Globe & Rutgers Fire Insurance v. Firemen's Fond Insurance

52 So. 454, 97 Miss. 148

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Mates, O. J.,

delivered the opinion of the court.

The Globe & Rutgers Fire Insurance Company began suit in the circuit court of Adams county against numerous insurance •companies. We deem it unnecessary to name all the companies made defendants to the declaration. The suit is for an alleged tort, and the amount sued for is $50,000. The declaration alleges substantially that plaintiff is engaged in the business of writing fire insurance in the state of Mississippi, having complied with all the laws of the state relative thereto, and being duly licensed; that plaintiff conducts its business through numerous local agents in various towns and cities of the state, including the city of Natchez, all local agencies being under the supervision of its general state agents; that plaintiff is, and always has been, in active competition with defendants, all being engaged in the same business and in the same territory; that plaintiff has built up a large and lucrative business in fire insurance, and in consequence of its good management, stability, ■and just dealing has secured the good will of all the communities where its business is carried on; that plaintiff is independent of all combination among insurance companies; and does not ■seek to increase rates of insurance, or cheapen the services of desirable agents, or otherwise hamper free competition in tire fire insurance business, but conforms in all respects to all the laws applicable to the business; that, in order to prosecute its business successfully, plaintiff has found it necessary to employ agents in various places, who are experienced in the business and thoroughly competent, and who also represent other insurance companies; that because of its independence, justice, liberality, and success it has brought itself into strong disfavor with the defendants, who are its rivals in business; that because of these facts the defendants, with others unknown to plaintiff, wickedly and maliciously contriving and intending «to harass, vex, oppress, annoy, and injure the plaintiff, and as far as practicable put it out of business in the state, by depriving it of the service of successful and experienced agents employed by it, and in an effort to bring it into discredit and disfavor with the public and compel it to quit business, or employ inexperienced persons as its local agents, did about the 3'0th of April, 1908, and in the county of Adams, wickedly, maliciously, and unlawfully, and with the intention and purpose aforesaid con- | spire with each other and with others unknown, and intending Í to deprive plaintiff of the services of one Trabue Lawrence, its local agent, maliciously and1 unlawfully, persuade, cajole, and intimidate Trabue Lawrence, the defendant’s local agent, threat! ening to drive him out of his business as insurance agent unless, he should yield; that thereupon the said Lawrence was persuaded, forced, and intimidated by the defendants into abandon- ,, ing and leaving the service of plaintiff, so that from and after the 2d day of May, 1908, plaintiff lost the benefit of the valuable service of the aforesaid Lawrence on account of the wicked, malicious, and unlawful conspiracy of the defendants; that because of this conspiracy plaintiff was compelled either to quit business in Natchez or intrust its affairs to less experienced' and less competent local agents, to its damage of at least $3,000 per annum in net premiums, which it could and would have earned, had it been permitted to retain the services of Lawrence. Wherefore plaintiff claims that by reason of the aforesaid wicked, malicious, unlawful, and oppressive conspiracy it has sustained injury and damage in the sum of $50,000, for which it sues. To this declaration a demurrer was interposed, setting up numerous grounds; the chief one being that the declaration does not aver any facts which constitute a cause of action. The demurrer was sustained, and the suit dismissed from which judgment an appeal is prosecuted.

It may here be stated that there is an affidavit filed by Lawrence in which he denies the allegations of the declaration. But this case must be considered without reference to this affidavit, since it forms no part of the question presented by the record. If the declaration states a good cause of action, the demurrer must be overruled. Plaintiff cannot be precluded in its suit by any denial made by Lawrence. It may be able to prove the facts alleged in the declaration by other witnesses. The demurrer confesses every material allegation of the declaration, and with such allegations confessed it is for us to determine whether a cause of action appears. The affidavit cannot add to or take away from the legal effect of the ease.

The- declaration states facts which show that defendants are not in the mere exercise of just rights, but that they are wickedly, unlawfully, and maliciously interfering with plaintiff’s employe for the sole purpose of harming it. Under the facts alleged in the declaration, it may have been perfectly permissible for the defendants to have employed the agent of plaintiff and to pay him better for his services. They might employ him, or any number of plaintiff’s agents similarly in the employ of plaintiff, without violating any principle of lawful right, if the object of the employment was in the honest furtherance of their own business enterprises. But the facts stated in the declaration show a determination to destroy and drive plaintiff out of business, and the declaration alleges a conspiracy for this purpose. Surely no individual or corporation may maliciously and wantonly set about to ruin a competitor. As an incident to the advance of one’s own business and for the purpose, he has tire right to use all proper methods, and his competitors must be able to cope with his ingenuities. As is said in the case of Martel v. White, 185 Mass. 260, 69 N. E. 1087, 64 L. R. A. 263, 102 Am. St. Rep. 346: “Competition in business is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly.” The fact that a rival in business is vanquished i's not of itself sufficient to give rise to a cause of action against his competitor; but the facts must go further, and show that the contest was carried on by methods not allowable in such warfare.

