Abbildungen der Seite
PDF
EPUB

spiracy to defraud, between the same persons, and relating to the same transaction.371

Use of Charge of Conspiracy.

It is often loosely said that the allegation of conspiracy in an action on tort is immaterial and surplusage, and that the fact of conspiracy became actionable only when the act would be a ground of suit if done by a single person.372 This is far from being literally true. While in an action against two or more persons, in the nature of a conspiracy, if the tort be actionable whether committed by one or more, recovery may be had against but one, but, if the tort be actionable only when committed under an unlawful conspiracy of two or more, recovery may not be had unless the unlawful conspiracy be established. Thus, judgment confessed by a father in favor of a son cannot be held fraudulent, as to creditors of the father, without collusion and combination between the two to hinder, delay, and defraud such creditors.373 The charge of conspiracy is further of use as enabling the plaintiff to recover against all conspirators as joint tort feasors, or, if he fail to prove a concerted design, he may still recover damages against such as are shown to be guilty of the tort without such an agreement.3 Mere silent approval of an unlawful act does not, however, render

374

tiff, but failing to sufficiently plead slander as against either, is demurrable. Severinghaus v. Beckman, 9 Ind. App. 388, 36 N. E. 930.

371 Wolfe v. Pugh, 101 Ind. 293.

372 Boston v. Simmons, 150 Mass. 461, 23 N. E. 210; Kimball v. Harman, 34 Md. 407; Cooley, Torts, 125.

373 Collins v. Cronin, 117 Pa. St. 35, 11 Atl. 869; Laverty v. Vanarsdale, 65 Pa. St. 507; Rundell v. Kalbfus, 125 Pa. St. 123, 17 Atl. 238; Id., 134 Pa. St. 102, 19 Atl. 492; Burton v. Fulton, 49 Pa. St. 151; Newall v. Jenkins, 26 Pa. St. 159; Wellington v. Small, 3 Cush. (Mass.) 145; Leavitt v. Gushee, 5 Cal. 152; Johnson v. Davis, 7 Tex. 173; Gregory v. Duke of Brunswick, 6 Man. & G. 205.

374 Van Horn v. Van Horn, supra; Skinner v. Gunton, 1 Saund. 228 et seq.; Parker v. Huntington, 2 Gray (Mass.) 124; Boston v. Simmons, 150 Mass. 461, 23 N. E. 210; Eason v. Westbrook, 2 Murph. (N. C.) 329; Laverty v. Vanarsdale, 65 Pa. St. 507-509; Garing v. Fraser, 76 Me. 37-41; Breedlove v. Bundy, 96 Ind. 319; Buffalo Lubricating Oil Co. v. Standard Oil Co., 42 Hun, 153; Brinkley v. Platt, 40 Md. 529; Keit v. Wyman, 67 Hun, 337, 22 N. Y. Supp. 1331; Griffing v. Differ, 66 Hun, 633, 21 N. Y. Supp. 407.

376

one liable as a conspirator; 375 nor does presence as a spectator; nor membership in an association to prosecute, unless the member sought to be charged intentionally aided in the prosecution." But actual participation need not be proved.378 While conspiracy thus may increase the person's liability for a given wrong, it may also serve to aggravate the wrong done, and thus tend to increase the measure of the recovery.37

The charge of conspiracy correspondingly increases the range of evidence admissible against the defendants. Thus, when a prima facie case is established, showing the existence of an actionable conspiracy, declarations, acts, or omissions of any of the conspirators touching the original or concerted plan (but not before or afterwards), and with reference to the common object, are evidence against each and every one of them. This is true, although such declarations, acts, or omissions be not made or performed in the presence of more than one of such conspirators. 880

The charge of conspiracy may be further of use as entitling its object to an injunction even before there has been any overt act under the unlawful agreement. The issuance of the injunction will be governed by the common equitable principles. A combination to boycott a newspaper may be enjoined.381

375 Brannock v. Bouldin, 4 Ired. (N. C.) 61; Johnson v. Davis, 7 Tex. 173. 376 Blue v. Christ, 4 Ill. App. 351.

377 Johnson v. Miller, 63 Iowa, 529, 17 N. W. 34; Id., 82 Iowa, 693, 47 N. W. 903, and 48 N. W. 1081.

378 Page v. Parker, 43 N. H. 363-367; Tappan v. Powers, 2 Hall (N. Y.) 277; Livermore v. Herschell, 3 Pick. 33; Bredin v. Bredin, 3 Pa. St. 81.

