Heitkemper v. Central Labor Council

JOHNS, J. Through the candor and frankness of opposing counsel, the vital issues in this case are clearly defined. Under the plaintiffs’ theory, the defendants entered into a conspiracy to compel the plaintiffs to recognize their union, and to that end placed pickets in front of their places of business to drive and keep customers away, by reason of which the plaintiffs suffered material damage. The defendants admit the picketing, but claim that it was peaceable and lawful; that it was done for the protection and furtherance of their own interests; and that they had a right to do it, even though the plaintiffs were — 10 — damaged as a result. What was done by the pickets is told by the following testimony of Isaac Aronson, one of the plaintiffs-: “The young ladies wore sashes or banners across their shoulder, with inscriptions reading on them, and the people coming in the store, they used various phrases which we have taken pains at that time to have exactly some of the words as they said; we took down a stenographic report. They talked in a very loud tone of voice. The store is 37 by 15; you could hear it all over the store; and we were compelled to keep the doors closed hot summer' days, because that was so annoying to customers purchasing goods in the store. The phrases they used are as follows: ‘Do. not patronize this shop; that man is unfair to union labor.’ ‘Bring your watch to a watchmaker who is making more than $10 a week.’ ‘If you are a friend of the laboring man or woman, you will not patronize that shop.’ ‘This shop is unfair to all organized labor.’ ‘Do not patronize that store; it is unfair.’ ‘Patronize a shop that pays a living wage.’ ‘All we ask for is six days a week and eight hours a day and a living.wage.’ ‘Do not patronize this shop; patronize a union shop—a union shop pays living wages.’ ‘Do not buy anything of them; you are liable to die of heart failure.’ . ‘Buy your watches of Staples; he pays union wages.’ ‘Patronize a union shop; a union shop employs white help, not colored help, and pays a living wage. ’ ‘ This man employs colored help; he is an enemy to labor.’ ” The origin of the trouble, according to the plaintiffs’ view, is given in the following testimony of the same witness: “Some time between August áth and August 15th,-1 couldn’t say the exact.date, Mr. Anderson wanted an interview with me. “Q. Mr. Anderson, president of the Central Labor Council? — 11 — “A. Yes. It was agreeable to me, and Mr. Anderson came to my office;, we talked the matter over in an amiable way. I found Mr. Anderson to be very gentlemanly, and we did come to an agreement; that is, waiving the matter of a contract, waiving the matter of closed shop, the only thing they would insist on was the matter of wages, which we paid, which was agreeable, and the matter of hours which we keep, which was agreeable; and we agreed upon, Mr. Anderson and I, that I will call a meeting of the jewelers in controversy, and Mr. Anderson would send a delegate from the jewelers’ trade union, and Mr. Anderson should be present, and verbally we will state to them we will pay them the wages, and we will give them the hours, and that should constitute the contract, and Mr. Anderson agreed with me. Next day Mr. Anderson came to me and said, ‘Mr. Aron-son, did you arrange for that meeting?’ I said, ‘Yes; the meeting is arranged for 10 o’clock.’ He said,.‘You will also have to state in there that you are recognizing the union.’ I said, ‘Mr. Anderson, it can’t be done, because I have called the jewelers together on these points only, in reference to hours, wages, and overtime, and not about recognizing the union.’ In fact, I took out a memorandum that I wrote down in his presence. I said, ‘Here is the memorandum I made out; I cannot make a fool out of myself by calling a meeting.’ In fact, I stated to them on what terms we are going to agree upon, and I told Mr. Anderson, ‘It is up to you to put the pickets back right now.’ I was rather peeved .about it; I considered I have been made a fool of at that time; and they put the pickets back. That is the time the pickets were off one day and a half. “Q. The whole trouble on the part of your jewelers’ association is you will not recognize the union, and will not do business with the union as a union ? “A. 'That appears to be the trouble, although we conceded we would talk with their representative; but we didn’t consider a contract was necessary, because all that was demanded in the original contract was already paid before.” — 12 — Frank Heitkemper, one of the plaintiffs, called as a witness by the court, testified as follows: “We were approached about the early part of July, and were asked by some.of the people prominent in labor circles if there would be any objection to their coming in and taking up the matter with our employees concerning whether or not they would belong to the union. I told them I had no objection. I had in mind that possibly to join the union would make conditions mutually better for us, as well as the workmen. I paid no attention to it, but I knew some negotiations were going on toward forming the union. I didn’t care, as I told them; we never asked a man whether he belonged to any lodge or church, or any