For an association of persons to conspire together for the sole purpose of destroying one’s business certainly transcends legitimate and lawful competitive methods. Every person must be free to ply his own calling. If he may be interfered with by having his employes driven from his service by fraud, misrepresentation, intimidation, obstruction, or molestation, and in this way have his business destroyed, the effect upon his business operations and progress is as deadly as if the law permitted an incendiary to burn or a mob to destroy. If his business is to be destroyed, it can make little difference in result whether it be by the unlawful use of fire or unlawful intimidation or molestation. Legitimate competition he must meet, or surrender; but legitimate competition only means that all may make tire best lawful use of their faculties and their means. If in so doing their competitor’s business is destroyed as a mere incident of his inability to successfully contend against superior skill or means, that is but the hardship of legitimate warfare. The world is always in search of improved methods and reduction of cost. Martel v. White, 185 Mass. 255, 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. Rep. 341.

In the case of Employing Printers’ Club v. Doctor Blosser Company, 122 Ga. 509, 50 S. E. 353, 106 Am. St. Rep. 137, there is to be found a lengthy and exhaustive discussion of the question involved in this case. In that case it is held, that, wherever there is a malicious interference with one’s employes, an action can be maintained against the party so interfering. It is stated on page 516 of 122 Ga., on page 355 of 50 S. E., and on page 142 of 106 Am. St. Rep., that: “At common law the remedies for breach of contract were confined to the contracting parties, and limited to direct damages and consequential damages proximately resulting from the act of him who is sued. This general rule admitted of one exception, and that Avas the right of action against a stranger for wrongfully enticing aAvay a servant in violation of his contract of service with his master. The exception is said to have been based on the ancient statutes of laborers. The early English cases limited the action to the enticement of menial servants; but the later cases, beginning with Lumly v. Gye, 2 El. & B. 216, have extended the doctrine beyond menial servants, and by the modern interpretation of this doctrine by the English courts the rule is extended to a malicious interference with any contract. * * * In the case of Quinn v. Leathern [1901] L. R. App. Gas. 495, after revieAving many cases, it was stated that: ‘A combination of two or more, without justification or excuse, to injure a man in his trade, by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employment, is, if it results in damage to him, actionable.’ The supreme court of the United States approvingly cited the English cases of Lumly v. Gye, 2 El. & B. 216, and Bowen v. Hall, 6 Q. B. Div. 333, and reached the conclusion that, if one maliciously interferes with a contract to the injury of the other, the party injured may maintain an action against the wrongdoer. Angle v. Chicago Ry. Co., 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55.”

In the case of Delz v. Winfree, Norman & Pearson, 80 Tex. 400, 16 S. W. 111, 26 Am. St. Rep. 755, it is stated that: “Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. lie 'has no right to be protected against competition; but he has a right to be free from a malicious and wanton interference, disturbance, or annoyance. If disturbance or loss comes as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with. But 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.” See, also, Walker v. Cronin, 107 Mass. 562.

In the case under consideration, as well as the case above cited, it appears from the declaration that the interference with the business of plaintiff was not incidental to the accomplishment of some legitimate purpose of the defendants, but that the interference was wanton and malicious, and for the purpose of driving the plaintiff out of business. The gist of this action is the malicious and unlawful interference with plaintiff’s business, to 'his damage. The action would lie as well against one as against all the defendants; but the charge of the conspiracy is the basis of the right to join all in the same suit as parties defendant. It becomes, by reason of the conspiracy, the joint wrong of all the conspirators. Cooley on Torts, § 125; Delz v. Winfree, 80 Tex. 400, 16 S. W. 111, 26 Am. St. Rep. 755. See, also, 11 Am. St. Rep. note on page 474.

As we have already seen from the authorities, the right to recover for malicious interference extends to all kinds of contractsthat is to say, all contracts1 of service whatever may be their nature. But it is argued on the part of appellees that there was no^ contract for any definite period of time between plaintiff and Lawrence, and therefore there could be no interference which would justify the action. We do not think, under the authorities, that it makes any difference whether there was a contract between plaintiff and Lawrence for a definite period of time or not. There was a service and a quasi contract, and plaintiff had a right to’ have this service to continue free of malicious interference. The suit is because of a malicious and wanton interference with plaintiff’s rights, and is not for the breach of any contract.

Counsel for appellees cite the cases of Hunt v. Simonds, 19 Mo. 583, and Orr v. Home Mutual Ins. Co., 12 La. Ann. 225, 68 Am. Dec. 770, wherein it was held that an action would not lie against the officers of an insurance company, combining and conspiring to willfully and maliciously injure the owner, by refusing, without cause, to take insurance upon his boat, whereby he is deprived of his occupation and compelled to sell the boat. We say of these cases that they are decided, one in 1854 and the other in 1857, and are out of harmony with modern decisions upon this subject. In truth, their holding is expressly repudiated in 2 Eddy on Combinations, p. 513; 16 Encyc. Law (2d ed.) 1111.

There may be some early authorities which conflict with the view of the law announced in this case; but the more modern and more just decisions, according to our view, sustain our conclusions. We were early taught that one of the maxims of the law was that “there is no> wrong without its remedy.” Wanton and malicious interference with one’s business, with the purpose to destroy it, is a wrong that will be admitted by the most indifferent. We hardly think it necessary to pursue the discussion of this case further.

Reversed and remanded.