Chapter VIII: Interference with Advantageous Relations (12)

But the defendants insist, and counsel vigorously urge, that this particular boycott is not open to such adverse criticism, because “there was no violence, intimidation, coercion or threats used, and that everything was done in a peaceful and orderly manner.” How far is this claim borne out by the facts? It is true, there was no public disturbance, no physical injury, no direct threats of personal violence or of actual attack on or destruction of tangible property as a means of intimidation or coercion. Force and violence, however, while they may enter largely into the question in a criminal prosecution, are not necessary factors in the right to a civil remedy. But even in criminal law, I do not understand that intimidation, even when a statutory ingredient of crime, necessarily presupposes personal injury or the fear thereof. The clear weight of authority undoubtedly is that a man may be intimidated into doing, or refraining from doing, by fear of loss of business, property or reputation, as well as by dread of loss of life, or injury to health or limb; and the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him not to do, or to do, that which otherwise he would have done or have left undone.

There can be no reasonable dispute that the whole proceeding or boycott in this controversy is to force Mr. Barr, by fear of loss of business, to conduct that business, not according to his own judgment, but in accordance with the determination of the typographical union, and, so far as he is concerned, it is an attempt to intimidate and coerce.

Next as to the members of the various labor unions. According to Mr. Beckmeyer, all the organizations represented in the trades council and the individual members thereof, in strict conformity with the purpose and object for which the said council was organized, withheld their patronage from the said newspaper on the mere announcement by the typographical union to the trades council that that union had withdrawn its endorsement from the “Times.” Why? It is said that it was only the exercise by each person of his right to spend his money as his own will dictated. The fallacy of this is apparent. It loses sight of the combination, the whole strength of which lies in the fact that each individual has surrendered his own discretion and will to the direction of the accredited representative of all the organizations. He no longer uses his own judgment, but, by entering into the combination, agrees to be bound by its decree. As is said in Templeton _v._ Russell, _supra_, “those men had bound themselves to obey, and they knew they had done so, and that if they did not obey they would be fined, or expelled from the union to which they belonged.” It is common knowledge, if indeed it does not amply so appear by the papers in this case, that a member of a labor organization who does not submit to the edict of his union asserts his independence of judgment and action at the risk, if not the absolute sacrifice, of all association with his fellow-members. They will not eat, drink, live or work in his company. Branded by the peculiarly offensive epithets adopted, he must exist ostracized, socially and industrially, so far as his former associates are concerned. Freedom of will under such circumstances cannot be expected.

Next as to the advertising public. Tradesmen advertise in newspapers for the sole purpose of drawing customers to their stores. An authoritative announcement, not from one, but from many sources, that the body of organized labor in the city or county representing a purchasing power of $400,000 a week would cease to deal with those whose advertisements appeared in the newspaper, would have a much more deterrent effect than any threat of violence. To say that this is only advice, or an intimation, to the advertiser for his guidance if he sees fit to accept it, is trifling with the language. Advice, behind which lurks the threat of the withdrawal of such a volume of business, could have no other effect than to intimidate and coerce, as it did in fact make several change their judgment, which had previously led them to advertise in the paper. The claim that this boycott was attempted to be enforced without intimidation or coercion will not bear the light of examination.

A legal excuse for the action of the defendants is next sought in the claim that the Essex Trades Council is a business institution, and that what it has done has been in prosecution of such business, seeking, I suppose, to bring the case within the rule of Mogul Steamship Co. _v._ McGregor, 15 Q. B. Div. 476; 23 Q. B. Div. 598. That case proceeded on the doctrine of a lawful competition in business, both parties being engaged in carrying on the same character of business, and the acts complained of having been adopted for the advancement of the defendant’s own trade, viz., carrying goods on a steamship line, although thereby damage to the other party necessarily ensued.

I see no similarity in the business of these parties. That of the complainant is the publisher of a newspaper. Members of the typographical union, and stereotypers’ and pressmen’s union, are skilled workmen, whose services might be employed in such business, but they are not carrying on any enterprise in competition with that of the complainant. So far as the other unions are concerned, the most, if not all of them, have no connection with such trade.

Neither does the claim of the Essex Trades Council, that it is a business institution, stand on any firmer ground. The only element of business which it is engaged in would appear from the facts to be the furnishing to tradesmen of printed cards, certifying that they are proper persons for the members of trades unions to deal with, suitable to be displayed in conspicuous places in such tradesmen’s places of business. This was supplemented by the issue, under date of March 31, 1894, of the small pocket pamphlet entitled “The Fair List of Newark, N. J.,” containing the names and addresses of tradesmen and persons in business in Newark, with items of information and advice. Why this is called a business does not appear. It is not stated that any compensation is either required or received by the trades council from the tradespeople for granting or continuing those endorsements, but whether this is so or not, it is in no sense a competing business with the publication of a daily newspaper, and therefore does not come within the principle of the case referred to.

The order to show cause, as far as relates to [eight specified organizations], they having all disclaimed any participation in the acts complained of, must be discharged, with costs. The said order to show cause, so far as relates to the other defendants, must be made absolute, with costs, and an injunction may issue against them, restraining them from distributing or circulating any circulars, printed resolutions, bulletins, or other publications containing appeals or threats against the “Newark Times,” or the complainants, its publishers, with the design and tending to interfere with their business in publishing said paper, and from making any threats or using any intimidation to the dealers or advertisers in such newspaper tending to cause them to withdraw their business from such newspaper.[621]

PIERCE _v._ THE STABLEMEN’S UNION LOCAL NO. 8760
SUPREME COURT, CALIFORNIA, JULY 6, 1909.
_Reported in 156 California Reports, 70._