379 Cooley, Torts, 125; Robinson v. Parks, 76 Md. 118, 24 Atl. 411; Lee v. Kendall, 56 Hun, 610, 11 N. Y. Supp. 131; Kimball v. Harman, 34 Md. 407. 380 Brinkley v. Platt, 40 Md. 529; Williams v. Dickenson, 28 Fla. 90, 9 South. 847; Allen v. Kirk, 81 Iowa, 659, 47 N. W. 906; Taylor Co. v. Standley, 79 Iowa, 669, 44 N. W. 911; Work v. McCoy, 87 Iowa, 217, 54 N. W. 140; Kilburn v. Rice, 151 Mass. 442, 24 N. E. 403; Percival v. Harres, 142 Pa. St. 369, 21 Atl. 876; Gaunce v. Backhouse, 37 Pa. St. 350; Brackett v. Griswald, 59 Hun, 617, 13 N. Y. Supp. 192; St. Paul Distilling Co. v. Pratt, 45 Minn. 215, 47 N. W. 789; Rollins v. Board of Com'rs, 15 Colo. 103, 25 Pac. 319; Strout v. Packard, 76 Me. 148. Letters written by one conspirator to another during alleged conspiracy are admissible. Zellerbach v. Allenberg, 99 Cal. 57, 33 Pac. 786. But see Blum v. Jones, 86 Tex. 492, 25 S. W. 694.

881 Casey v. Cincinnati Typographical Union No. 3, 45 Fed. 135; Rogers

SAME-STRIKES AND BOYCOTTS.

207. The essential elements of strikes and boycotts action

able as torts are

(a) A combination of persons to do harm to another; (b) Malicious intent; and

(c) Damage to complainant.

The Combination.

It is constantly and loosely said that, what one person may lawfully do singly, two or more may lawfully agree to do, and actually do, jointly.382 This can by no means be accepted at the present time as unqualifiedly true. Leaving technical reasoning and authority out of view for a moment, it is evident, from ordinary considerations, that the sum of a number of similar actions may result in a general effect, the elements of which are not apparent in isolated action. The separation of a single animal is not a stampede. A single desertion is not a panic. A single servant may leave his employment without suggesting the paralysis of a general "tie up." One member of a crew might, without wrong, leave a train, on the main traveled road, although it would be a criminal outrage for the entire train crew to abandon the train at the same point. There is, however, abundance of legal authority and reasoning against so artificial a conclusion.

In the criminal law, it is entirely clear that "an agreement to effect an injury or wrong to another by two or more persons constitutes an offense, because the wrong to be effected by a combination

v. Evarts (Sup.) 17 N. Y. Supp. 264; Mogul S. S. Co. v. M'Gregor, 15 Q. B, Div. 476; St. Paul Distilling Co. v. Pratt, 45 Minn. 215, 47 N. W. 789; Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906.

382 "What one man may lawfully do singly, two or more may lawfully agree to do jointly. The number who unite to do the act cannot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is, not the combination or conspiracy, but the damage done or threatened to the plaintiff by the acts of the defendants. If the act be unlawful, the combination of many to commit it may aggravate the injury, but cannot change the character of the act." Per Mitchell, J., in Bohn Manuf'g Co. v. Hollis, 54 Minn. 223–234, 55 N. W. 1119.

LAW OF TORTS-41

385

assumes a formidable character. When done by one alone, it is but a civil injury, but it assumes a formidable or aggravated character when it is to be effected by the powers of combination.” 383 In Com. v. Carlisle, (1821) where employers combined to depress the wages of their employés by artificial means, Chief Justice Gib son, "that judge of 'great and enduring reputation," said: "There is, between the different parts of the body politic, a reciprocity of action on each other, which, like the action of antagonizing muscles in the natural body, not only prescribes to each its appropriate state and condition, but regulates the motion of the whole. The effort of an individual to disturb this equilibrium can never be perceptible, nor carry the operation of his interest, or that of any other individual, beyond the limit of fair competition. But, the increase of power by combination of means being in geometrical proportion to the number concerned, an association may be able to give it impulse, not only oppressive to individuals, but mischievous to the public at large; and it is the employment of an engine so powerful and dangerous that gives criminality to an act that would be perfectly innocent, at least in a legal view, when done by an individual.” This distinction is recognized in civil cases as the basis of liability in tort, and as resting on sound reasoning, although caution should be exercised not to carry the doctrine beyond the limits necessary for protection of individuals.386