organization; that we hired them as free American citizens, and never would question what they wanted to do. About the middle of July we received through the mail a union agreement. I glanced at it and dismissed [it] from my mind, because it had some conditions in there that were absolutely impossible for us to comply with. As far as wages were concerned, as I said, we paid as high as $45 at that time. Watchmakers were scarce, and it wasn’t a question of wages. * # We passed it up. About the 23d or 24th of July a man came in who introduced himself as president of the jewelry workers’ union, and wanted to know why we hadn’t signed this up and sent it in. I discussed the matter with him, and told him I couldn’t and square myself with my own conscience, sign it. He told me then, after a little discussion, he said it as sort of an ultimatum, that, if we didn’t sign that by 5 o’clock Saturday, at 11 o’clock Monday morning they would .call our watchmakers out. I didn’t think onr watchmakers would go out, to tell the truth. None of them were in position to be idle, I didn’t think. At 11 o’clock Monday morning they laid down their tools and walked out. I considered it a joke for a while. After two or three days of this I realized I hadn’t taken the thing up with them, except in an ordinary way, hadn’t stated my position to them, and I asked them to come in and — 13 — talk it over. We met with five of the men, I discussed the matter with them. I asked them, ‘Is there any dissatisfaction with you people in regard to wages?’ They said, ‘No; we all feel we are paid in proportion to what we can earn.’ I said, ‘Is there any question in regard to hours?’ They said, ‘No; we are satisfied with the hours; we realize you have always been in the front rank when it came to granting good conditions; we feel when there is a concerted motion to put in shorter hours you will be one of the first to go into it.’ I said, ‘Is there anything personal, any reason why you don’t want to work for me?’ They said, ‘No.’ They said they never worked with a man they liked better than me. I said, ‘What is the trouble?’ ‘Well, we belong to the union; we can’t work here until you sign this union agreement.’ ” The theory of the defendants is explained by the testimony of Harry Anderson, president of Central Labor Council, thus: “Some time before July 1st, the jewelers’ workers’ organization sent out to each of the jobbing houses and the manufacturing jewelers, and different jewelry stores, a copy of their new agreement, which provided a $36 minimum, an eight-hour day, and certain other regulations, as well as closed shop. The jewelry workers did not get any response. They were young, and didn’t know how to go about meeting the various proprietors to find out whether this was acceptable or not. Finally they decided the thing to do was to call a strike.” The witness also testified to certain negotiations, as follows: “So Mr. Hartwick and myself called on Mr. Heitkemper. They told us practically the same thing; felling us it was mighty difficult to get these jewelers into a meeting. At that time I asked Mr. Heitkemper if he thought if a letter was sent to them from the council requesting them to attend a meeting with offi — 14 — cers of the council, that it would do any good. He said he didn’t know, we might try. So a letter was sent out. We received no reply from 'that letter. After that the jewelry workers decided at a meeting that the thing to do was to call a strike, to see if they couldn’t force the issue that way. They did call a strike. They came into the Central Labor Council, requesting these various places be placed on the unfair list. * * “Mr. Friedlander and Mr. Aronson both told me so far as they were concerned they were perfectly willing to send in such a letter to the Central Labor Council. I suggested to them many times that if this were done it would avoid all this trouble, and that we could settle the whole matter on that basis. * * “Q. What reason did they give for refusing to put their agreement in writing. They were willing to make such a statement; why wouldn’t they put it in writing? “A. I felt all the time the objection was principally because they didn’t care to recognize the jewelry workers as an organization. “Q. Would they give any reason for refusing to sign such an agreement? “A. Their reasons were, they had held a meeting and decided not to sign it. “Q. They didn’t tell you why they wouldn’t sign? Are they working the eight-hour shift now in the. stores of these plaintiffs? “A. That I couldn’t say. “Q. Do you know what scale of wages these plaintiffs were paying before an organization was made of the jewelry workers’ union? “A. At this meeting held in our office it developed some of them were paying more than the minimum asked by the jewelry workers, some less. “Q. They were all working nine hours at that time? “A. I don’t remember as to that. * * “Q. What does your ordinary form of contract provide with respect to closed or open shop? — 15 — “A. It provides for practically a closed shop. It provides that jewelry store proprietors or manufacturers, whoever they may be, may employ in the open market regardless of union affiliations, but at the end of thirty days they must make application for membership in the