HENSHAW, J. The plaintiff went into equity seeking an injunction to restrain the defendants from illegal interference with its business. Plaintiff conducted a livery, board and feed stable in the city and county of San Francisco. The officers and representatives of defendant made request of him to “unionize” his stable by discharging his non-union employees and employing union men in their places. Upon his refusal, a strike of the union men was declared. Following the strike, a boycott was decreed. A patrol about plaintiffs place of business was established, and, under the findings, these representatives of the defendants, the pickets, “called forth in loud, threatening, and menacing tones to the patrons and customers of plaintiffs not to patronize plaintiffs in their said business; defendant, the Stablemen’s Union, through its agents and representatives, has stated to and threatened patrons and customers and other persons dealing with plaintiffs that if said patrons and customers and other persons continued to patronize and do business with plaintiffs, said Stablemen’s Union would cause them respectively to be boycotted in their business.” Menacing terms and threatening language were made use of by the agents, representatives, and pickets of the union toward the employees of the plaintiffs, such as: “Unfair stable; union men locked out and non-union men put in; look at this stable, the only unfair stable on Market Street; the stable that always was and always will be unfair. This is a scab stable. When we catch you outside, we will finish you. We will get you yet. It is a scab stable, full of scabs. We will fix you yet. It is a matter of time when we will get you all right. You will never get out of the stable alive. We will break you in half. We will beat you to death. When we catch you outside, we will finish you.” A judgment for an injunction followed upon these findings, and that judgment by its terms commanded the defendant, its agents and employees, to desist and refrain “from in any wise interfering with, or harassing, or annoying, or obstructing plaintiff in the conduct of the business of their stable, known as the Nevada Stables and situated at number 1350 Market Street, in the city and county of San Francisco; or from in any wise molesting, interfering with, threatening, intimidating, or harassing any employee or employees of plaintiffs; or from intimidating, harassing, or interfering with any customer or customers, patron or patrons of plaintiffs in connection with the business of plaintiffs, either by boycott or by threats of boycott, or by any other threats; or by any kind of force, violence, or intimidation, or by other unlawful means, seeking to induce any employee or employees of plaintiffs to withdraw from the service of plaintiffs; or by any kind of violence, threats, or intimidation inducing, or seeking to induce, any customer or customers, patron or patrons, of plaintiffs to withdraw their patronage or business from them, or from stationing or placing in front of said plaintiffs’ place of business any picket, or pickets, for the purpose of injuring, obstructing, or in any wise interfering with, the business of plaintiffs, or for the purpose of preventing any customer or customers, patron or patrons, of plaintiffs from doing business with them; or from in any other way molesting, intimidating, or coercing, or attempt to molest or intimidate or coerce any customer, patron, or employee of plaintiffs now or hereafter dealing with, or any employee now or hereafter employed by, or working for plaintiffs in their said business.”

This appeal is from the judgment. The findings are not attacked. Certain objections to the complaint are presented upon demurrer, and these may be briefly disposed of. The complaint is sufficient to invoke the interposition of a court of equity. It is in this respect similar to the complaint considered in Goldberg-Bowen Co. _v._ Stablemen’s Union, 149 Cal. 429. The complaint alleges specific acts calling for preventive relief, and is not confined to mere generalities, as was the case in Davitt _v._ American Bakers’ Union, 124 Cal. 99. The fact that certain of the acts charged amount to crimes or threatened crimes, does not offer reason why equity will refuse to restrain them. While equity will not attempt to restrain the commission of a crime as such, the fact that an act threatening irreparable injury to property rights, is of itself criminal, does not deprive a court of equity of its right and power to enjoin its commission. (_In re_ Debs, 158 U. S. 564; Sherry _v._ Perkins, 144 Mass. 212; Vegelahn _v._ Guntner, 167 Mass. 92.) In like manner, while equity will not enjoin against a trespass as such, yet when the acts committed and threatened are in the nature of a continuing trespass, working irreparable injury, they will be enjoined. (Boston R. R. _v._ Sullivan, 177 Mass. 230; Lembeck _v._ Nye, 47 Ohio, 336.)

Appellants’ principal contentions upon the appeal, however, are the following: First, that, as the controversy between these parties arises from and over a trade dispute, the court is powerless to grant any injunction under the language of “An act to limit the meaning of the word ‘conspiracy’ and also the use of restraining orders and injunctions as applied to disputes between employers and employees in the State of California, approved March 20, 1903” (Pen. Code, page 581); second, that the boycott is a legal weapon in a trade dispute and, therefore, an injunction should not issue to restrain its use or threatened use; third, that “picketing” as an adjunct to the boycott is itself legal and may not be forbidden.

1. As to the first of these contentions, this court had occasion in Goldberg, etc., Co. _v._ Stablemen’s Union, 149 Cal. 429, to consider the statute above referred to and relied upon by appellants, and declared that if the construction there contended for (and here contended for) was the proper construction, this provision of the court was void. Not only would it be void as violative of one’s constitutional right to acquire, possess, enjoy, and protect property, but as well would it be obnoxious to the constitution in creating arbitrarily and without reason a class above and beyond the law which is applicable to all other individuals and classes. It would legalize a combination in restraint of trade or commerce, entered into by a trades union, which would be illegal if entered into by any other persons or associations. It would exempt trades unions from the operation of the general laws of the land, under circumstances where the same laws would operate against all other individuals, combinations, or associations. It is thus not only special legislation, obnoxious to the constitution (Art. IV, sec. 25, subds. 3 and 33), but it still further violates the constitution in attempting to grant privileges and immunities to certain citizens or classes of citizens which, upon the same terms, have not been granted to all citizens (Art. I, sec. 21).

