Willner v. Silverman

71 A. 962, 109 Md. 341, 1909 Md. LEXIS 6

• Court: Court of Appeals of Maryland
• Decided: January 12, 1909
• Status: Published

Opinion

Henry, J.,

delivered the opinion of Ihe Court.

This is an action on the case brought by the appellant, the plaintiff below, against the appellees, the defendants below, grounded on a declaration containing four counts, the first three of which allege in substance that the defendants, after discharging the plaintiff from their employment, maliciously conspired or contrived to injure him by blacklisting him and writing a letter, containing false statements, to the members of an association, known as The Clothiers’ Board of Trade of Baltimore City and requesting such Association members to refuse employment to the plaintiff, while the fourth count sets out at length the details of the grievance complained of, omitting the charge of conspiracy.

The defendants filed the general issue plea, and the verdict, under the instruction of the Court, being for the defendants, the plaintiff entered an appeal to this Court.

The appellant was a cutter of cloth in the establishment of Harris Silverman, one of the appellees, in Baltimore City, and on December 19, 1905, was discharged, his employer sending for him on the afternoon of that day to come to his office, and saying to him: “Willner, you are a disorganizer and an agitator, I cannot use you any longer; here is your envelope,” which contained wages up to date.

When Willner asked why he said that, Mr. Silverman replied : “Because you told a man, who has worked for me before and who left me and started in again, 1 hired him yesterday—you told him to ask for more money.” Willner said: “Mr. Silverman, I did not tell him to ask for more money, I merely said to him, ‘Cosman, is that true what a fellow tell me that you started in again for $2.75.’ He said : ‘yes;’ I said: ‘Charlie, I am surprised at you.’ ”

It seems that the man, Cosman, who had been hired the preceding day, in consequence of this conversation with the appellant, demanded an increase of wages to $3.00 per day, which was granted.

On the day of the discharge, Moses Silverman, son of Harris Silverman, and one of his employees, wrote the fol lowing letter to the Clothiers’ Board of Trade, an organization comprising in its membership about twenty clothing dealers of Baltimore, including Harris Silverman, one of the appelleees, it being one of the rules of said association that an employee discharged by one member should be re- ' fused employment by all other members.

“Baltimore, December 19, 1906. Mr. Sylvan Hayes Lauchheimer,

Local.

Dear Sir:—

We desire to call your attention to Mr. Jos. Willner, a cutter who was formerly in my employ. We would request you to see that he is refused employment in all Association houses in which he may apply for a position. He was the shop chairman of my cutting room, and in addition to this, he has been a source of ' trouble. In other words, he has been trying to disorganize my rule. We took on a cutter yesterday at a certain price, and when he went to work this morning, he told him to insist on more money, otherwise we suppose they would have made it unpleasant for him. He came down and stated his demand, to which we acceded, but thought we would be better off by discharging Mr. Willner, who was the cause of the disturbance. We think it no more than right that the Association should back us up in this matter, and refuse this man employment, as we would like to make an example of him.

Tours truly,

M. S. (Signed) Harris Silverman & Sons."

Evidence was offered tending to prove that this letter was duly received by the Clothiers’ Board of Trade, and that cop: ies of the same were made by the clerk, according to routine,' and promptly delivered to the various members of the Association.

Willner, on the morning after his discharge started out to secure other employment, and continued his efforts, without success, until Jarnuary 4th, following, when he was employed by M. Lauchheimer & Sons, one of the members of the Clothiers’ Board of Trade. In his search for work, the plaintiff made application to eight different clothing’ firms in Baltimore, six of them being members of the aforesaid Association.

At the conclusion of the plaintiff’s testimony, the defendants offered two prayers, the first asking the Court to instruct the jury that there was no evidence legally sufficient to entitle the plaintiff to recover*, and their verdict must be for the defendants, and the second asking for an instruction that there was no evidence legally sufficient to entitle the plaintiff to recover against Harris Silverman and Louis Silverman.

Both of these prayers were granted, to which action the plaintiff excepted, and these exceptions constituting the 11th and 12th bills will be first discussed.