union or be dismissed. * * “Q. I take it from the statements on the stand, and yourself as well, that they felt there was a distinction between writing a letter and signing the formal contract. One was a direct recognition of the union as a body, and that, they would be contracting with the union when they didn’t desire to do that, when they were willing to give the minimum wage asked and observe the eight-hour day, but wanted the power left to employ whom they pleased and discharge whom they pleased, and without discrimination; that was the distinction? “A. Yes.” There is no real dispute between the plaintiffs and the defendants as to wages, hours of labor, treatment, or conditions of employment. Chapter 346, Laws 1919, entitled: “An act declaring labor unions to be lawful organizations; restricting the powers of any court of this state in the granting of injunctions; declaring the labor of a human being not a commodity or article of commerce; prohibiting the indictment, prosecution or trial of any person or combination of persons for any act in furtherance of the bettering of his or their condition,- unless such act should be forbidden by law if done by an individual,” —provides in part as follows: “Section 1. It shall be lawful for working men and women to organize themselves into, or carry on labor unions for the purpose of lessening the hours of labor or increasing the wages or bettering the conditions of the members of such organizations; or carrying out their legitimate purposes as freely as they could do if acting singly. — 16 — “Section 2. No restraining order or injunction shall be granted by any court of this state, or any judge or judges thereof in any case between an employer and employee, or between employer and employees or between employees or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right of the party making the application, for which injury there is no adequate remedy at law. * * “Section 3. No restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment or from ceasing to perform any work or labor; or from recommending, advising or persuading others by peaceful means so. to do; or from attending at any place where any person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any such person to abstain from working; or from ceasing to patronize any party to such dispute; or from recommending, advising or persuading others by peaceful means so to do. * # “Section 5. No person shall be indicted, prosecuted or tried in any court of this state for entering into or carrying on any arrangement, agreement, or combination between themselves made with a view of lessening the number of hours of labor or increasing wages or bettering the conditions of working men and women, or for any act done in pursuance thereof, unless such act is in itself forbidden by law if done by a single individual.” Prior to the organization of defendant Local Union No. 41, known as a trade union, there was no jewelry workers ’ union in the City of Portland, and there was no controversy between the plaintiffs and their employees. After this union was formed, it sent circular letters to all of the jewelers in Portland, including the plaintiffs, requesting a conference with a view — 17 — of inducing the plaintiffs to conduct their respective places of business under the rules and regulations of the union as to wages, hours of labor, apprentices, right of inspection, settlement of grievances, pay for overtime, and in general to conform to all of its standard requirements. The plaintiffs received, but did not answer, this letter. In a short time the union sent out another request, calling attention to the first, and asking for a prompt reply, to which the plaintiffs again paid no attention. This was soon followed by a meeting of the members of defendant Local Union No. 41, in which they voted almost unanimously to declare a strike, and advised the Central Labor Council of their decision. This latter organization then placed the plaintiffs on the unfair list, and at once the defendants, acting through Local Union No. 41, commenced the picketing complained of. It appears from the record that only two of the plaintiffs were actually subjected to the picketing, but it is agreed that the defendants intend to picket all of the plaintiffs unless enjoined. After this demonstration was commenced, there were certain negotiations between the plaintiffs and the defendants with a view of trying to settle and adjust their differences. A tentative agreement was made between the plaintiff Aronson and Harry Anderson as president of the defendant Central Labor Council, to the effect,-as Mr. Aronson testifies, that “the only thing they did insist on was the matter of wages which we paid, which was agreeable, and the matter of hours which we keep, which was agreeable”; that a meeting of all interested parties should be called, at which the plaintiffs should verbally state, “We will pay them the wages and we will give them the hours,” and that this should constitute the con — 18 — tract between them. On the following day, according to Aronson, Anderson inquired if he had arranged for the meeting. The witness told him that it had been called, whereupon— “He said, ‘You will have to state in there that you will recognize the union.’ I said ‘Mr. Anderson, it •can’t be done, because I have called the jewelers together on these points only, with reference to hours, wages, and overtime, and not about recognizing the union.’ In fact, I took out a memorandum that I wrote down in his presence, and I said, ‘Here is the memorandum that I made out.’ And I told Mr. Anderson, ‘It is up to you to put the pickets back right now.’ And they put the pickets back.” The substance of this testimony is not disputed. The record shows that as a result of different conferences between Anderson as president of Central Labor Council and Aronson on behalf of plaintiffs, there was a tentative agreement reached, by which the plaintiffs were to adopt the union scale of wages and conform to the union hours; that a meeting was called for the purpose of ratifying that arrangement; that it was understood by all parties that it would be approved; and that the pickets were removed pending the meeting. After the notice of the meeting had been sent out, Anderson called upon Aronson and notified him, “You will have to state in there that you will recognize the union,” which the latter declined to do for want of authority. For such reason the meeting was never held and the picketing was resumed. There is nothing in the testimony to show that, there was ever any dispute about wages, hours of labor, or conditions of employment. Through the original conferences all of such matters had been amicably adjusted, subject only to formal approval; — 19 — but the agreement was never actually ratified because the defendants insisted thereafter that the plaintiffs recognize the union, which the latter refused to consider. As we construe the record, the recognition of the union was the only real dispute between the parties. The defendants rely upon Chapter 346, Laws 1919, the material provisions of which are quoted above. Section 2 thereof says that no restraining order or injunction shall be granted “between an employer and employee, or between employer and employees, or between employees or between persons employed and those seeking employment, involving or growing-out of a dispute concerning terms or conditions of employment.” This is not a controversy between employer and employee, or between individuals employed and those seeking employment; nor does it arise from, or grow out of a dispute as to terms or conditions of, employment. Neither does Section 3 of the act apply. This is not a case of terminating employment, ceasing to perform work or labor, or recommending, advising or persuading others to abstain from working, or attending the plaintiffs’ places of business for any of the objects mentioned in the enactment. Here there is no dispute between employers and employees, and the pickets were not stationed in front of plaintiffs’ stores to persuade anyone to cease from working, or for the purpose of obtaining or communicating information for the use and benefit of the union. The words, “any party to such dispute,” refer and relate to controversies between employer and employee, to the termination of employment, and to the “persuading any such person to abstain from working.” — 20 — 1. We hold that under the facts in this case, Chapter 346, Laws 1919, does not embrace or legalize picketing a man’s place of business and destroying his patronage where the only question involved is the recognition of the union. 2. The complaint is founded upon conspiracy, and on that point the alleged and admitted facts bring the case within the purview of Alaska S. S. Co. v. International Longshoremen’s Assn. of Puget Sound et al. (D. C.), 236 Fed. 964, which holds: “A conspiracy is a combination of two or more persons by Concerted action to do an unlawful thing, or to do a lawful thing, in an unlawful manner. “No formal agreement is necessary to a conspiracy, a tacit understanding being sufficient; and it is not essential that each conspirator have knowledge of the details, the means to be used, or that the agreement be enforceable. “The acts of agents and employees in furtherance of a conspiracy are the acts of the principal. “Where a picket around an employer’s place of business is established by union strikers, the picket i-s the agent of the union, and efforts to dissuade others from accepting employment offered by the former employer should go no further than peaceable persuasions and inducements.”, In the instant case, soon after the second circular letter was mailed, for failure to reply, the defendant Local Union No. 41 met and called a strike, notifying the Central Labor Council, which placed the plaintiffs on the unfair list, and pickets were at once stationed about the places of business of two of the plaintiffs. Although it is true that the defendant Local Union No. 41 employed and paid them, yet it was the result of united and concerted action. Begardless of any statute bearing on the subject, every fair-minded man must concede that labor has — 21 — a right to organize and to use any and all lawful means to further and protect its own interests, and that in the absence of contract any individual, with or without cause, has a right to terminate his employment at any time and without notice. Organized labor is organized brain and muscle. It has all the legal rights