2. In considering the second proposition, whether or not a court of equity may enjoin a boycott, the meaning of the word is of primary importance. It is defined in 4 Am. & Eng. Enc. of Law, 2d ed., page 85, as follows: “The boycott is a conspiracy, the direct object of which is to occasion loss to the party or parties against whom the conspiracy is directed, and the means commonly used is the inducing of others to withdraw from such party or parties their patronage and business intercourse by threats that, unless they so withdraw, the members of the combination will cause, directly or indirectly, loss of a similar character to them.” Appellants announce their willingness to accept this definition, substituting the word “confederacy” or “combination” for “conspiracy.” But the definition, even as so amended, it will be noted is not complete. The “means commonly used” are specified, but other means may be and frequently are employed. A boycott may adopt illegal means and thus become a “conspiracy,” a word which imports illegality; or a boycott may employ legal means and methods, and thus be merely a legitimate combination by a number of men to accomplish, within the law, a legal result. The crux of the question and the strain in every case turns, then, upon the means employed. We think that to-day no court would question the right of an organized union of employes, by concerted action, to cease their employment (no contractual obligation standing in the way), and this action constitutes a “strike.” We think, moreover, that no court questions the right of those same men to cease dealing by concerted action, either socially or by way of business, with their former employer, and this latter act, in its essence, constitutes the “primary boycott.” But what acts organized labor may do, and what means it may adopt to accomplish its end, without violation of the law, have presented questions of much nicety, over which the courts have stood, and still stand, widely divided. It would not be profitable to discuss and analyze these widely divergent cases. It is sufficient to formulate briefly the principles adopted in this state, many of which have recently found elaborate expression in the case of Parkinson _v._ Building & Trades Council of Santa Clara, 36 Cal. Dec. 445. The right of united labor to strike, in furtherance of their trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to comply with the employees’ demand for the betterment of wages, conditions, hours of labor, the discharge of one employee, the engagement of another—any one of the multifarious ends which in good faith may be believed to tend toward the advancement of the employees. After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the concerted right to the withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C who has no difference with either. It contemplates that C, upon the demand of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. This is the “secondary boycott,” the legality of which is vigorously denied by the English courts, the federal courts, and by the courts of many of the states of this nation. Without presenting the authorities, which are multitudinous, suffice it to state the other view in language of the President of the United States but recently uttered: “A body of workmen are dissatisfied with the terms of their employment. They seek to compel their employer to come to their terms by striking. They may legally do so. The loss and inconvenience he suffers he cannot complain of. But when they seek to compel third persons, who have no quarrel with their employer, to withdraw from all association with him by threats that, unless such third persons do so, the workmen will inflict similar injury on such third persons, the combination is oppressive, involves duress, and if injury results, it is actionable.” (President Taft, McClure’s Magazine, June, 1909, page 204.) Notwithstanding the great dignity which attaches to an utterance such as this, which, as has been said, is but the expression of numerous courts upon the subject-matter, this court, after great deliberation, took what it believed to be the truer and more advanced ground above indicated and fully set forth in Parkinson _v._ Building & Trades Council, etc., _supra_. In this respect this court recognizes no substantial distinction between the so-called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and all other persons to do the same, and in the exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal. However opposed to the weight of federal authority the views of this court are, that they are not unique may be noted by reading National Protective Association _v._ Cumming, 170 N. Y. 315; Lindsay _v._ Montana Federation of Labor, (Mont.) 18 L. R. A. (N. S.) 707, where the highest courts of those states formulate and adopt like principles.

It has been said that it is important to any correct understanding of or adjudication upon such questions that a definition of the word “boycott” should be first stated. Thus, to say that a boycott is a “conspiracy” immediately implies illegality, and puts the conduct of the boycotters under the ban of the law. So also does the definition which describes boycotting as “illegal coercion” designed to accomplish a certain end. As we have undertaken to define boycott, it is an organized effort to persuade or coerce, which may be legal or illegal, according to the means employed. In other jurisdictions where a definition is given to a boycott which imports illegality the injunction will of course lie against boycotting as such. In this state the injunction will issue, depending upon the circumstances whether the means employed, or threatened to be employed, are legal or illegal.

3. We are thus brought to consider the method of “picketing,” the use of which appellants contend is a legal weapon in their hands. So far in this discussion we have dealt exclusively with the respective rights of the employer and of the employee. There are other parties, however, whose rights are entitled to equal consideration, and whose rights always become involved and imperilled when picketing is adopted as a coercive measure in aid of a boycott.

If the strikers have the right, as above indicated, to withdraw patronage themselves and by fair publication, written and oral persuasion to induce others to join in their cause, and finally by threat of like boycott to coerce others into so doing, their rights go no further than this. It is the equal right of the employer to insist before the law that his business shall be subject at the hands of the strikers to no other detriment than that which follows as a consequence of the legal acts of the strikers so above set forth. It is not to be forgotten that when the employees have struck, they occupy no contractual relationship whatsoever to their former employer, and have no right to coerce him or attempt to coerce him by the employment of any other means than those which are equally open to any other individual or association of individuals. No sanctity attaches to a trades union which puts it above the law, or which confers upon it rights not enjoyed by any other individual or association. The two classes of persons to whom we have adverted and whose rights necessarily become involved where a picket or patrol is established, are, first, the rights of those employed or seeking employment in the place of the striking laborers, and, second, the rights of the general public. It is the absolute, unqualified right of every employee, as well as of every other person, to go about his legal business unmolested and unobstructed and free from intimidation, force, or duress. The right of a labor association to strike is no higher than the right of a non-union workman to take employment in place of the strikers. Under the assurance and shield of the Constitution and of the laws, the non-union laborer may go to and from his labor and remain at his place of labor in absolute security from unlawful molestations, and wherever the laws fail to accord such protection, in so far is their execution to be blamed. In this country a man’s constitutional liberty means far more than his mere personal freedom. It means that, among other rights, his is the right freely to labor and to own the fruits of his toil. (_Ex parte_ Jentzsch, 112 Cal. 468.) Any act of boycotting, therefore, which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by intimidation upon the physical fears, is unlawful.

The inconvenience which the public may suffer by reason of a boycott lawfully conducted is in no sense a legal injury. But the public’s rights are invaded the moment the means employed are such as are calculated to and naturally do incite to crowds, riots, and disturbances of the peace.

