and free from intimidation, force, or duress. The right of a labor association to strike is no higher than the right of a non-union workman to take employment in place of the strikers. Under the assurance and shield of the Constitution and of the laws, the non-union laborer may go to and from his labor, and remain at his place of labor, in absolute security from unlawful molestations, and wherever such protection is not fully accorded, their execution, and not the laws themselves, is to be blamed. In this country a man's constitutional liberty means far more than his mere personal freedom. It means that, among other rights, his is the right freely to labor and to own the fruits of his toil. Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664. Any act of boycotting, therefore, which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by intimidation upon the physical fears, is unlawful.

(2) The inconvenience which the public may suffer by reason of a boycott lawfully conducted is in no sense a legal injury. But the public's rights are invaded the moment the means employed are such as are calculated to, and naturally do, incite to crowds, riots, and disturbances of the peace. A picket, in its very nature, tends to accomplish, and is designed to accomplish, these very things. It tends to, and is designed by physical intimidation to, deter other men from seeking employment in the places vacated by the strikers. It tends, and is designed, to drive business away from the boycotted place, not by the legitimate methods of persuasion, but by the illegitimate means of physical intimidation and fear. Crowds naturally collect; disturbances of the peace are always imminent and of frequent occurrence. Many peaceful citizens, men and women, are always deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to split hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual, peacefully endeavoring by persuasion to prevent customers from entering the boycotted place. The plain facts are always at variance with such refinements of reason. . . . The boycott having employed these means for this unquestioned purpose is illegal, and a Court will not seek by overniceties and refinements, to legalize the use of this unquestionably illegal instrument. . . . We concur: BEATTY, C. J.; LORIGAN, J.; MELVIN, J.

ANGELLOTTI and SLOSS, JJ. We concur in the judgment. The modification of the judgment is in line with the views announced in the Parkinson Case. So far as "picketing" is concerned, while we are not prepared to hold that there may not be acts coming within that term, as it is accepted and understood in labor disputes, that are entirely lawful, and should not be enjoined, we believe that, as to such "picketing" as is described in both findings and judgment in this case, the views expressed in the opinion of the Court are correct.

SHAW, J. I agree with all that is said by Justice HENSHAW in his opinion, except the part relating to the so-called "secondary boycott" and the attempt to draw a distinction between the compulsion of third persons caused by picketing and the compulsion of third persons produced by a boycott. My views concerning the "secondary boycott" are expressed in my dissenting opinion in Parkinson v. Building Trades Council (Cal.), 98 Pac. 1040. The means employed for the coercion or intimidation of a third person in a "secondary boycott" are unlawful whenever they are such as are calculated to, and actually do, destroy his free will, and cause him to act contrary to his own volition in his own business, to the detriment of the person toward whom the main boycott or strike is directed; in other words, whenever the means used constitute duress, menace,

or undue influence. Whether this coercion or compulsion comes from fear of physical violence, as in the case of picketing, or from fear of financial loss, as in the "secondary boycott," or from fear of any other infliction, is, in my opinion, immaterial, so long as the fear is sufficiently potent to control the action of those upon whom it is cast. I can see no logical or just reason for the distinction thus sought to be made. There is no such distinction in cases where contracts or wills are declared void, because procured by duress, menace, or undue influence. There should be none where actual injury is produced or threatened through such means acting upon third persons.

856. HUSKIE v. GRIFFIN. (1909. 75 N. H.-74 Atl. 595.) PEASLEE, J. . . . It is well established that the inherent right of every man to freely deal, or refuse to deal, with his fellowmen, is not to be destroyed or abridged by acts involving the elements of the common-law action for deceit. This is not denied. . . . Whether motive (when falsehood is absent) is a material element in these cases is a question upon which the authorities are not so fully agreed. That it is material, and that where malice, or a purpose to do the plaintiff injury, is the moving force to the commission of the act, a recovery may be had is the rule in many jurisdictions. . . . It is held that a statement of the truth, made for the sole purpose of damaging the plaintiff by causing a third party to refuse to further deal with the plaintiff, is actionable if damage ensues.

