justifiable fair competition. The case stands pretty well alone, but affords a striking illustration of what would almost universally be regarded as morally unfair, and ought to be reprobated in law. Here the plaintiff had for many years carried on a profitable trade as barber in a certain village. The defendant, a banker and a man of great wealth and of personal and financial influence in the community, established a barber shop in the village, employed a barber to carry on the business, and used his influence to attract customers away from the plaintiff's shop, all for the sole purpose of injuring the plaintiff. The plaintiff's business was thereby ruined. The court held that defendant's conduct was unjustifiable, saying: "To divert to one's self the customers of a business rival by the offer of goods at lower prices is in general a legitimate mode of serving one's own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to himself, and for the sole purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort.

9946

23. Same subject-Cases of Lewis v. Huie-Hodge Lumber Co. and Graham v. St. Charles Street Railway. The contrast between a case of interference with another's business justified on the ground of

46 Compare the interesting article by the late Professor J. B. Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, in 18 Harvard Law Review, 411.

48

47

competition and a case not so justified is well brought out in two decisions, both rendered in Louisiana: Lewis v. Huie-Hodge Lumber Co., and Graham v. St. Charles Street Railway. In the Lewis case the defendant was a corporation engaged in the manufacture of lumber, employing a large number of men in its business. In connection therewith it conducted a general mercantile store for the purpose of selling merchandise to its employees and to the public. Plaintiff opened a store of like character. The defendant corporation notified its employees that if they traded with the plaintiff they would be discharged. In the Graham case the manager of defendant street railway company notified the railway employees that they would be discharged if they continued to deal with the plaintiff, who conducted a grocery store. The object of the railway manager was to advance the interests of one of his tenants who conducted a store in competition with Graham.

In holding the defendants' conduct justified in the Lewis case, the court said: "The defendant company was not acting wantonly and maliciously to injure the plaintiff without any reason or cause moving it in its own interest in the premises. The animus which led the defendant to take the course it did was not to injure the plaintiff, but to protect and safeguard its own business interest." In the Graham case, in holding that the interference with the grocer's business did constitute an unjustified and actionable wrong, the court said: "In so doing the

47 121 La. 658, 46 So. 685.

48 47 La. Ann. 214, 16 So. 806.

defendants would not only control their own will, action, and conduct, but forcibly control and change, from pure motives of malice, the choice and will of others, through fear of non-employment or discharge. This will and power of choice, both the plaintiff and the parties themselves are entitled to have left free, and not coerced in order to simply work the former damage and injury."

24. Same subject-Professor Wyman's statement of the rule of unfair competition.-"We have, therefore, these differing views of the nature of the action for unfair competition, opposed in a fundamental way. By what may be called the earlier theory, it is said that any man can do in trade whatever he pleases to get trade away from another, provided he does nothing illegal in itself. But, by what is obviously the current philosophy of the matter, the beginning is made at the other end, by saying that every man engaged in business has a right to pursue his calling freely, and that consequently any interference with this business of his by another must be justified. What may, therefore, be carried forward into the subsequent discussion of various unfair practices in our complicated modern commerce, is the idea that to compete as one wills is not an absolute right in our law. On the contrary, competition is only a thing permitted by the State when its operation is for the best interests of established society, forbidden if it is carried on under circumstances prejudicial to the social order." 49

25. Malice. A great amount of confusion has been 49 Wyman, Control of the Market, p. 55.

caused in the decisions in labor dispute cases and analogous cases by uncertainty as to the meaning and import of the word malice. Courts have reached opposite conclusions on almost identical facts because they have used this word in different senses. The term is used in certain torts, particularly malicious prosecution, in its popular sense; but where it is held to be an ingredient in most torts, including those now under consideration, it is used correctly only in a strictly legal or technical sense. The distinction between the two meanings was pointed out in 1825 by Bayley, J.: "Malice in common acceptation of the term means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.

9950

26. Same subject-Lord Bowen's view of the meaning and import of malice.-Bowen, L. J., in the Mogul case, points out the distinction: "We were invited to accept the position that an action will lie, if a man maliciously and wrongfully conducts himself so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms 'maliciously,' 'wrongfully,' and 'injure' are words all of which have accurate meanings well-known to law, but which also have a popular and less precise signification, into which it is necessary to see that the argument does not imperceptibly slide. An intent to 'injure' in strictness means more than an intent to harm. It connotes an attempt to do wrongful harm. 'Maliciously,' in like manner, means and implies an intention to do an act

50 Bromage v. Prosser, 4 B. & C. 247 (Eng.).

which is wrongful to the detriment of another. The term 'wrongful' imports in its term the infringement of some right."51

27. Same subject-Lord Watson's statement as to effect of malice.-Lord Watson has said in effect that malice in its popular sense cannot be the ground of a civil action, in the following oft-quoted sentence: "No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious."52 But the same judge has expressed the principle better in the case of Allen v. Flood: "But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due."5

28. Same subject General result as to meaning and import of malice.-Practically all the English and American judges agree in the view that malice, in its popular sense, that is, considered as a bad motive, is not sufficient to lay the basis for the class of torts of which we are now speaking. All the error and confusion of thought comes from not discriminating between the two meanings. For there is general agreement in all the well-considered cases that malice in the legal sense, as explained by Bayley, J., or by Bowen, L. J., enters into the very definition of the actionable tort of interference with business or employment. Lord Watson himself, in the passage last cited, says: "A wrongful act done knowingly

51 Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598 (Eng.), at p. 612. 52 Mayor of Bradford v. Pickles (1895), A. C. 587 (Eng.), at p. 598. 53 Allen v. Flood (1898), A. C. 1 (Eng.), at p. 92.