The following opinion was filed May 1, 1914:
Baures, J.
This appeal presents two questions: (1) On the facts found by the jury, was the plaintiff entitled to judgment? (2) Has the finding of causal connection between the acts complained of by the plaintiff and his discharge sufficient support in the evidence ?
1. The first question must be resolved in favor of the plaintiff. We agree with defendant’s counsel that if their client was justified in doing what it did in the way of procuring Johnson’s discharge, the fact that it acted from malicious motives would not give a right of action. The presence of malice would permit the recovery of punitory damages, if defendant acted without justification, but would not in itself create a cause of action where none existed without it. Malice makes a bad case worse, but does not make wrong that which is lawful. This question is definitely set at rest by a number of decisions in this court. Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308; Sullivan v. Collins, [60] 107 Wis. 291, 299, 83 N. W. 310; Marshfield L. & L. Co. v. John Week L. Co. 108 Wis. 268, 274, 84 N. W. 434; Madden v. Kinney, 116 Wis. 561, 569, 93 N. W. 535; Huber v. Merkel, 117 Wis. 355, 363, 94 N. W. 354; Loehr v. Dickson, 141 Wis. 332, 335, 124 N. W. 293. But the plaintiff had the right to dispose of his labor wherever he could to the best advantage. This is a legal right entitled to legal protection. Such right could be interfered with by one acting in the exercise of an equal or superior right. As against all others, the plaintiff was entitled to go his way without molestation, and if any one assumed to meddle in his affairs he did so at his peril. There is practically little conflict in the cases on this point. Walker v. Cronin, 107 Mass. 555, 564; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011; Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125; Berry v. Donovan, 188 Mass. 353, 74 N. E. 603; Lopes v. Connolly, 210 Mass. 487, 97 N. E. 80; Hanson v. Innis, 211 Mass. 301, 97 N. E. 756; Brennan v. United Hatters, 73 N. J. Law, 729, 65 Atl. 165; Buddy v. United Asso. 79 N. J. Law, 467, 75 Atl. 742; Chambers v. Probst, 145 Ky. 381, 140 S. W. 572; Lucke v. Clothing C. & T. Assembly, 77 Md. 396, 26 Atl. 505; Hollenbeck v. Ristine, 114 Iowa, 358, 86 N. W. 377; Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129; London G. & A. Co. v. Horn, 206 Ill. 493, 69 N. E. 526; Gibson v. Fidelity & C. Co. 232 Ill. 49, 83 N. E. 539; Ill. S. Co. v. Brenshall, 141 Ill. App. 36; Chipley v. Atkinson, 23 Fla. 206, 1 South. 934.
Undoubtedly cases might arise where an insurer such as the defendant might be justified in saying to the insured that it would cancel its policy unless a certain employee was discharged. Such employee might be so careless of his own safety or the safety of his fellow-servants that the insurer might not care to assume the added hazard that would be liable to follow from such conduct. We have no such case before us, however. The jury might well find in the present case that the purpose which the defendant had in mind was [61] to deprive the plaintiff of his earning power so that he could not successfully carry on his suit to recover damages for the injuries which he had received. This savors too strongly of oppression 'to he considered a legitimate reason for a third party interfering with the relations between employer and employee.
2. On the second question raised, we think the defendant should prevail. Johnson was a day laborer who had the right to quit work at any time without breaching his contract. of employment. Iiis employer might dispense with his services at any time for or without cause. This being so, if the employer reached the conclusion that it was not good business policy to keep in its employ men who were suing it, it was acting within its legal rights. We do not see how the Simmons Company or its officers have any interest, near or remote, in the present controversy. We think the president of the company, and the former general superintendent of it, who, by the way, was not in its employ when this action was tried, stood before the court and jury in no other light than that of disinterested witnesses. We do not think their testimony could be disregarded-by the jury, where it was un-contradieted, unless the evidence itself was inherently improbable or unless something was shown that warranted the jury in concluding that they testified falsely, and, it may be said, wilfully so testified, because if their testimony was in fact untrue there is little room for saying that it was the result of an honest mistake.
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The following opinion was filed May 1, 1914:
Baures, J.
This appeal presents two questions: (1) On the facts found by the jury, was the plaintiff entitled to judgment? (2) Has the finding of causal connection between the acts complained of by the plaintiff and his discharge sufficient support in the evidence ?