A picket, in its very nature, tends to accomplish, and is designed to accomplish, these very things. It tends to and is designed, by physical intimidation, to deter other men from seeking employment in the places vacated by the strikers. It tends, and is designed, to drive business away from the boycotted place, not by the legitimate methods of persuasion, but by the illegitimate means of physical intimidation and fear. Crowds naturally collect; disturbances of the peace are always imminent and of frequent occurrence. Many peaceful citizens, men and women, are always deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to split hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual peacefully endeavoring by persuasion to prevent customers from entering the boycotted place. The plain facts are always at variance with such refinements of reason. Says Chief Justice Shaw in Commonwealth _v._ Hunt, 4 Met. 111: “The law is not to be hoodwinked by colorable pretences; it looks at truth and reality through whatever disguise it may assume.” If it be said that neither threats nor intimidations are used, no man can fail to see that there may be threats, and there may be intimidations, and there may be molesting, and there may be obstructing, without there being any express words used by which a man should show violent threats toward another, or any express intimidation. We think it plain that the very end to be attained by picketing, however artful may be the means to accomplish that end, is the injury of the boycotted business through physical molestation and physical fear caused to the employer, to those whom he may have employed or who may seek employment from him, and to the general public. The boycott, having employed these means for this unquestioned purpose, is illegal, and a court will not seek by over-niceties and refinements to legalize the use of this unquestionably illegal instrument. (Vegelahn _v._ Guntner, _supra_, Crump _v._ Commonwealth, 84 Va. 927; Union Pacific _v._ Ruef, 120 Fed. Rep. 124; 18 Ency. of Law, 2d ed., page 85.)

In conclusion, then, and applying these principles to the injunction here under consideration, it appears that, while the injunction was properly granted, it was broader in its terms than the law warrants. It was, for example, too broad in restraining defendants from “in any wise interfering with” plaintiff’s business, since the interference which we have discussed, of publication, reasonable persuasion, and threat to withdraw patronage, is legal and such as defendants could employ. So, also, was the injunction too broad in restraining defendants from “intimidating any customer by boycott or threat of boycott,” since, as has been said, the secondary boycott is likewise a legal weapon. In all other respects, however, the injunction was proper.

The trial court is directed to modify its injunction in the particulars here specified, and in all other respects the judgment will stand affirmed.

We concur: LORIGAN, J.; BEATTY, C. J.; MELVIN, J.

SHAW, J. I agree with all that is said by Justice Henshaw in his opinion, except the part relating to the so-called “secondary boycott” and the attempt to draw a distinction between the compulsion of third persons caused by picketing, and the compulsion of third persons produced by a boycott. My views concerning the “secondary boycott” are expressed in my dissenting opinion in Parkinson _v._ Building Trades Council, (Cal.) 98 Pac. 1040. The means employed for the coercion or intimidation of a third person in a “secondary boycott” are unlawful whenever they are such as are calculated to, and actually do, destroy his free will and cause him to act contrary to his own volition in his own business, to the detriment of the person toward whom the main boycott or strike is directed; in other words, whenever the means used constitute duress, menace, or undue influence. Whether this coercion or compulsion comes from fear of physical violence, as in the case of picketing, or from fear of financial loss, as in the secondary boycott, or from fear of any other infliction, is, in my opinion, immaterial, so long as the fear is sufficiently potent to control the action of those upon whom it is cast. I can see no logical or just reason for the distinction thus sought to be made. There is no such distinction in cases where contracts or wills are declared void, because procured by duress, menace, or undue influence. There should be none where actual injury is produced or threatened through such means acting upon third persons. Nor do I believe any well-considered case authorizes any such distinction. The opinions in the case of National Protective Association _v._ Cummings, 170 N. Y. 315, are devoted to a discussion of the right to strike and the limitations of that right and not to a discussion of the “secondary boycott.” A close analysis of the cases on the subject will, as I believe, show that this court stands alone on this point.

For these reasons I do not agree to that part of the judgment directing a modification of the injunction. I believe that it should stand in the form as given by the court below.

ANGELLOTTI, J., and SLOSS, J.

We concur in the judgment. The modification of the judgment is in line with the views announced in the Parkinson case. So far as “picketing” is concerned, while we are not prepared to hold that there may not be acts coming within that term as it is accepted and understood in labor disputes, that are entirely lawful and should not be enjoined, we believe that as to such “picketing” as is described in both findings and judgment in this case, the views expressed in the opinion of the court are correct.[622]

INDEX

ABANDONMENT,
of action, if voluntary, equivalent to termination in defendant’s
favor, 629.
of action, by way of compromise, not equivalent to termination in
defendant’s favor, 629.

ABSTRACTER OF TITLE,
liability to third party injured by mistake or omission, 262 n.

ABUSE OF PROCESS,
malicious, 653.

ACCIDENT,
without negligence, excuses trespass to person, 29, 30, 35, 40.
excuses trespass to personalty, 42.
through negligence, no excuse for a trespass, 29, 30, 35.

ACTION (see MALICIOUS INSTITUTION OF CIVIL ACTION).

ADVERTISING,
blind, interference with, 838.

ADVICE,
of counsel, probable cause for prosecution of plaintiff, 634.

ADVOCATE,
statements by, when privileged, 697, 709.

ANIMALS,
trespass on land by cattle, 404, 406.
trespass on land by dog, 406 n., 445.
trespass on land by chickens, 406 n.
liability of owner for trespass by cattle driven on highway, 406, 409
n.
statutes as to trespassing animals, 409, 410 n.
common law as to trespassing, how far applicable in U. S., 410, 414
n.
liability where cattle turned on another’s unenclosed lands, 414 n.
liability of owner of unenclosed lands for injury to trespassing
cattle, 409, 415.
whether a right of pasturage on unenclosed lands, 415, 419 n.
liability for injuries by wild, 419, 421, 422.
liability for injuries by vicious domestic, 421, 421 n.
classification of animals with respect to liability for injuries by,
423, 427 n.
liability for injuries by bees, 425 n.
what are wild, 424, 425.
injury through fright at sight of wild animal, 427.
interference with wild, bars recovery for injury, 430.
contributory negligence of person injured by, 432 n.
injury by domestic, scienter necessary, 433, 434 n.
injury to trespasser by domestic, 434 n.
vicious dog killed by trespassing dog, 434 n.
what constitutes scienter, 434 n.
liability for injury by vicious, where neither scienter nor
negligence, 434, 436 n.
what is dangerous propensity, 437.
injury by horse running at large on highway, 438, 440.
injury to person by trespassing, 441, 448, 451 n.
injury to person by trespassing hen, 450.
injury to person by trespassing animal, normally harmless, 450.
escape of wild or vicious, through _vis major_, 471.
escape of wild or vicious, through act of third person, 436 n.
injury by vicious, when excited by third person, 436 n.

