The Supreme Court of Oregon has ruled that the statute of that State, which authorizes a parent to maintain an action for the seduction of a daughter, though the latter be not living at home and there be no loss of service, has entirely changed the character of the action; and that the parent's action will be defeated, if the defendant shows that the daughter voluntarily submitted to illegal intercourse, and was not overcome by the defendant's artifice, promise or persuasion.54 § 3. TORTS AGAINST THE MASTER. Harming or Enticing the Servant. Fitzherbert's statement that “a man shall have an action of trespass for taking of his apprentice, or for taking of his servant," 55 is preceded and followed by an enumeration of various injuries to property for which trespass would lie. His view, that a wrongful interruption of the relation of master and servant is an interference with the property right of the master, has never been questioned by the courts.56 One who takes or entices a servant from his master, without justifiable cause, or who wrongfully injures him so that he is disabled from rendering service, commits an actionable wrong against the master; the wrong consisting not in the act itself, but in the consequent loss to the master.57 Fitzherbert also notes 58 a "writ of trespass against those who lie near the plaintiff's house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof," so that plaintiff loses "the profits of his land" and “his 123 (1846); Comer v. Taylor, 82 Mo. 341 (1884). Patterson v. Hayden, 17 Or. 238, 21 Pac. 129, 3 L. R. A. 529, 11 Am. S. R. 822 (1889). Natura Brevium, 91 I. 56 Grinnell v. Wells, 7 M. & G. 1033, 1041, 14 L. J. C. P. 19 (1844). 57 Robert Mary's Case, 9 Coke, 111b, 113a (1613); Jones v. Blocker, 43 Ga. 331 (1871). "The master has purchased for a valuable consideration the services of his do mestics; "Ames v. Union Ry. Co., 117 Mass. 541, 19 Am. R. 426 (1875); Apprentice injured by defendant's negligence; Bixby v. Dunlop, 56 N. H. 456, 22 Am. R. 475 (1876); Haskins v. Royster, 70 N. C. 601, 16 Am. R. 780 (1874); Huff v. Walkins, 15 S. C. 82, 40 Am. R. 680 (1880). 58 Natura Brevium, 87 N. See Garret v. Taylor, Croke Jac. 567 (1621), where the servants were threatened with mayhem. service of the same men and servants." Commenting on this writ, a learned writer has said: "It seems, therefore, that picketing,' so soon as it exceeds the bounds of persuasion and becomes physical intimidation, is a trespass at common law against the employer." 59 Such is the view generally entertained in this country.60 If the damage threatened by this intimidation is such as cannot be adequately remedied in a common-law action, equity will enjoin the intimidators, although their acts may be in violation of criminal law.61 Whether the moral, as distinguishable from the physical intimidation of servants is an actionable wrong to the master, is a subject upon which the authorities are divided, as we have seen in a former section.62 Torts Against the Servant by Wrongfully Influencing the Master. Undoubtedly the servant has no cause of action in tort against one who beats or kills the master, although the assault or death may result in pecuniary harm to the servant. In the language of Blackstone, he hath no property in the master." And yet, the common law justifies the servant in defending his master against an assault, thus recognizing his interest in the master. 64 63 Recently, the question has often arisen, whether the servant has an action in tort against those who wrongfully influence the master to discharge him, or to refuse to give him employment, which but for such wrongful influence he would have obtained. When the conduct of such persons in influencing the master is a violation of the criminal law,65 or when it takes the form of a conspiracy to 59 Pollock on Torts (6th Ed.), 230, note k. 60 Supra, 71. Kernan V. Humble, 51 La. Ann. 389, 25 So. 421 (1899); Beck v. Ry., etc., Union, 118 Mich. 497, 77 N. W. 13, 74 Am. S. R. 421, 42 L. R. A. 803 (1893). 