of any other association, and in this state they are specifically recognized by Section 1 of Chapter 346, Laws 1919. It must also be conceded that through its organization much good has been accomplished; that there has been a marked and material improvement in labor conditions, in particular as to wages, hours of working, environment, and treatment, and that it has resulted in closer and more intimate relations between employer and employee. Much legislation has been enacted enforcing and recognizing such rights; some of it has been cheerfully done on principle and as a matter of justice, and some of it is the result of long and bitter contest between employer and employee, whereby the public in general, although not directly a party, has been made to realize that it has a vital interest in all of such questions. But under the existing facts the question is squarely presented, whether or not, in the absence of a statute conferring such power, any organization has the right, even peacefully, to picket a man’s store, drive away his patrons, materially injure his business, and continue to do so, for the sole purpose of compelling him to recognize the union. In the instant ease it is but fair to say that no large crowds were assembled; that the sidewalks were not seriously obstructed to passers-by; that but little offensive or abusive language was used, and no violence; and that at the inception one of the pickets was removed by the defendants on account of the — 22 — language she used. The pickets wore banners inscribed “Unfair to Organized Labor,” and stood at’, near, and in front of the entrances of the plaintiffs’ places of business. Their efforts were largely directed, and more or less confined, to dissuading and preventing intending patrons from going into the stores and doing business with the plaintiffs. While the pickets were not boisterous, there is testimony tending to show that their presence provoked argument and discussion. The evidence is conclusive that the picketing was effective; that there was a material reduction in the volume of business of the plaintiffs who were subjected to it; and that they sustained a substantial injury. It commenced daily with the opening of the stores in the morning and continued during business hours. There was no interference by the police and no arrests were made. While all that is true, the record shows that the relation of employer and employee did not exist, and that the strike was called, plaintiffs were placed on the unfair list, and their stores were picketed, without any further \notice or warning. When the evidence is analyzed, it clearly appears that the primary purpose of the l picketing'was to compel recognition of the union, and I that it was the defendants’ intent to make it con-i tinuous. Even where the relation of employer and employee is shown to exist, and there is a dispute as to wages or hours of labor, there is a sharp conflict in the authorities as to whether there is such a thing as peaceful picketing. 24 Cyc. 834, 836, says: “While it has been held that the mere stationing persons near the premises of another for the mere purpose of observing and obtaining information, for the purpose of conveying information to persons seeking or willing to receive the same, or for the pur — 23 — pose of using orderly and peaceful persuasion with those willing to listen, does not in itself constitute intimidation if done in a peaceful manner, the rule has been repeatedly laid down that the keeping of patrols in front of or about the premises of the employer, accompanied by violence or any manner of coercion to prevent others from entering into or remaining in his service, will be enjoined. “The doctrine that there may be a moral intimidation which is illegal, announced by the Supreme Court of Massachusetts, was among the first judicial steps taken in this country toward overturning the rule permitting peaceable picketing laid down in the first clause of this paragraph, and was a forerunner of the later rule, that there can be no such thing as peaceable picketing, and consequently that all picketing is illegal. Picketing will be enjoined as a continuing injury to business notwithstanding it may be punishable as a crime, and the right to injunction against it has been based upon the ground that the aggrieved person is entitled to protection of his ‘probable expectancy’ which is defined as the right to enjoy a free and natural condition of the labor market;” 16 R. C. L., page 454, states that the courts which “condemn picketing per se are in a decided minority.” Martin on the Modern Law of Labor Unions, page 233, Section 169, says: “Although, as was shown, there are some decisions which hold that all picketing is unlawful, and it has been said that from the very nature of things peaceful picketing is of rare occurrence, and ‘very much of an illusion,’ yet the view taken by the majority of decisions, and which is best supported by reason, is that picketing, if not conducted in such numbers as will of itself amount to intimidation, and when .confined to the seeking of information, such as the number and names and places of residence of those at work, or seeking work, on the premises against which the strike is in operation, and to the use of peaceful — 24 — argument and entreaty for the purpose of procuring such workmen to support the strike by quitting work, or by not accepting work, is not unlawful, and will furnish no ground for injunction, or an action at law for damages.” 