ARREST (see MALICIOUS INSTITUTION OF CIVIL ACTION),
what is, 19, 20, 21.

ARTICLES OF PEACE,
malicious exhibition of, 626.

ASSAULT,
what is, 1, 2, 4, 6, 7, 10.
what is not, 2, 3, 11.
complete without contact, 1.
aiming unloaded gun, 7, 9 n.
firing revolver in plaintiff’s presence, but not at him, 7 n.
act of preparation for, 2 n.
intention of defendant, 7, 10 n.
present ability to injure, 7, 9 n.
aggravation of, 11.
insulting words, looks, and gestures, no, 11, 11 n., 12 n.

ASSUMPTION OF RISK,
by trespasser, 157, 160.
by licensee, 177, 179.
by servant, 201.
by interference with wild animal, 430.
of another’s negligence, 345, 351 n.

ATTACHMENT,
action lies for maliciously causing, 629 n., 646.

ATTORNEY (see COUNSEL).

AUTOMOBILES,
operation of, by unlicensed person, 402 n.
unlicensed, status of in highway, 398, 400 n., 402 n.

BAILEE,
standard of care, 82 n.

BANKRUPTCY,
malicious institution of proceedings in, 644.
imputation of, to a business man, 690.

BATTERY,
what is, 12, 16.
what is not, 12, 13.
hostile touching, 12 n.
touching _contra bonos mores_, 12 n.
unauthorized surgical operation, 12 n.
defendant must be actor to make, 13.
touching plaintiff to attract his attention, when a, 13.
by striking a horse when driven, 15.
whether indictment for, will support action of malicious prosecution,
624.
injury to clothes on plaintiff’s person, 16 n.
cutting rope connecting plaintiff with his slave, 16 n.
injury in course of “friendly scuffle,” 18 n.

BEES,
liability of owner of, for injuries, 425 n.

BLASTING,
injuries by, 40 n.

BOYCOTT (see COMPETITION, MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING
CONDUCT OF ANOTHER),
secondary, 998, 1004.
for the purpose of strengthening union, 978, 987.
for the purpose of gaining control of labor market, 989 n.
for the purpose of forcing third person to bring pressure on
employer, 997.

BREACH OF STATUTORY DUTY (see PUBLIC WRONG),
how far ground of private action, 510, 512 n., 513, 515, 516.
to repair street or sidewalk, 513 n.
toward third person, 516, 520 n.
liability to trespasser or licensee in case of, 520 n.

BUSINESS,
slander of one in his (see DEFAMATION).

CANDIDATE,
discussion of qualifications of, 755.

CARRIER,
may be sued either upon contract or tort, 125, 126 n.

CLERGYMAN,
imputation of misconduct to, 689 n.
not liable for public refusal of communion, 757.

COMBINATION,
whether members of, liable for acts which would be lawful if done by
a single individual, 910, 976, 977 n.

COMMENT,
fair, on public matters, not actionable, 726, 769.
aspersion of motives not fair, 766, 775.
false charge of specific acts not fair, 775 n., 785 n., 792.
fair, distinguished from privileged occasion, 760, 779, 795 n.
violent attacks and insulting words not, 786 n.

COMMERCIAL AGENCY,
statements by, when privileged, 739 n.

COMPETITION,
conflict between employers and employed is, 976.
mere rivalry is fair, 936.
puffing is fair, 826.
combination to smash rates is fair, 906.
reducing prices, 913.
sending our rival’s business card in injurious manner, not fair, 831.
bad motive, 913, 918, 923, 939.
inducing servant at will to leave master, whether fair, 873 n.
inducing servant to leave at expiration of term, 872 n.
influencing third person by fraud, not fair, 827, 828 n., 907 (but
see 858).
misleading use of one’s own name, 829 n.
influencing third persons by force or threats of physical injury, not
fair, 864, 935, 937, 907.
boycotting by threats of pecuniary damage, not fair, 952, 978, 989,
996, 998, 1004.
inducing third person to break contract, not fair, 907, 908.

CONSENT (see LEAVE AND LICENSE).

CONSPIRACY (see COMBINATION),
to defraud creditors, 846.
to suborn witnesses, 710.
to alter provisions of will, 852.

CONTRACT,
causing breach of, a tort, 874, 884, 887, 908.

CONTRIBUTORY NEGLIGENCE (see PUBLIC WRONG),
an affirmative defence, 264 n.
must be negatived by plaintiff, 264, 264 n.
a bar to recovery, 263, 266 n., 274.
must be a proximate cause of the injury, 265, 294, 296 n.
doctrine of comparative negligence, 267, 269, 269 n.
apportionment of loss, 269, 273 n.
doctrine of last clear chance, 275, 278, 279, 281, 282, 283, 288,
295, 296, 299, 301, 302, 308, 317, 320, 321, 322, 324, 337.
of child, 327, 328, 329.
humanitarian doctrine, 330.
no bar in case of wilful or intentional injury, 334, 337.
exposure of property to danger from negligence of another, 345, 351
n.
of carrier not imputable to passenger, 352, 368 n.
of driver of vehicle, when imputed, 359, 360 n., 361, 364.
of participant in joint enterprise, 362.
of agent or servant imputed, 362 n.
of husband whether imputed to wife, 362 n.
as between fellow servants, 362 n.
of bailee whether bars bailor, 362 n.
of parent or custodian of child whether imputed to child, 366, 370
n., 370.
of beneficiary under Lord Campbell’s Act whether bar to recovery,
371, 374, 374 n., 377 n.
in case of injury by animals, 432 n.