1. The first question must be resolved in favor of the plaintiff. We agree with defendant’s counsel that if their client was justified in doing what it did in the way of procuring Johnson’s discharge, the fact that it acted from malicious motives would not give a right of action. The presence of malice would permit the recovery of punitory damages, if defendant acted without justification, but would not in itself create a cause of action where none existed without it. Malice makes a bad case worse, but does not make wrong that which is lawful. This question is definitely set at rest by a number of decisions in this court. Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308; Sullivan v. Collins, [60] 107 Wis. 291, 299, 83 N. W. 310; Marshfield L. & L. Co. v. John Week L. Co. 108 Wis. 268, 274, 84 N. W. 434; Madden v. Kinney, 116 Wis. 561, 569, 93 N. W. 535; Huber v. Merkel, 117 Wis. 355, 363, 94 N. W. 354; Loehr v. Dickson, 141 Wis. 332, 335, 124 N. W. 293. But the plaintiff had the right to dispose of his labor wherever he could to the best advantage. This is a legal right entitled to legal protection. Such right could be interfered with by one acting in the exercise of an equal or superior right. As against all others, the plaintiff was entitled to go his way without molestation, and if any one assumed to meddle in his affairs he did so at his peril. There is practically little conflict in the cases on this point. Walker v. Cronin, 107 Mass. 555, 564; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011; Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125; Berry v. Donovan, 188 Mass. 353, 74 N. E. 603; Lopes v. Connolly, 210 Mass. 487, 97 N. E. 80; Hanson v. Innis, 211 Mass. 301, 97 N. E. 756; Brennan v. United Hatters, 73 N. J. Law, 729, 65 Atl. 165; Buddy v. United Asso. 79 N. J. Law, 467, 75 Atl. 742; Chambers v. Probst, 145 Ky. 381, 140 S. W. 572; Lucke v. Clothing C. & T. Assembly, 77 Md. 396, 26 Atl. 505; Hollenbeck v. Ristine, 114 Iowa, 358, 86 N. W. 377; Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129; London G. & A. Co. v. Horn, 206 Ill. 493, 69 N. E. 526; Gibson v. Fidelity & C. Co. 232 Ill. 49, 83 N. E. 539; Ill. S. Co. v. Brenshall, 141 Ill. App. 36; Chipley v. Atkinson, 23 Fla. 206, 1 South. 934.
Undoubtedly cases might arise where an insurer such as the defendant might be justified in saying to the insured that it would cancel its policy unless a certain employee was discharged. Such employee might be so careless of his own safety or the safety of his fellow-servants that the insurer might not care to assume the added hazard that would be liable to follow from such conduct. We have no such case before us, however. The jury might well find in the present case that the purpose which the defendant had in mind was [61] to deprive the plaintiff of his earning power so that he could not successfully carry on his suit to recover damages for the injuries which he had received. This savors too strongly of oppression 'to he considered a legitimate reason for a third party interfering with the relations between employer and employee.
2. On the second question raised, we think the defendant should prevail. Johnson was a day laborer who had the right to quit work at any time without breaching his contract. of employment. Iiis employer might dispense with his services at any time for or without cause. This being so, if the employer reached the conclusion that it was not good business policy to keep in its employ men who were suing it, it was acting within its legal rights. We do not see how the Simmons Company or its officers have any interest, near or remote, in the present controversy. We think the president of the company, and the former general superintendent of it, who, by the way, was not in its employ when this action was tried, stood before the court and jury in no other light than that of disinterested witnesses. We do not think their testimony could be disregarded-by the jury, where it was un-contradieted, unless the evidence itself was inherently improbable or unless something was shown that warranted the jury in concluding that they testified falsely, and, it may be said, wilfully so testified, because if their testimony was in fact untrue there is little room for saying that it was the result of an honest mistake.