12 C. J., page 597, Section 140, states the rule thus: “According to the better view, picketing,'if not conducted in such numbers as will of itself amount to intimidation, and when confined to the seeking of information, such as the number, names, and places of residence of those at work, or seeking work, on the premises against which a strike is in operation, and the use of peaceful argument and entreaty for the purpose of inducing such workmen to support the strike by quitting work or by not accepting work, is not unlawful, and furnishes no ground for an action for damages.” But distinguished counsel have not cited, and after diligent search we have not found, any authority which would justify or sustain picketing, even though it be peaceable, where the controversy is not between employer and employee, and there is no dispute growing out of employment, but the purpose of the picketing is to induce the employer to recognize the union. As we analyze the authorities, the legal right peacefully to picket is largely dependent upon the purpose and intent, and the method and manner in which the picketing is done. 3. Assuming that the plaintiffs sustained material injury, the defendants vigorously contend that it was the result of picketing which was both peaceful and lawful, and that the damages were only incidental, for which plaintiffs would not have any right of action; in other words, that it would be damnum absque injuria. Under another state of facts that legal principle would be sound, and sustained by the authorities; — 25 — but in applying the rule both the facts and the motive are important. We find the following in 12 C. J., page 584, Section 103: “So long as the object of the combination is to further its own fair interest or advantage, and not the injury of another, its members are not liable for any injury which is merely incidental. On the other hand, such combinations are actionable conspiracies, although the acts when done by an individual would not subject him to civil liability, when the acts are done with malice; that is, with the intention to injure another without just cause or excuse, or where the natural and necessary consequences of the act, although done to benefit the conspirators, is the prejudice of the public of the oppression of individuals. Intentionally to do that which is calculated, in the ordinary course of events, to damage another in his property or trade is, when done without just cause or excuse, what the law calls an actionable wrong. Just cause or excuse exists only where the injury inflicted is the means to some end legitimately desired and incidental thereto, and is not the result of a specific intent and immediate purpose of injury to others that benefit may ultimately come to the members of the combination. It is entirely wanting when the immediate purpose of the combination is to inflict injury on others, and the benefit, if any, to result to the combination, is indirect and remote. An agreement entered into for the primary purpose of injuring another is not rendered legal by the fact that it may incidentally benefit the parties." 5 R. C. L., page 1074, Section 15, says: "Here it may be said that a labor union or a combination of laborers for the purpose of effecting a strike for a justifiable purpose is not a conspiracy unless it contemplates the use of unlawful means. On the other hand, a combination to strike for a purpose not recognized as justifiable is a conspiracy.” The opinion in Hitchman Coal & Coke Co. v. Mitchell et al., 245 U. S. 239 (62 L. Ed. 260, Ann. Cas. — 26 — 1918B, 461, L. R. A. 1918C, 497, 38 Sup. Ct. Rep. 65), reads thus: “In any aspect of the matter, it cannot be said that defendants were pursuing their object by lawful means. The question of their intentions—of their bona fides—cannot be ignored. It enters into the question of malice. As Bowen, L. J., justly said, in the Mogul Steamship Case, 23 Q. B. Div. 613: ‘Intentionally to do that which is calculated, in the ordinary course of events, to damage, and which does, in fact, damage, another in that other person’s property or trade, is actionable if done without just cause or excuse.’ * * “Another fundamental error in defendants’ position consists in the assumption that all measures that may be resorted to are lawful if they are ‘peaceable’—that is, if they stop short of physical violence, or coercion through fear of it. In our opinion, any violation of plaintiff’s legal rights contrived by defendants for the purpose of inflicting damage, or having that as its necessary effect, is as plainly inhibited by the law as if it involved a breach of the peace. A combination to procure concerted breaches of contract by plaintiff’s employees constitutes such a violation. * * “Upon all facts, we are constrained to hold that the purpose entertained by defendants to bring about a strike at plaintiff’s mine in order to compel plaintiff, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose.” Although that opinion was written in December, 1917, the original