COUNSEL,
statements by, when privileged, 697, 709 n.
advice of, probable cause for prosecution, 634.

CREDITORS,
conspiracy in fraud of (see CONSPIRACY).

CRITICISM (see COMMENT).

DAMAGE,
whether action for deceit without, 525, 529, 595.
measure of, in action for deceit, 604, 605, 606 n.
caused by repetition of slander by third person too remote, 809.
slander actionable by reason of special, 807, 808, 809, 811.
loss of society of friends and consequent illness not special, 808.
loss of hospitality is special, 810.
loss of performance of gratuitous promise is special, 811.
loss of performance of promise to marry is special, 884 n.
loss of performance of contract where performance reasonably assured
is special, 887 n.
malicious but not defamatory words, whether actionable, if special,
812.
no action for slander of title without special, 816.
special, what is, 819 n., 847 n., 856, 859 n., 884 n.
special, not necessary where one passes off his product as another’s,
829 n.
special, not necessary in action for malicious injury to business,
854.

DANGEROUS USE OF LAND,
for reservoir, 452, 482 n.
“non natural use,” 463, 463 n.
what is, 463 n., 466 n.
tank of petroleum, 466 n., 482 n.
stored nitroglycerin, 466 n.
hydraulic mains, 467 n.
customary or statutory authority to make, 467 n.
no liability for, in case of _vis major_, 468.
no liability in case of interference by third person, 475.
steam boiler, 477.
explosives, 482 n., 498, 502.
doctrine of, considered, 477, 482.
water pipes in building whether, 492.
gas in pipes, 493 n.
allowing land to go to weeds not, 493.
maintaining fire, 496.
fires set by locomotives, 497 n.

DAUGHTER,
no action for marrying one’s, 869 n.

DECEIT,
requisites of action for, 521, 530.
whether action for, without damage, 529, 531, 595, 596 n.
fraudulently procuring wife to refuse to live with husband, 533.
sufficient if false statement one motive of plaintiff’s action, 535,
536 n.
representation of intention, 537, 539, 541 n., 542, 547 n.
purchase on credit with present intention not to pay, 542, 548.
promissory representation, 550.
known impossible prophecy, 551 n.
statement of vendor as to price, 551, 553 n.
statement of opinion, 551, 553, 555.
statement as to value, 553 n.
statement as to value of promissory note, 557.
statement of value, whether opinion or fact, 551, 553, 555, 559, 560
n.
statement as to matter within special knowledge of defendant, 556,
560, 616.
concealment of material fact, 561, 562 n.
statement must be known to be false or made recklessly, 563, 569 n.
statement made recklessly without knowledge of facts, 573 n.
liability for innocent or negligent misrepresentation, 572, 573 n.,
574, 576.
statement by fiduciary, 578.
estoppel to deny truth of statement, 580, 582 n.
duty to make representation good, 581.
duty to know whether statement true, 583, 584 n.
statement of belief as if fact, 584.
statement without reasonable ground for belief, 588 n.
reliance on statement where defendant obviously without personal
knowledge, 588 n.
not necessary that defendant profit by, 588.
statement expected to be passed on to others, 592, 595 n.
statement not expected to be passed on to others, 595.
procuring plaintiff to incur liability, 597, 598.
procuring plaintiff to refrain from selling property, 599, 601.
whether plaintiff must use diligence to guard against, 606, 607 n.,
608, 612 n., 616, 617 n.
execution of instrument without reading, 608 n.
reliance on representation where equal means of knowledge, 608 n.,
612.
reliance on friendship, 608 n.
reliance on representation where plaintiff informed of truth by
another, 612 n.
reliance on assertion of title, 612 n.
reliance on statement as to boundary, 612 n.
reliance on representation as to quantity of land, 612, 613.
refusal of defendant to put representation in writing, 612 n.
representation as to law, 616 n.
stipulations against liability for, 617.
measure of damage in action for, 604, 605, 606 n.