Preliminary thereto, it may be well to announce as a principle of law that any malicious interference with the business or occupation of another, if followed by damage, is an actionable wrong. Such interference may be by a single individual, or by a number of individuals conspiring together, but it is the damage which constitutes the gist of the action, and not the conspiracy, the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. We find no Maryland case that goes to the extent of sustaining the position contended for by the appellant to the effect that the “blacklisting” of discharged employees by a combination of employers is in itself actionable, without proof of damage. In the case of Walker v. Cronin, 107 Mass. 562, it is stated that to maintain an action of this character it is necessary for the plaintiff to prove—-“(1) 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 defendants (which constitutes malice) ; and (4) actual damage and loss resulting.”

An employer, where no right of contract is involved, may lawfully discharge an employee at what time he pleases and for what cause he chooses, while, on the other hand, an employee may sell his labor to whomsoever he desired at such wages as he is willing to accept and may quit such employment at his pleasure, yet neither has the right to interfere, without cause, with the business or occupation of the other.

While the law does not furnish a shield against the effects of fair and honest competition, yet injury to the business of another, if accomplished by threats or coercion, constitutes a ground of action for damages on the part of the person so injured.

In furtherance of their common welfare and in settlement of their ofttimes conflicting interests, both employers and employees stand upon a plane of perfect equality before the law, enjoying the same freedom and amenable to the same restrictions. Both may combine in unions or associations, but such associations, like individuals, must employ lawful methods for the attainment of lawful purposes.

This was not always so, as appears from the account of the progress of trade unions,, as given in the 2nd volume of McCarthy’s “History of Our Own Times,” referred to by the appellant’s brief. Looking at the subject in retrospect it is difficult to understand how the conditions and sentiments therein described could obtain lodgment in public opinion or receive sanction in the Courts, for it is now clearly settled that the same law which permits the organization of employers and interposes to protect manufacturers or merchants from the violence of “strikes,” or the “intimidation of boycotts,” is also vigilant to see that the right and opportunity to work, which is the most valuable asset 'of the laboring man,, as well as the privilege of organization, shall not be unjustifiably interfered with by employers, acting either as individuals or in combinations. Barnes v. Typographical Union, 232 Ill. 424; Walker v. Cronin, 107 Mass. 562; Kimball v. Harman, 34 Md. 407; Robertson v. Parks, 76 Md. 135; Klingell's Pharmacy v. Sharpe & Dohme, 104 Md. 231; 8 Cyc., 650.

About the first element for recovery in the plaintiff’s case, we have no difficulty. While the letter of December 19th aforesaid, is not couched in extravagant language, yet it does not state the facts of the case with entire accuracy, and the concluding sentence of the letter is some evidence of malice on the part of the writer, and the circulation of such letter through the instrumentality of the Clothiers’ Board of Trade was an actionable wrong, provided damage resulted therefrom.

On this latter point, we think that the receipt of the letter of December 19th, by the members of the Clothiers’ Board of Trade, a body of men engaged in a like business and associated together partly, if not primarily, for the purpose of disciplining employees, are facts affording some evidence from which the jury might infer that the refusal of employment to the plaintiff was because of the rule of the association and the request for its enforcement by the defendants.

Furthermore it is in evidence that one Brown, not a member of the Clothiers’ Board of Trade, refused the plaintiff employment after hearing that the applicant had been blacklisted. Although this information was communicated to Brown by the plaintiff himself, under circumstances which at least leaves it doubtful as to whether he was actuated by a high moral sense or by a collusive purpose, with Brown, who ■was his personal friend, to aid in the prosecution of a contemplated law suit against these defendants, yet it was evidence of injury, the weight of which it was for the jury to decide.

The question next arises, who of the appellees is responsible for the wrong alleged in the narr. The uncontradicted testimony shows that the firm of Harris Silverman & Sons was not in existence at the time the above-quoted letter was written, nor was there any evidence whatever to show that Louis Silverman had any connection with the case. Therefore as to the firm of Harris Silverman & Sons, which did not come into existence until January 1st, 1906, and as to Louis Silverman, individually, it is clear that there was no right of action.