The plaintiff might have been discharged because he was careless of his own safety or of that of his fellow-workers in the manner of doing his work, or because he was not competent or faithful, or because he had sued his employer, or because the employer had no further need of his services, or because of the meddlesome intervention of a third patty, or for other reasons. When the plaintiff rested he had made a prima facie case, because on the evidence offered by him and [62] so long as it stood alone and unexplained the jury might-, legitimately infer that the'requests or suggestions of the defendant were what prompted the discharge. There is no conflict whatever between the facts testified to by the witnesses-on whose testimony plaintiff relies and those testified to by Simmons and Yincent. Plaintiff’s proofs showed that the-defendant desired that plaintiff should be discharged and that shortly thereafter he was discharged. He offered no evidence-to show that he was in fact discharged because of defendant’s-request, but rested on the contention that it was a perfectly rational conclusion for the jury to draw that the cause shown was responsible for the result which followed. The conferences and correspondence between the representatives of the-defendant and the Simmons Manufacturing Company were all with Yincent, the general superintendent of that company. He testified that they had nothing whatever to do with the discharge, and in effect that he paid no attention to the request. He said that such requests, verbal or written, were never called to Simmons’s attention, and that the letter suggesting plaintiff’s discharge was written to him personally and was placed in a file in which he kept correspondence dealing with matters that came under his charge. He further testified that he was directed by Simmons to discharge the plaintiff before the matter came up with the insurance company. He construed the direction as allowing him some discretion. Personally he thought it bad policy to discharge employees who had brought suit against the company, so he allowed Johnson to remain. Later Simmons saw Johnson at work in the shop, and peremptorily ordered his discharge, and plaintiff was dismissed because of this order. Simmons testified to substantially the same state of facts, and very definitely stated that he knew nothing of any request having been made by the defendant for plaintiff’s discharge. His reason for ordering it, as stated by him, was that he had had some disastrous experiences from retaining men in his em[63] ployment with whom lie was Raving a lawsuit and Re Rad decided to pursue a different policy. TRese two witnesses were cross-examined at great lengtli. It is argued tRat sucR examinations sRowed lapses of memory and inaccuracy of statement. TRese so-called lapses were few and trifling and related to really immaterial details. On tRe main question tReir evidence is unshaken. On tRis question Rotli of tRem knew wRetRer tRe discRarge was made at defendant’s request ■or not. TRere is tRe possibility tRat tRey migRt Rave committed perjury, but there is Rardly even a remote possibility tRat they were mistaken. If they Rad any interest in suppressing the truth it is not disclosed or suggested. TRe witnesses in testifying to the cause of plaintiff’s discRarge were ■testifying to a fact pure and simple. Bowe v. Gage, 127 Wis. 245, 249, 106 N. W. 1074; Barker v. Western Union T. Co. 134 Wis. 147, 153, 114 N. W. 439; Sharpe v. Hasey, 141 Wis. 76, 79, 123 N. W. 647; Palmer v. Smith, 147 Wis. 70, 73, 132 N. W. 614.
TRe situation then is this: Certain facts were testified to from which it might be inferred that defendant was responsible for plaintiff’s discRarge; this inference might or migRt not be correct. But the parties who made the discRarge testify that defendant’s acts Rad nothing to do with it and that it was made for a wholly different cause. Such evidence shows that the inference claimed would be incorrect. TRe question is: Have we any conflict in the evidence, nothing being shown to contradict or impeach the witnesses who testified directly what the cause of the discRarge was? ^oes the mere inference that might be drawn from plaintiff’s evidence in itself raise an issue for a jury, or has it been wiped out because not supplemented in some way? Was it not incumbent on the plaintiff to offer some evidence tending to show that the discRarge was not made for reasons given by Vincent and Simmons ?
It frequently happens that although a plaintiff may Rave [64] made a case which, entitles him to go to the jury when he rests, or which would entitle him to a directed verdict if no other testimony were offered, he has no jury question left when the defendant rests.
If A. brings an action on a promissory note, he makes a prima facie case by offering it in evidence. The possession of the note raises a presumption or inference of nonpayment. Rut if unimpeached and disinterested witnesses swear that they saw it paid and heard the plaintiff agree to surrender it, or testify that they were present when it was delivered and that it was given in payment of a debt incurred in a gambling transaction, there is no jury question left, unless the credibility of this evidence is in some way attacked.
Perhaps the fire cases furnish a better illustration. A person owning timber some distance from a railroad finds that it has been burned. He finds that a fire was negligently permitted to escape from the right of way and knows that the prevailing wind would drive the fire in the direction of his property and traces the fire line to it. The inference may be very strong that the fire originating on the right of w»y caused the damage. Rut if unimpeached disinterested witnesses testify to an independent fire which originated between the right of way and the property burned and that they saw such fire spread to and burn the plaintiff’s timber before the right-of-way fire was set, the inference spoken of is destroyed unless some evidence is offered which disputes this direqt testimony as to the actual cause of the burning. Marvin v. C., M. & St. P. R. Co. 19 Wis. 140, 47 N. W. 1123; Megow v. C., M. & St. P. R. Co. 86 Wis. 466, 56 N. W. 1099; Cook v. M., St. P. & S. S. M. R. Co. 98 Wis. 624, 74 N. W. 561.