DEFAMATION,
_Publication_,
communication to plaintiff alone not a, 657, 659.
communication to plaintiff’s wife, 658.
communication by defamer to his own wife, 658 n.
communication to business partner, 658 n.
communication to plaintiff’s attorney, 659 n.
mailing of post card, whether a, 660 n.
in ignorance of the libel, 660 n.
must be of and concerning plaintiff, 665.
of and concerning plaintiff, what is, 669, 672, 676.
reading letter to third person a, 658.
reading letter by third person a, 659.
_Libel_,
what is, 679.
defamatory statement that describes two different persons, 671.
defamatory statements partially describing each of two different
persons, 672.
words injurious to plaintiff in the eyes of part of the community,
673, 674 n.
use of plaintiff’s name to describe fictitious person, 674.
_Slander_,
words imputing crime, 661, 682, 683.
words imputing unchastity to a woman, 683, 685.
words disparaging one in his calling, 687, 690, 691.
imputation of misconduct to clergyman, 689 n.
imputation of misconduct to teacher, 689 n.
imputation of drunkenness to officer, 689 n.
imputation of insolvency to tradesman, 690.
imputation of cheating to tradesman, 691 n.
imputation of ignorance to physician, 692.
imputation of misconduct in office of honor not of profit, 693 n.
words imputing a loathsome disease, 694, 695.
imputation of insanity, 694, 695 n.
defamatory words causing special damage, 807, 808, 809, 811.
words to be taken in natural sense, 661.
_Justification_,
truth a, 695.
belief in truth not, 676, 771 n.
repetition not a, 677.
_Absolutely Privileged Occasions_,
statements in legislative proceedings, 697 n., 710 n.
in course of acts of state, 697 n.
official statements of administrative officers, 710 n.
statements in judicial proceedings, by judge, 695; by witness, 703,
707;
by counsel, 697, 702 n.
what are judicial proceedings, 702 n., 710 n.
irrelevant statements in judicial proceedings, 696, 703, 707, 709
n.
what statements are irrelevant, 704, 709 n., 710 n.
_Conditionally Privileged Occasions_,
reports of legislative proceedings, 720.
reports of judicial proceedings, 714.
reports of ex parte judicial proceedings, 716.
reports of quasi judicial proceedings, 729, 729 n.
report of proceedings of church commission, 730 n.
petition or memorial for removal of public officer, 768 n.
fair abstracts of judicial proceedings, 731.
reports of public meetings in general, whether, 727, 728 n.
publication of reports of administrative officers, 729 n.
reports of news by newspapers not, 732.
statements in common interest of maker and receiver, 734, 736 n.
statements by person immediately interested to protect his own
interest, 737 n.
statement of suspicions in course of investigation of crime, 736.
statement in course of dispute as to property, 738 n.
solicited statements in interest of receiver, 738.
statement by commercial agency, 739 n.
statement by attorney to client, 740 n.
statement in course of business duty, 740 n.
statement by member of family as to character of suitor, 740 n.
statement as to character of candidate for admission to society,
740 n.
solicited statements as to character of servant, 738.
solicited statements as to credit of tradesman, 739 n.
statements by a fiduciary to his principal, 740 n.
volunteered statements in interest of receiver, when, 740, 746 n.,
747, 749.
publication of, in presence of stranger, 750, 753, 754 n.
general publication as to candidate for local office, 754 n.
publication of matter of public interest in the community, 755.
statements in public meetings, 756 n.
published reply to defamatory statements, 756 n.
publication to representative of interested receiver, 763.
publication of, on post card, not justifiable, 754.
publication of, to type-writer, whether justifiable, 758, 761 n.
publication of, to wrong person, by mistake, whether excused, 761
n.
malice destroys immunity in, 761.
_Fair Comment_,
upon public matters not actionable, 726, 769, 771 n.
what are public matters, 771 n., 795 n.
distinguished from privilege, 770, 779, 795 n.
criticism of published writings when, 772, 775, 782.
aspersion of motives not, 769, 775.
false charges of specific acts, 775 n., 785 n., 792.
violent attacks and insulting statements, not, 786 n.
_Malice_,
in fact and law, 662.
what is, 749, 771 n.
burden is on plaintiff to show, 790 n.
publication _prima facie_ evidence of, 663.
express, must be proved, if occasion is privileged, 790.
a question of _bona fides_ not of reasonableness, 763.
a question of reasonableness as well as _bona fides_, 766.

DISPARAGEMENT OF PROPERTY, 815 n.
of title (see SLANDER OF TITLE).
of goods, 819, 823 n., 861.

DOGS (see ANIMALS),
trespass on land by, 406 n., 445.

DRUNKENNESS,
no excuse for tort, 662 n.

EMPLOYER AND EMPLOYEE (see MASTER AND SERVANT),
right of employer “to have labor flow freely to him,” 903.
inducing breach of contract by employees, 884, 887.
inducing employer to discharge employee because not a member of trade
union, 939, 978 (see MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING
CONDUCT OF ANOTHER).
boycotting, 950, 952, 978, 988, 989 n., 997, 998, 1004.
picketing, 978 n.

ENTICING,
servant, 864, 868.

FALSE IMPRISONMENT (see IMPRISONMENT).

FENCE,
malicious erection of, 928.

FRIGHT (see MENTAL OR NERVOUS SHOCK).

HUMANITARIAN DOCTRINE (see CONTRIBUTORY NEGLIGENCE).

IMPRISONMENT (see ARREST),
what is, 18, 20, 21, 21 n., 23, 23 n., 28 n.
contact not necessary, 19, 21, 23.
what is not, 19, 20, 24.
mere words without submission to restraint not an, 19, 20.
partial obstruction not an, 24.
shadowing by detectives, 23 n.

IMPUTED NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE).

INEVITABLE ACCIDENT (see ACCIDENT).

INFANT,
liable for torts, 96, 97 n.
negligence of, 88, 88 n., 90, 93, 93 n.

INJUNCTION,
maliciously obtaining, 648 n.

INSANE PERSON,
liable for torts, 29, 29 n., 662 n.

INSULT,
gestures no assault, 11, 11 n., 12 n.
looks no assault, 11, 11 n., 12 n.
words no assault, 11, 11 n., 12 n.
action lies for written or spoken, by statute in Va., 657 n.
insulting statements not fair comment, 786 n.

INVITEE (see OCCUPIER OF PREMISES).

JUDGE,
statements by, absolutely privileged, 695.

JUDICIAL PROCEEDINGS,
statements in, absolutely privileged, 695, 697, 703, 707, 709 n.
reports of, conditionally privileged, 714, 716, 720, 731, 761.
reports of quasi, conditionally privileged, 729.

JURY,
malice in action for malicious prosecution a question for, 638.
malice in fact in defamation a question for, 662, 752, 763, 790.

JUSTICE OF THE PEACE,
advice of, when probable cause for prosecution, 635 n.

LABORERS, STATUTE OF,
actress not a servant within, 879.

LAND (see MALICIOUS USE OF ONE’S OWN LAND; DANGEROUS USE OF LAND).

LANDLORD AND TENANT,
liability of landlord for defect in premises, 220, 222 n.

LAST CLEAR CHANCE (see CONTRIBUTORY NEGLIGENCE).

LEAVE AND LICENSE,
no bar to action for injury received in prize fight, 18.
procuring abortion with plaintiff’s consent, 19 n.
injury in course of illegal charivari party, 18 n.

LEGISLATIVE PROCEEDINGS,
statements in absolutely privileged, 720.
reports of conditionally privileged, 720.

LIABILITY WITHOUT FAULT (see ANIMALS; DANGEROUS USE OF LAND),
constitutionality of legislation imposing, 482 n., 494 n.

LIBEL (see DEFAMATION).

