594. ... “The litigants are members of two rival associations of workingmen, registered under the Trade Unions Act of 1871.”... Lord Watson, [1898] A. C., p. 90. “It is not a dispute between employers and employed,—between capital and labor,—but rather one between the members of one trade union and of another trade union.”... Lord Ashbourne, ibid. p. 109. “Each party had the financial support of their union.” Lord Macnaghten, p. 147.

595. As to the terms of the ironworkers’ employment, see Lord Watson, pp. 90, 99, and Lord Herschell, p. 130.

596. See Lord Macnaghten, p. 146.

597. It was held, both by Kennedy, J., and by the Court of Appeal, that Jackson and Knight were not liable. Upon this branch of the case there was no appeal to the House of Lords.

598. See Lord Macnaghten, p. 148.

599. The statement here given is compiled from extracts recited in the opinions of Lord Shand, p. 162, Lord Halsbury, p. 82, and Lord Macnaghten, p. 149.

600. See Veeder, Advisory Opinions of the Judges in England, 13 Harv. Law Rev. 358.

601. ... “There is no ground for even a suggestion that the defendant’s acts were due to competition in trade or employment. There could be no competition between the two sets of men in the circumstances under which they were then working, the one at wood, the other at iron only; and even if they were competing, the plaintiffs were working well within their right.” Hawkins, J., p. 23. “Now, although according to the principles of the Mogul Case the action of Allen might have been justified on the principles of trade competition, if it had been confined to the time when the respondents were doing ironwork, and were therefore acting in competition with the boilermakers, it appears to me that as soon as he overstepped those limits, and induced their employers to dismiss them by way of punishment, his action was without just cause or excuse, and, consequently, malicious within the legal meaning of that word.” Cave, J., p. 37. “This action was not an effort, by competition, to enable the boilermakers to get the work instead, but to punish the plaintiffs by causing the employment of other shipwrights in their room.” Lord Ashbourne, p. 111.

602. German Civil Code, §§ 226, 826.

226. The exercise of a right is not permitted, when its sole object is to injure another.

826. Whoever intentionally inflicts damage upon another in a morally reprehensible manner is bound to compensate the other for the damage.

See also Digest, xxxix, 3, 1, § 12, xxxix, 3, 2, § 9; L. 17, 55; Domat, Civil Law (Cushing’s ed.) § 158; Erskine, Institutes of the Law of Scotland, Bk. II, tit. 1, § 2; Bell, Principles of the Law of Scotland, § 966; Planiol, Traité Elémentaire de droit civil, (4 ed.), II, §§ 870–72; Windscheid, Lehrbuch des Pandektenrechts, I, § 121; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411; Walton, Motive as an Element in Torts in the Common and in the Civil Law, 22 Harvard Law Rev. 349.

603. Some opinions are omitted. None are given in full. Arguments omitted.

604. Read by Lord Davey in Lord Lindley’s absence.

605. [1895] 2 Q. B. 22, 23; [1898] A. C. 3.

606. [1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147–150, Lord Macnaghten; pp. 161, 165, Lord Shand; p. 175, Lord Davey; p. 178, Lord James.

607. England, Trade Disputes Act, 1906, 6 Ed. 7, c. 47.

1.—The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875:—

“An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.”

2.—(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.

(2) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from “attending at or near” to the end of the section.

3.—An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

4.—(1) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.

(2) Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.

5.—(1) This Act may be cited as the Trade Disputes Act, 1906, and the Trade Union Acts, 1871 and 1876, and this Act may be cited together as the Trade Union Acts, 1871 to 1906.

(2) In this Act the expression “trade union” has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union.

(3) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression “trade dispute” means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labor, of any person, and the expression “workmen” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned Act, the words “between employers and workmen” shall be repealed.

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 345, 351, note 3.

608. The statement has been abridged.

609. “The defendant associations had the absolute right to threaten to do that which they had the right to do.” Parker, C. J., in National Protective Association v. Cumming, 170 New York, 315, p. 329.

“It will be said that a man has the absolute right to threaten to do that which he has a right to do. Granted that what you may absolutely do you may absolutely threaten to do (give unqualified notice of your intention to do). But it does not follow that you may conditionally threaten to do it. The right to absolutely refuse to work and the right to conditionally refuse do not, as against third persons, i. e., persons other than the employer, stand to each other in the relation of the greater to the less. The former does not necessarily include the latter. They are distinct from each other; and the latter may sometimes be the more important and the more dangerous right of the two.” 20 Harvard Law Rev., p. 273.

“The right to quit an employment which is terminable at will may include a right to give absolute and unqualified notice of intention to leave.”