In Jordan v. Osborne, 147 Wis. 623, 133 N. W. 32, a witness testified’ that he did not hear the motorman blow the whistle as he approached a highway crossing. A jury might find from this testimony that the whistle was not blown and [65] that defendant was negligent in failing to blow it. Tbe motorman testified that be did blow tbe whistle. There was positive testimony on one side and negative on tbe other, and it was held that there was no issue for the jury to pass upon.
In Linden v. M., St. P. & S. S. M. R. Co. 156 Wis. 527, 143 N. W. 167, four witnesses testified that they did not hear the bell of a locomotive ring as the train approached a crossing. This evidence was disputed by a number of disinterested witnesses besides the train crew. The jury found that' the bell was not rung, and the trial court permitted the finding to stand. This court held that the positive and direct testimony of the defendant’s witnesses left no issue for the jury to pass upon, and reversed the judgment.
In Riger v. C. & N. W. R. Co. 156 Wis. 86, 144 N. W. 204, one witness who was in a state of excitement and had only a momentary view of a train testified that it was going sixteen or seventeen miles pei\hour. This evidence standing alone would warrant the jury in finding that the speed exceeded the lawful rate of twelve miles per hour. The train crew, as well as several disinterested witnesses, estimated the speed at from four to seven miles per hour. The jury found that the speed exceeded twelve miles per hour. The trial court set aside this finding and ordered judgment for defendant. That judgment was affirmed in this court because it was thought the inference or conclusion that might be drawn from the evidence of the single witness was completely overcome.
In McCabe v. Milwaukee E. R. & L. Co. 156 Wis. 621, 146 N. W. 806, there was some slight evidence which, if it stood alone and uncontradicted, might warrant the jury in arriving at the verdict returned. The trial court permitted the verdict to stand. This court reversed the judgment and ordered the action dismissed.
In Milwaukee v. Plath, 156 Wis. 586, 146 N. W. 782, the complaining witness, beyond, peradventure, testified to a state [66] of facts which, were it not for the other evidence in the case, entitled the plaintiff to have the issue of self-defense submitted to the jury. This court affirmed the decision of the trial court, holding that on the whole evidence there was no question left for submission to the jury.
In Koepke v. Milwaukee, 112 Wis. 475, 88 N. W. 238, two witnesses testified to defective conditions which they found in a sidewalk. Their examination was made in the darkness and while they were laboring under excitement. It was said that such evidence did not present a jury issue when opposed to the testimony of seven other witnesses who made what they testified to be accurate measurements.
Again in Konkel v. Pella, 122 Wis. 143, 99 N. W. 453, it was held that the estimates of distances made by certain witnesses presented no issue for the jury where other witnesses testified to carefully made measurements. See, further, Neale v. State, 138 Wis. 484, 486, 120 N. W. 345; Wanta v. Milwaukee E. R. & L. Co. 148 Wis. 295, 298, 134 N. W. 133.
In Busse v. State, 129 Wis. 171, 173, 108 N. W. 64, it is said:
“It has often been held that the testimony of even disinterested and unimpeached witnesses on the subjects of measurements, distances, dates, and the like, which is based merely on memory, estimate, or casual observation, must yield to that which is based on actual measurement or reference to definite data.”
Other cases to the same effect are Robinson v. Eau Claire B. & S. Co. 110 Wis. 369, 374, 85 N. W. 893; Bohan v. M., L. S. & W. R. Co. 61 Wis. 391, 21 N. W. 241.
The facts in the cases cited vary. Plowever, they are decided on the basic principle that where unimpeached witnesses testify from accurate and positive knowledge of the facts concerning which they speak, their evidence is not controverted by indefinite statements, by mere negative testi[67] mony, or by doubtful inferences that might be drawn from facts concerning which there is no dispute.
The evidence of Vincent and Simmons was clear. They do not dispute a single material fact testified to by any other witness in the case, and no other witness disputes a material fact testified to by them. A mere inference contrary to the facts directly testified to might have been drawn from the other evidence, and that is all. We do not think that at the close of the testimony there was any question of causal relation between the facts shown by the plaintiff and his discharge for the jury to pass upon. The question before us is well summed up in Ives v. Wis. Cent. R. Co. 128 Wis. 357, 361, 107 N. W. 452, where it is said:
“It has often been declared that when credible and unim-peached witnesses, having exact and certain knowledge so that they cannot be mistaken, testify affirmatively to the existence of a fact, such testimony is not put in issue by mere negative evidence of persuasive facts which, but for the affirmative evidence, might support an inference against the existence of the material fact; where at least the negative testimony may within reason be true and yet the fact may have existed.”
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.