61 Consolidated Steel Co. v. Murray, 80 Fed. 811 (1897); Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106, 52 Am. S. R. 622 (1895); O'Neil v. Behanna, 182 Pa. 236, 37 At. 843, 61 Am. St. R. 702, 38 L. R. A. 382 (1897). 62 Supra, 72. Vegelahn v. Gunt ner, 167 Mass. 92, 44 N. E. 1077, 57 Am. S. R. 543, 35 L. R. A. 722 (1896); Allen v. Flood (1898), A. C. 1, 67 L. J. Q. B. 119. 033 Commentaries, 143. 64 v. Fakenham, Y. B. 9 Ed. IV, f. 48, pl. 4 (1470); Leward v. Basely, 1 Ld. Raym. 62 (1695). 65 Old Dominion Steamship Co. v. McKenna, 18 Abb. N. C. 262, 24 Blatch. 244, 30 Fed. 48 (1887); Casey v. Cincinnati Typo. Union, 45 Fed. 135, 12 L. R. A. 193, with note (1891); Quinn V. Leathem (1901), A. C. 495, 70 L. J. Q. B. 76; 66 accomplish a result which no one of the wrongdoers could effect alone, and results in actual harm to the servant, he can maintain a tort action for damages in most jurisdictions. If, however, the conduct of the defendants is not positively illegal, and does not exceed the limits of fair competition, it does not amount to a tort, even against the servant who is actually harmed thereby, and whom the defendants actually intended to harm.67 Whether the moral intimidation of masters or employers exceeds the limits of fair competition is a point upon which not only different courts, but different members of the same court, have disagreed.68 4. CONSPIRACY AS A TORT. Conspiracy Without Injury. The cases, which were cited in the notes to the last section, contain much discussion of the controverted question, whether conspiracy is a separate tort. Some of the judicial opinions answer this question in the negative. Conspiracy, according to the authors of these opinions, is never the gravamen of the action. They declare that unless the acts, which the conspirators combined to do, would be tortious if done by one Curran v. Galen, 152 N. Y. 33, 46 6 Quinn v. Leathem (1901), A. C. 495, 70 L. J. Q. B. 76; Giblan v. Nat. Amalgamated Union (1903), 2 K. B. 600, 72 L. J. K. B. 907; Lucke v. Clothing Cutter's Co., 77 Md. 396, 26 At. 505, 39 Am. S. R. 421, 19 L. R. A. 408 (1893). 67 Allen v. Flood (1898), A. C. 1, 67 L. J. Q. B. 119; Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. 310 (1895); National Protec. Assoc. v. Cummings, 170 N. Y. 315, 63 N. E. 639, 88 Am. S. R. 648, 58 L. R. A. 135 (1902); Raycroft v. Tayntor, 68 Vt. 219, 35 At. 53, 54 Am. S. R. 882, 33 L. R. A. 225 (1896). 6s See cases in last two notes, and Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 11 Am. S. R. 367 (1887); London Guar. Co. v. Horn, 101 III. App. 355 (1902), affd. 206 Ill. 493, 69 N. E. 526 (1904); Perkins v. Pendleton, 90 Me. 166, 38 At. 96, 60 Am. S. R. 252 (1897). In the last cited case, it is declared, that inducing the master to discharge or not to employ a servant, by persuasion or argument however whimsical or absurd, or by threat to do what the defendant has a right to do, is not a tort towards the servant, though the defendant's motives are malicious; but to intimadate the master into discharging the servant, or withholding employment, by fraud or by unlawful threats, is an actionable wrong. of them, they do not become tortious by reason of the conspiracy; that damage to the plaintiff is the gist of the action.69 It is undoubtedly true that a mere conspiracy to injure another is not actionable as a tort. Injury must ensue, or a tort action will not lie. But when one sustains actual harm as the result of concerted action on the part of others, and the harm is such as could not have been inflicted by any of the parties acting singly, it would seem that the distinctive element of the tort is the conspiracy rather than the damage. Damage is an essential element in malicious. prosecution, in deceit and in many cases of slander; but no one contends that such fact warrants the assertion that there is no such tort, as malicious prosecution, or deceit, or defamation by slanderous words which are not actionable per se. 46 Concert or Combination. The essence of conspiracy," to quote from a distinguished jurist, "so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded." 70 Parker v. Huntington, 2 Gray (68 Mass.), 124, 66 Am. Dec. 455 (1854); Hutchins