suit was commenced on October 24, 1907; hence, the decision was founded upon the common law. The facts there are different, but the legal principles announced and the reasons therefor are squarely in point here. In Plant v. Woods, 176 Mass. 492 (57 N. E. 1011, 79 Am. St. Rep. 30, 51 L. R. A. 339), it is said: “But in many cases the lawfulness of an act which causes damage to another may depend upon whether — 27 — the act is for justifiable cause, and this justification may be found sometimes in the circumstances under which it is done, irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motives combined.” In Connors v. Connolly et al., 86 Conn. 641 (86 Atl. 600, 45 L. R. A. (N. S.) 564), the opinion reads as follows: “The law recognizes that human activities are not to be so circumscribed that one may not, in his efforts to advance his own interests, either himself or in co-operation with others, do anything from which another may suffer. * * But it does recognize that certain bounds must be set to the use of means, beyond which he and his associates may not be permitted to go, if a decent regard for the rights of others is to be preserved and the public welfare conserved. It recognizes the peculiar necessity for the establishment of such bounds where the action is that of individuals in combination, by reason of the great power which may result from such combination, and the temptation to use that power in disregard of the rights of persons outside of them. * * “One of the bounds thus fixed, where, as here, concerted action by combinations is concerned, is that the harm inflicted be reasonably referable to the alleged object of lawful gain or advantage; that the means employed be adopted in good faith for the attainment of that object; and that their employment be not prompted by personal ill will, desire to injure, or express malice of any sort. * * ‘ ‘ ‘ The common law has long recognized, as part of the boasted liberty of citizens, the right of every man to engage freely in such lawful business or occupation as he himself may choose, free from hindrance or obstruction by his fellowmen, saving such as may result from the exercise of equal or superior rights on their part.’ ” This question was decided in Folsom v. Lewis, 208 Mass. 336 (94 N. E. 316, 35 L. R. A. (N. S.) 787). In — 28 — that case the master found “that one of the objects of the strike was to compel the employers to recognize the union, and to enter into an agreement with the union as such, to employ none but union men, or nonunion men provided they should join the union within thirty days, and have a certificate of the right to work until the time that they had joined the union, that the strike was a strike for the closed shop,” and that in such particulars it was not for a lawful purpose. In its opinion the court said: “There is nothing in the case to indicate that there was anything in the condition of the business, or in the relations of the workmen to their employers, that made such a requirement of any importance to these employees, in reference to their profit or comfort. * * The master was undoubtedly right in finding that the purpose of the defendants and the real object of the strike were not so much to obtain certain slight advantages referred to in the proposed agreement as to compel the employers, by inflicting this injury upon them, to submit to an attempt to obtain for the union a complete monopoly of the labor market in this kind of business, by forcing all laborers who wished to work to join the union, and by forcing all employers to agree not to employ laborers, except upon' such terms as they could make with the combination that should control all labor in this business. This has been held to go beyond the limit of justifiable competition. Conduct directly affecting an employer to his detriment, by interference with his business, is not justifiable in law, unless it is of a kind and for a purpose that has a direct relation to benefits that the laborers are trying to obtain.” Authorities sustaining this decision are cited in the L. R. A. notes. Under the facts shown to exist in the instant case, we hold that Chapter 346, Laws 1919, does not apply; that the relation. of employer and employee did not exi — 29 — st; that there was no real or vital dispute about the scale of wages, hours of labor, or pay for overtime; and that the primary purpose of calling the strike, placing the plaintiffs on the unfair list, and picketing their places of business was to obtain the recognition of the defendant Local Union No. 41. Under such a state of facts, the damages are not incidental to the legal right of the defendants. It appears from the record that the defendants are insolvent, and that the plaintiffs have sustained material injury to their business, which will be continuous if the defendants are permitted to picket, and for which the plaintiffs would not have a complete and adequate remedy at law even in a multiplicity of actions. The decree of the Circuit Court is affirmed on the merits, but for the reason that this is in the nature of a test case, it is modified as to costs, which neither party shall recover in either court. Affirmed. Rehearing Denied. McBride, C. J., and Benson, Burnett and Harris, JJ., concur.