Burke v. Fay

BLAND, P. J. (after stating the facts)) — “Any combination, no matter how lawful its origin nor hoAV praiseworthy its objects, which turns aside for the moment from its legitimate pursuits and agrees upon a course of conduct for the sole purpose of inflicting injury upon a third party, becomes at that instant a civil conspiracy, and all damages sustained may be recovered.” [1 Eddy on Combinations, sec. 480.] Carew v. Rutherford, 106 Mass. 1, was an action brought by plaintiff against members of the Journeymen Freestone Cutters’ Association, a labor union, to recover back money Avhich had been paid under an apprehension that the defendants would induce his labor [694] ers to quit his employment and that he would not be able to supply their places with others so as to carry on his business and fill his contracts. At page 13, the court said: “We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his employment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal, if not a criminal, conspiracy, that the acts done under it are illegal; and that the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable to pay all the damage thus done to him. It is a species of annoyance and extortion which the common law has never tolerated.” In March v. Bricklayers’ & Plasterers’ Union, 4 L. R. A. (N. S.) 1198, March was fined $100 for violating an alleged agreement not to sell or deliver bricks to masons classed as “unfair” by the Union. There was no such agreement,, but under an apprehension that a threat by defendant,, to stop the erection of a building for which he was furnishing the brick, would be carried out, plaintiff paid the fine of $100. At pages 1201-2, the court said: “The consequences which would flow to the plaintiff from it, if taken, were such as might well excite in him a reasonable apprehension of serious injury. To the pressure thus brought to bear upon him he yielded and paid the sum exacted. There is nothing in the record to relieve this picture. It does not improve it to say that the defendants were seeking to enforce a penalty or to collect damages assessed. They had no right to inflict a penalty upon or assess' damages against this man, who owed them no duty through asso [695] ciation in the membership of the union, by contract or otherwise. The plaintiff owed them nothing. To overawe him into the payment of something by meajas of threats of injury in their power to inflict and of such a character as to naturally arouse a reasonable apprehension of serious consequences to him, in the event of his refusal, was an act of the purest extortion, using that word in its widest meaning, by means of threats and intimidation, and in the plainest violation of our statute (Gen. Stat. 1902, section 1296), our decisions, and the universally accepted principles of the common law.” If the $200 was assessed by the two Unions as a fine against plaintiff, or if it was demanded for the purpose of reimbursing the Unions for making an investigation of plaintiff’s contracts, then, according to the above authorities, the Unions stepped aside for the moment from their legitimate pursuits for the sole purpose of inflicting injury upon plaintiff, and were guilty of a civil conspiracy; and if plaintiff was coerced, to pay the $200 in order to continue his business, he is entitled to recover the damages resulting from the unlawful act and may recover of any one and from two or more of the persons who confederated together to injure him. [1 Eddy on Combinations, sec. 468.] But there is no evidence in the record showing, or tending to show, that plaintiff was compelled to pay the $200, or abandon the performance of his contracts; from aught that appears from the evidence, he might have employed other plumbers to do his work. Those in his employ had the right to quit work at any time and for any cause, or without cause, and plaintiff is not entitled to recover merely because they did quit on the call of their unions. He was not damaged unless the $200 was coerced from him, and he was not coerced, if he could have employed other plumbers to do his work. He made no effort to employ others, but submitted to the demand of the unions and [696] paid tbe $200, rather than be put to the inconvenience and delay of hiring other workmen, and herein is. his case to be distinguished from the case of Carew v. Rutherford and March v. Bricklayers’ & Plasterers’ Union, supra, in both of which the plaintiffs were compelled to comply with the demands made upon them by the unions in order to carry out their contracts and prevent serious loss. I do not think there is any substantial evidence that the $200 was paid under duress, and that it should be held the payment was voluntary, but my associates are of a different opinion and think there was sufficient evidence to send that issue to the jury. Wherefore, the judgment is reversed and the cause remanded.