. Concerning Harris Silverman, there is no evidence legally sufficient to show that he either authorized or subsequently ratified the action of his son in writing the letter. The only circumstance from, which it could be inferred that he had knowledge of the letter and took no steps to repudiate it, is that, ■ being a member of the Clothiers’ Board of Trade, a copy was delivered to him along with the other members, but this is opposed by the equally logical inference that the clerk might not have deemed it necessary to deliver to Silverman what was practically a copy of his own letter. Harris Silverman was a witness for the plaintiff, and in reply to a question as to whether he wrote the letter said: “Positively not; I have no knowledge of - it; don’t know a thing about it, sir.” This is a broad answer, but even if held to be merely responsive to the question concerning the writing of the letter, it was easy for the plaintiff to have followed the question .up by a direct question as to when, if ever, the letter came to his knowledge. This the plaintiff failed to do, and we think has left the testimony in too vague and indefinite a shape to provide a basis for the jury to infer, a subsequent notice and ratification of the letter by Harris Silverman. Hoi* is there any ground for holding the father responsible on the ground of the agency of the son, Moses Silverman. The latter testified that he was an employee, who occasionally wrote letters of minor importance, but not on subjects of serious business. The letter in question was clearly not about a routine matter, but was outside of the usual course of business, about which, according to the only testimony in the case, the son would have no authority to take any steps whatever. Holding these views, we think the second prayer of the defendants was properly granted by the Court.

Moses Silverman admits writing the letter in question, and, (under the fourth count of the narr., but not under the other 11 counts, the plaintiff has a right of action against him. The first prayer of the defendants was, therefore, improperly granted, and the judgment on that account should be reversed and the cause remanded for a new trial.

There remain some minor matters to he considered. The seventh exception was waived by the appellant, and the third, fourth, eighth, ninth and tenth exceptions, relating to the refusal of the Court to admit in evidence a copy of the letter of December 19th (which letter was subsequently admitted at a later stage of the proceedings), it was conceded, were not vital and it is not necessary to discuss them.

This leaves open for consideration the first, second, fifth and sixth exceptions. The first exception relates to the i*efnsal of the Court to permit the plaintiff to ask Mr. Lauehheimer, the actuary of the Clothiers’ Board of Trade, the following question:

“I will ask you now to tell candidly to the jury whether you have any doubt that letter (referring to the Lauchheimer letter) was issued out of your office over your signature, over your typewritten signature?”

The witness had already stated that he had no knowledge of the said letter having been issued from his office, and had testified as to what was the routine of the office in such matters, and we do not think that the circumstances called for an expression of opinion from him. The facts in connection with the letter and of the witness’ knowledge of it were already in evidence and it was for the jury to say from these facts whether or not the letter was issued, and, if so, by what authority.

The second exception was to the propriety of a question as to whether the Directors of the Clothiers’ Board of Trade directed the transmission of copies of the Silverman letter-to the members of the Association. The ruling of the Court in admitting the question was harmless, if erroneous, and therefore not necessary to he considered.

While on the stand, in his own behalf, the plaintiff was asked this question: “What reason, if any, was given by the various people to whom yon applied for their refusal to employ you?” An objection to this question was sustained hv the Court, and this action constitutes the plaintiff’s fifth hill of exception. In this ruling, we think that the lower Court was correct. An answer to the question would have fallen within the limits of hearsay evidence.. Neither the parties applied .to, nor the Association of which a majority of them were members, were parties to the suit, and their replies would not have been admissible against the defendants. The parties themselves should have been called to the stand to testify on this point.

The sixth exception was to the refusal of.the Court to allow plaintiff to testify to a telephone conversation between Silverman and Lauchheimer, the plaintiff being in the latter’s office while the conversation was in progress and claiming that it was repeated to him at the close. The authority cited by the appellant does not sustain the position taken by him. In the case cited, 82 Ky. 483, the operator of the telephone had been expressly directed by one of the parties to call up a person at a distant point and to converse with such person, asking the questions and repeating the replies as they were given to him, and the Court held that the operator was the agent of both parties, and that in a subsequent suit between the parties the one who had requested the operator to talk for him could testify to what was repeated to him at the time by such operator. There is no such circumstance in the present case, and it would have been clearly hearsay to have permitted the plaintiff to tell the conversation. 16 Cyc. 1196 and Note.

Although, in our opinion, the evidence, as set forth in the record, is legally insufficient to entitle the plaintiff to recover as against Harris Silverman and Louis Silverman individually, or against the firm of Harris Silverman & Sons, yet, as the judgment is an entirety which cannot be affirmed as to some and reversed as to other defendants, we must, for error in granting the defendant’s first prayer, simply reverse the judgment and remand the case for a new trial. East Baltimore Lumber Co. v. The K’Nesset Israel Aushe S’Phard Congregation et al., 100 Md. 689, and cases therein cited.

Judgment reversed with costs to the appellant, and cause remanded for new trial.