This view of the law has received indorsement in the recent strike cases. As a matter of fact, the questions of law which they involve

383 Rex v. Seward, 1 Adol. & E. 706. Cf. Reg. v. Peck, 9 Adol. & E. 686; Reg. v. Parnell, 14 Cox, Cr. Cas. 508-514; Queen v. Kenrick, 5 Q. B. 49; Com. v. Hunt, 4 Metc. (Mass.) 111-121; State v. Stewart, 59 Vt. 273-286, 9 Atl. 559; State v. Glidden, 55 Conn. 46-78, 8 Atl. 890.

384 Brightly, N. P. (Pa.) 36-41, Append.; Callan v. Wilson, 127 U. S. 540– 556, 8 Sup. Ct. 1301; Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. 803; Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190.

385 See Jenkins, J., in Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. 803 815.

386 Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, at page 616, In house of lords ([1892] App. Cas. 25, at page 38) Lord Halsbury said: "I do not deny that there are many things which might be perfeetly lawfully done by an individual, which, when done by a number of persons, become unlawful."

had immediate reference to injunction, rather than to damages, but the underlying principles enunciated control liability in tort.387

27 388

It is insisted that "any man (unless under contract obligation, or employment charging him with a public duty) has a right to refuse to work for or deal with any man, or class of men, as he sees fit; and this right, which one man may exercise singly, any number may agree to exercise jointly." Indeed, the common-law right of laborers to combine and use peaceful means to advance their interests, and, more specifically, the price of labor, has been generally broadened by statute.389 Where such a statute extends the common-law rights as to combinations of labor, the courts recognize corresponding changes in the rights of employers to combine to resist employés. Therefore, where employés enter into a lawful combination to control, by artificial means, the supply of labor, preparatory to a demand for an advance in wages, a combination of employers to resist such artificial advance is lawful, since it is not made to lower the price of labor, as regulated by supply and demand.390 However, the right of employés to leave their employment whenever they choose is far from being absolute.391 In Farmers' Loan & Trust Co. v.

387 "There would seem to be no good reason why, in some cases at least, the third person injured should not have a remedy also, theoretical but practically useless, against the striker, not for breach of contract, but for a tort committed in that breach by the misfeasance or nonfeasance of duty." Ardemus Stewart, Esq., on the legal side of the strike question, 1 Am. Law Reg. & Rev. 609-614. And see Temperton v. Russell [1893] 4 Reports, 376, at page 386, per Lord Justice A. L. Smith; Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. 815; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 746.

Beatty, J., in Coeur d'Alene
Fed. 260; Carew v. Ruther-

388 Pardee, J., in Re Higgins, 27 Fed. 443; Consolidated & Min. Co. v. Miners' Union, 51 ford, 106 Mass. 1; Bowen v. Matheson, 14 Allen (Mass.) 499; Snow v. Wheeler, 113 Mass. 179; Walker v. Cronin, 107 Mass. 555; Payne v. Western & A. R. Co., 13 Lea (Tenn.) 507; Cooley, Torts, 278; Hilton v. Eckersley, 6 El. & Bl. 47. And see Sir William Earl's treatise on the Law Relating to Traders' Unions, at page 13.

389 As in Mayer v. Journeymen Stone-Cutters' Ass'n, 47 N. J. Eq. 519, 20 Atl. 492. And see Perkins v. Rogg, 28 Wkly. Law Bul. 32.

390 Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190. And see Buchanan v. Barnes (Pa. Sup.) 28 Atl. 195; Buchanan v. Kerr, 159 Pa. St. 433, 28 Atl. 195. 391 "Rights are not absolute, but are relative. Rights grow out of duty, and are limited by duty. One has not the right arbitrarily to quit service

« ZurückWeiter »