v. Hutchins, 7 Hill (N. Y.), 107 (1845); Van Horn v. Van Horn, 52 N. J. L. 285, 20 At. 485, 10 L. R. A. 184 (1890); 56 N. J. L. 318, 28 At. 669 (1893); Porter v. Mack, 50 W. Va. 581, 40 S. E. 459, 1901. In the last cited case, it is said: "Owing to its rare character, the law regarding this kind of action has not been well defined, and the decisions of the courts have produced some confusion in regard thereto. The principal authorities maintain that the common law action of conspiracy is obsolete, and that there has been substituted therefor an action on the case in the nature of a conspiracy. That the allegation of conspiracy is mere matter of aggravation, and need not be proven, except to fix the liability of several defendants; and does not change the nature of the action from one purely on the case, subject to all the settled rules of such action." 70 Dwight, C., in Place v. Minster, 65 N. Y. 89, 95 (1875). In Bishop on Non-Contract Law, § 362, it is said: "The term 'conspiracy' is in our books oftener misapplied than used correctly. In the just meaning of the word, the title is a considerable one in the criminal law; in our civil jurisprudence it is narrow, yet it exists and is important. It signifies in the true and narrow sense, a wrongful combination of persons to do an act or acts, which when done have brought to another an injury of a sort not admitting of being accomplished alone." Examples of such a tort are afforded by Griffith v. Ogle, 1 Binney (Pa), 172 (1806), holding distinctly that damage is not the That such a concert or combination "differs widely from an invasion of civil rights by a single individual cannot be doubted." "1 "It may be punished criminally by indictment, or civilly by an action on the case in the nature of a conspiracy, if damage has been occasioned to the person against whom it is directed. It may consist of an unlawful combination to carry out an object not in itself unlawful by unlawful means. The essential elements, whether of a criminal or of an actionable conspiracy, are the same, though to sustain an action special damage must be proved." 72 "The number and compact give weight and cause danger." 73 The true rule applicable to conspiracies against servants has been well stated as follows: "Every man has a right to employ his talents, industry and capital as he pleases, free from the dictation gist of the action; and Wilde v. McKee, 111 Pa. 335, 2 At. 108, 56 Am. R. 271 (188). 71 "Lord Macnaghten, in Quinn v. Leathem (1901), A. C. 495, 511. Cf. Lord Lindley's statement on p. 539: "But numbers may annoy and coerce where one may not." In Arthur v. Oakes, 63 Fed. 310, at p. 321, Harlan, J., says: "It is one thing for a single individual, or for several individuals, each acting upon his own responsibility and not in co-operation with others, to form the purpose of inflicting actual injury upon the property or rights of others. It is quite a different thing, in the eye of the law, for many persons to combine or conspire together with the intent, not simply of asserting their rights or of accomplishing lawful ends by peaceable methods, but of employing their united energies to injure others or the public." Amalgamated Union (1903), 2 K. B. 600, 621-624. Both of these cases approve of the decision in Gregory v. Duke of Brunswick, 6 M. & G. 205, 6 Scott. N. R. 809, 1 C. & K. 24 (1843), that a conspiracy to hiss another off the stage, and so injure him in his trade or calling, was illegal and actionable. It has been said that there was no actual decision to the above effect, but Lord Chancellor Halsbury has pointed out that the report of the case, in 6 Scott, N. R. 809, 822, shows that such decision was made. See (1901) A. C. p. 503. Lord Macnaghten referred to the case, as an authority for the proposition that "a conspiracy to injure, resulting in damage, gives rise to a civil liability." It is also treated as an authority for that proposition by Lord Bowen in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 614 (1889), cited approvingly in Allen v. Flood (1898), 1, at p. 74. 73 Mulcahy v. Reg., L. R. 3 H. L. 306, 317 (1868). |