“It may also include, as against an employer, a right to annex any possible condition to an offer to work or to a threat to refrain from working. By ‘right as against an employer’ we mean that an employer could not maintain an action against a laborer for annexing such conditions. The employer is not legally damaged by such an offer. He is not bound to accept it. As between B and C, the person with whom B is directly dealing, it may be true that ‘the right to refuse to deal involves the right to name any terms which one pleases, and to refuse to deal except on these terms.’ C cannot maintain an action against B for insisting on unreasonable terms. But the terms or conditions annexed to an offer may relate to the offeree’s relations to a third person, and [if the offeree accepts and performs the conditions] that may raise a question whether such third person has any ground of complaint.”

“We think that the right to work or not to work does not include, as against third persons, the right to annex any possible condition to an offer to work or to a notice of intention to refrain from work. Suppose that B offers to work for C on condition that C commits a battery on A. Could B effectively deny that he instigated the commission of the battery? Could B escape liability to A on the ground that he was merely stating to C the conditions on which he was willing to exercise his right to labor or not to labor?” 20 Harvard Law Rev. 270–271.

The contrary view is open to several objections:—

“1. It assumes that, if certain conduct of B does not violate any legal right of C, it cannot infringe a legal right of A.

“2. It overlooks the distinction between unconditionally exercising a right, and offering to exercise it (or to refrain from exercising it) on condition that the offeree shall take action which is intended to produce (and does produce) damage to a third person.

“3. It assumes that one who intentionally instigates a second person to inflict damage on a third person can escape responsibility by putting the instigation in the form of a conditional offer to exercise, or to refrain from exercising, a right which he had against the second person.” 20 Harvard Law Rev. 269.

610. “In many of the cases the element of combination or conspiracy is found. If the act be lawful, the combination or conspiracy to commit it does not make the act unlawful; if it be unlawful, the combination to commit it may render its commission easier and may aggravate the injury; but it does not change the character of the act. The fact of combination is treated by the courts as of great evidentiary value in deciding the question of coercion or duress.” Burke, J., in Sumwalt Ice Co. v. Knickerbocker Ice Co., 114 Md. 403, 414.

“The gist of a civil action of this sort is not the conspiracy but the deceit or fraud causing damage to the plaintiff, the combination being charged merely for the purpose of fixing joint liability on the defendants.” Rugg, J., in New England Foundation Co. v. Reed, 209 Mass. 556.

See also Romer, L. J., in Giblan v. National Amalgamated Union, [1903] 2 K. B. 600, 619–620. But compare Henshaw, J., in Vallejo Ferry Co. v. Solano Club, 165 Cal. 255.

611. Intimidation. See Springhead Co. v. Riley, 6 Eq. 551 (intimidating placards); Southern R. Co. v. Machinists Union, 111 Fed. 49; Knudsen v. Benn, 123 Fed. 636; Atchison R. Co. v. Gee, 139 Fed. 582; Pope Motor Co. v. Keegan, 150 Fed. 148 (collection of large crowd); Allis Chalmers Co. v. Iron Molders’ Union, 150 Fed. 155 (crowds); Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union, 159 Fed. 500; Kolley v. Robinson, (C. C. A.) 187 Fed. 415; Fortney v. Carter, (C. C. A.) 203 Fed. 454; Bittner v. West Virginia Coal Co., (C. C. A.) 214 Fed. 716; Goldberg v. Stablemen’s Union, 149 Cal. 429; Underhill v. Murphy, 117 Ky. 640; Sherry v. Perkins, 147 Mass. 212 (intimidating banner); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133 (crowd); Baltic Mining Co. v. Judge, 177 Mich. 632; Minnesota Stove Co. v. Cavanaugh, 131 Minn. 458; Jones v. Maher, 62 Misc. 388; O’Neil v. Behanna, 182 Pa. St. 236; Jensen v. Cooks’ Union, 39 Wash. 531; Commercial Printing Co. v. Tacoma Typographical Union, 85 Wash. 234.

Picketing, see American Steel Co. v. Wire Drawers’ Union, 90 Fed. 608; Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45; Sona v. Aluminum Castings Co., (C. C. A.) 214 Fed. 936; Karges Furniture Co. v. Woodworkers’ Union, 165 Ind. 421; Beck v. Teamsters’ Union, 118 Mich. 497.

Annoyance of workers resorting to plaintiff. Union P. R. Co. v. Ruef, 120 Fed. 102; Frank v. Herold, 63 N. J. Eq. 443; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219.

Inducing employer to break contracts. Read v. Friendly Society, [1902] 2 K. B. 732; Jonas v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Flaccus v. Smith, 199 Pa. St. 128.