LIQUIDATION,
malicious proceedings in, against company, 645 n.

LORD CAMPBELL’S ACT, 372 n.

LUNACY,
malicious proceedings in, 645 n.

LUNATIC (see INSANE PERSON).

MALICIOUS CONSPIRACY (see CONSPIRACY).

MALICIOUS EXHIBITING OF ARTICLES OF THE PEACE,
actionable, 625.

MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER,
enticing servant to leave master, 864.
debauching servant of another, 866.
inducing breach of contract, 874, 884, 887.
inducing breach of contract by laborers, 884, 887, 979 n.
suborning witness to commit perjury, 710.
helping debtor to make assignment in fraud of creditors, 846.
slander of title, 813, 816.
disparagement of goods, 819.
fraudulent imitation of trade-mark, 827.
use of envelopes marked telegram leading patrons of telegraph company
to believe latter imposing on them, 837 n.
fraudulent statement that plaintiff had gone out of business, 854,
859.
fraudulent sending out of plaintiff’s business card under injurious
circumstances, 831.
false though not defamatory imputation upon plaintiff, 812.
slander of plaintiff’s wife resulting in injury to business, 837 n.
fraudulently inducing testator to revoke bequest to plaintiff, 847,
849.
false statement to mortgagee procuring foreclosure in breach of
gratuitous promise to mortgagor, 849 n.
fraudulently procuring third person to sell to defendant in breach of
oral contract with plaintiff within statute of frauds, 852 n.
fraudulently altering and defacing will leaving legacy to plaintiff,
852.
loosening horse’s shoe to discredit blacksmith, 829.
inducing servant at will to leave master, 868.
frightening wild fowl from resorting to plaintiff’s land, 935, 937.
threats of physical injury to plaintiff’s customers, 863, 864, 897,
935, 968.
threats of pecuniary loss to plaintiff’s customers, 952, 996.
threat of physical injury to plaintiff’s workmen, 863, 978 n.
threat of vexatious suits against customers, 863 n.
annoyance of workmen resorting to plaintiff, 979 n.
threat to sell adjoining property to colored family, 923 n.
threat by association of retail dealers to cease dealing with
manufacturer or wholesale dealer, 997 n.
threats, what may lawfully be threatened, 975, 975 n.
refusal to insure ship if plaintiff employed as master, 836 n.
sermon warning congregation against physician, 837 n.
interference with blind advertisement, 838.
inducing one not to contract with plaintiff, 906, 978, 989, 996, 998,
1004.
boycotting, 952, 987, 989 n., 997, 997 n., 998, 1004, 1012 n.
strike to strengthen union, 978, 988;
to gain control of labor market, 989 n.;
to bring pressure on third person, 997, 998, 1009;
to procure discharge of plaintiff as means towards better
conditions in shop, 998 n.;
to get rid of objectionable foreman, 998 n.
inducing employer to discharge employee because not a member of trade
union, 939, 978.
inducing employer to break contracts with laborers, 979 n.
“smashing” rates, 906, 913.
conspiracy, 910, 971.
inciting pauper to sue plaintiff, 651.

MALICIOUS INJURY TO PLAINTIFF BY TORT TO ANOTHER,
destruction of husband’s house by wife to injure insurer, 841.

MALICIOUS INSTITUTION OF CIVIL ACTION,
actionable, 650 n.
not actionable, 649.
voluntary abandonment of former action is failure, 629 n.
abandonment by way of compromise not failure, 629 n.
attachment vacated evidence of want of probable cause, 634 n.
by instigating another to sue, 651.
in name of another, 655.
prosecution of unfounded claim for patent, 645 n.

MALICIOUS PROCEEDINGS,
in bankruptcy, 644.
in lunacy, 645 n.
for removal of officer, 645 n.
levy on execution under fraudulent judgment, 648 n.
procurement of execution of search warrant, 648 n.
attachment, 646.
arrest on civil process, 648 n.
holding to bail, 648 n.
replevin, 648 n.
garnishment, 648 n.
procurement of injunction, 648 n.
excessive attachment, 652 n.
for winding up company, 645 n.

MALICIOUS PROSECUTION,
_Institution of Criminal Proceedings_, 620.
application for warrant but none issued, 624 n.
arrest without warrant, no further prosecution, 624 n.
search warrant issued, no arrest or seizure of property, 624 n.
warrant issued, plaintiff leaves jurisdiction to avoid arrest, 620.
_Nature of Criminal Charge_, 624.
prosecution under unconstitutional statute, 624 n.
prosecution in court without jurisdiction, 624 n.
_Failure of Prosecution_,
generally essential, 627.
when not necessary, 625.
_nolle prosequi_ is, 627.
indictment quashed is, when, 629 n.
striking from docket because in wrong court, when, 629 n.
_Abandonment of Prosecution_,
if voluntary equivalent to termination in defendant’s favor, 627.
by way of compromise not equivalent to termination in defendant’s
favor, 629 n.
otherwise where settlement obtained by duress, 630 n.
_Reasonable or Probable Cause_,
essential, 630.
definition of, 631 n.
a question for court, 632, 637.
conviction, though reversed, _prima facie_ evidence of, 632, 633 n.
conviction, though reversed, conclusive evidence of, 627.
commitment for grand jury, evidence of, 632, 633 n.
finding of indictment evidence of, 632, 633 n.
advice of counsel is, 634.
advice of justice of the peace, whether, 635 n.
advice of layman not, 635 n.
what must be stated to counsel, 636 n.
defendant’s belief in plaintiff’s innocence negatives, 639.
failure of prosecution, whether evidence of want of, 633 n., 641.
want of, not to be inferred from malice, 643 n.
if not, still no action for, if plaintiff was in fact guilty, 644.
_Malice_,
meaning of, 637, 638 n., 642.
question of fact for jury, 637.
not a necessary inference from want of probable cause, 636, 641,
643 n.
of no moment, if probable cause exists, 630.
_Damage_, 624.