations. (Code Civ. Proc. § 382.) The defendants began an attempt to injure the plaintiff in 1904, more than ten years before bringing the action, but the injury to the plaintiff did not accrue until the Herald sold its assets and went out of business in 1910, two years within the statute, the action having been brought in 1914.

The defendants acted as an agency of attempted destruction, slowly and insidiously accomplishing the result. It would seem to

App. Div. 378]

Third Department, March, 1922.

me to be a question of fact as to whether it could be said that the purpose had been accomplished in whole or in part at any time prior to the time when the Herald went out of business. If the evil object was not accomplished there was no tort. There was always the chance that the defendants would not succeed until the damage was actually done. Under these circumstances the cause of action may not be deemed to have arisen until possibly 1910, depending upon the finding of the jury. It was not at any time a matter of direct or forcible trespass but something more to be likened to those indirect trespasses for which trespass on the case would lie at the common law. In trespass on the case no cause of action arose until the damage had been done. It was very different from the doing of an act and then having nothing further to do with it and no chance to stop the result of the act. The case here seems to parallel the situation covered in an action for alienation of a wife's affections. It was held in Bockman v. Ritter (21 Ind. App. 250; 52 N. E. Rep. 100) that a complaint for alienating a wife's affections stating that four years before defendant began to poison the wife's mind does not show it is barred by the two years' limitations when it appears that the wife did not leave her husband and declare she would no longer live with him until two weeks before suit commenced.

The case of Skipwith v. Albemarle Soapstone Co. (185 Fed. Rep. 15) also sustains this view of the plaintiff's case, the injury in that case not having been an obvious and necessary result of the defendant's operations until a time within the Statute of Limitations.

"When a permanent structure causes an overflow and resulting damage to another, limitations run against his claim from the time the obstruction is completed, if the nature and extent of the damage can be reasonably ascertained; but, if not, there may be as many successive recoveries as there are successive injuries developed." (Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330; 155 S. W. Rep. 127.) This principle of successive recoveries is sustained in Meruk v. City of New York (223 N. Y. 271, 276) and in a long line of water damages in this State where the cause of injury was completed at a time against which the statute had run but the injuries continued within the period of the statute (Colrick v. Swinburne, 105 N. Y. 503; Reed v. State, 108 id. 407); and in the elevated railroad cases which hold that the statute is not a bar to damages suffered within six years. (Galway v. Met. El. R. Co., 128 N. Y. 132.)

For these reasons I believe the judgment should be reversed and a new trial granted.

Judgment affirmed, with costs.

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