Inducing employees to break contract. Hardie Tynes Mfg. Co. v. Cruse, 189 Ala. 66; Folsom v. Lewis, 208 Mass. 336; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

612. This section is as follows: “No person shall, by intimidation or force, prevent or seek to prevent a person from entering into or continuing in the employment of any person or corporation.”

613. In accord with the prevailing opinion, see Tunstall v. Stearns Coal Co., 192 Fed. 808; Folsom v. Lewis, 208 Mass. 336; Burnham v. Dowd, 217 Mass. 351; Fairbanks v. McDonald, 219 Mass. 291; Cornellier v. Haverhill Mfr’s Assn, 221 Mass. 554; Blanchard v. Newark District Council, 77 N. J. Law, 389; Ruddy v. United Journeyman Plumbers, 79 N. J. Law, 467, 81 N. J. Law, 574. Compare Giblan v. National Amalgamated Union, [1903] 2 K. B. 600; National Fire Proofing Co. v. Mason Builders’ Ass’n, 169 Fed. 259; Gill Engraving Co. v. Doerr, 214 Fed. 111.

Contra, Kemp v. Division No. 241, 255 Ill. 213.

Purpose of gaining control of the labor market. New England Cement Co. v. McGivern, 218 Mass. 198; Jacobs v. Cohen, 183 N. Y. 207; McCord v. Thompson Starrett Co., 129 App. Div. 130; Schwarcz v. International Union, 68 Misc. 528; Newton v. Erickson, 70 Misc. 291.

Compare Reynolds v. Davis, 198 Mass. 294.

614. See majority and minority opinions in the later case of Willcut & Sons Co. v. Driscoll, 200 Mass. 110, also Booth v. Burgess, 72 N. J. Eq. 181. Compare Rhodes v. Musicians’ Union, 37 R. I. 281.

615. The following condensed statement is taken from 20 Harvard Law Review, 445–447.

616. Loring, J., p. 583.

617. Ibid.

618. Only a part of the opinion is given (pp. 587–88).

619. Bossert v. Dhuy, 166 App. Div. 261, 221 N. Y. 342 Accord. But see Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

In Bohn Mfg. Co. v. Hollis, 54 Minn. 223, “a large number of retail lumber dealers formed a voluntary association, by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers not dealers, at any point where a member of the association was carrying on a retail yard; and they provided in their by-laws that, whenever any wholesale dealer or manufacturer made any such sale, the secretary should notify all the members of the fact. The plaintiff, a wholesaler, having made such a sale directly to a consumer, the secretary threatened to send notice of the fact, as provided in the by-laws, to all the members of the association.” (This statement is copied from 17 Green Bag, 218. See also statement by Professor Lewis, 44 Am. L. Reg. N. S. 469.) The court refused to grant an injunction against sending out the notice. Here the retail dealers did not threaten to cease dealing with any one except their competitors, i. e., wholesale dealers who should attempt to sell directly to consumers. They used no lever but their own conduct. They did not threaten to induce outsiders to refrain from working for, or selling goods to, the wholesalers. And even as to their own conduct, they did not threaten to abstain from dealings with wholesalers in all matters, but only in the purchase of lumber. Much less did they threaten to abstain from dealing with persons who dealt with the wholesalers. In a subsequent case the same court said: “It is to be noted that the defendants in the Bohn case had similar legitimate interests to protect which were menaced by the practice of wholesale dealers in selling lumber to contractors and consumers; and that the defendants’ efforts to induce parties not to deal with offending wholesale dealers were limited to the members of the association having similar interests to conserve, and that there was no agreement or combination or attempt to induce other persons not members of the association to withhold their patronage from such wholesale dealers.” Ertz v. Produce Exchange Co., 79 Minn. 140, 144. See also Jackson v. Stanfield, 137 Ind. 592; Brown v. Jacobs Pharmacy Co., 115 Ga. 429; and other cases collected by Professor Wyman, 17 Green Bag, 210, 222.

Strike unless plaintiff is discharged, as a means toward better conditions in the shop, see Minasian v. Osborne, 210 Mass. 250.

Strike to get rid of personally objectionable foreman. De Minico v. Craig, 207 Mass. 593.

620. Statement abridged. Portions of opinion omitted.

621. Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Baldwin v. Escanaba Dealers’ Ass’n, 165 Mich. 98; Fink v. Butchers’ Union, 84 N. J. Eq. 638; McCormick v. Local Unions, 32 Ohio Cir. Ct. R. 165 Accord.

Compare Ex parte Heffron, 179 Mo. App. 639.

622. Bossert v. Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. v. Bricklayers’ Union, 92 Conn. 161 Accord. See Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45. Also Wigmore, The Boycott as Ground for Damages, 21 American Law Rev. 509, and Interference with Social Relations, 21 American Law Rev. 764.