But beyond these issues of fraud and malicious injury lies one which has caused much of perplexity and conflicting adjudication. How far advantage may or may not lawfully be gained by appeal, persuasion, or threat of loss of future favor - whether those not involved in the initial contest may be dragged into it by these and kindred means are questions which Courts, jurists, and publicists have not found it easy to answer. Between the early view that a peaceful strike for higher wages was inherently wicked (King v. Journeymen Tailors of Cambridge, 8 Mod. 11; In re Journeymen Cordwainers, Yates Sel. Cas. 111, 277), and the theory that all honest and peaceful means are permissible (diss. op. Vegelahn v. Guntner [ante, No. 848]), there is room for every shade of opinion. "It will be seen that in the different Courts there is considerable variety and some conflict of opinion." Berry v. Donovan, 188 Mass. 353, 74 N. E. 603 [ante, No. 850]. . . . In many cases it has been decided that the common law governing criminal conspiracies offered a sufficient ground for holding the offenders liable civilly. Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, and authorities there reviewed. It was soon perceived, however, that the argument was unsound; and the theory that acts which might lawfully be done by one or any number of persons, acting singly, were unlawful when done by several acting by a concerted plan was abandoned in most jurisdictions. Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746; Toledo, etc. Ry. v. Company, (C. C.) 54 Fed. 730, 19 L. R. A. 387. Another ground taken was that there is in the concerted action of the many a coercive element which should be placed on a par with the use of force, or with the undue influence sometimes exercised over persons not fully capable of protecting themselves. . . . The reasoning by which this view has been supported not infrequently suggests the true solution of the difficulty. The conclusion has been reached by deciding what was or was not reasonable conduct under the circumstances of the case. The more recent authorities reason that, as the right to deal or not to deal with others is inherent in the idea of Anglo-Saxon liberty, prima facie a man can demand an open market;

and, since this is so, one who interferes with this free market must justify his acts or respond in damages. Thus far these authorities are uniform; but when they proceed to the determination of what amounts to a justification, they differ widely. The cause is not far to seek. The rule which they apply is that of reasonable conduct, yet they discuss and decide each case as though it involved only a question of law. In reality, the issue is largely one of fact, and the result is what would be expected. Judges are men, and their decisions upon complex facts must vary as those of juries might on the same facts. Calling one determination an opinion and the other a verdict does not alter human nature, nor make that uniform and certain which from its nature must remain variable and uncertain. While these cases go too far in what they decide as questions of law, yet the test they constantly declare they are applying is the true one. The standard is reasonable conduct under all the circumstances of the case. . . . The plaintiff was entitled to go to the jury upon all three grounds which have been considered: (1) Fraud, (2) malicious injury, and (3) unreasonable interference with the open market.1

1 [PROBLEMS:

The plaintiff's declaration alleged that W. had agreed to employ the plaintiff at a weekly wage and also to provide for her by will, and that the defendant by false and malicious statements as to the dangerous character of the plaintiff induced W. to discharge the plaintiff and to revoke the will in her favor. Is this demurrable? (1898, May v. Wood, 172 Mass. 11, 51 N. E. 191.)

The plaintiff was a delinquent debtor. The defendants were members of an association bound by rule to refuse to trade with a delinquent debtor of one of them except for cash. The defendants, acting under the rule, caused the plaintiff to be boycotted. Are they privileged? (1900, Hartnett v. Goddard, 176 Mass. 326, 57 N. E. 677.)

The defendant labor union persuaded M. to discharge the plaintiff from his employment at will, because the plaintiff was not a member of the union. Was this actionable? (1897, Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96.)

The defendants combined as manufacturers to refuse to sell to the plaintiff, a wholesaler, except at retail prices. The reason was that the plaintiff had refused to maintain the prices agreed upon in selling goods bought by him of the defendants. Was this actionable? (1903, Park & Sons Co. v. National Wholesale Druggists Ass'n, 171 N. Y. 1, 67 N. E. 137.)

The defendant, superintendent of a quarry, refused to let A have any stone from the quarry unless he discharged the plaintiff, his employee. Was this actionable? (1896, Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53.)

The defendants were granite manufacturers and their association passed a resolution not to do business with persons quarrying, cutting, or polishing granite, who did not join the association. A penalty of $50 for each breach of the rule was imposed. The plaintiff was a granite polisher, not a member of the association, and his business was practically destroyed, for no one gave him granite to polish. Was this actionable? (1899, Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607.)

The plaintiff was a member of the defendant union, but was in arrears for membership dues. The defendant, by threat of a strike, induced the plaintiff's employer to discharge him. Was this actionable? (1903, Giblan v. Union, 2 K. B. 600.)

The defendant was a labor union; the plaintiff was a manufacturer of casks. To coerce the plaintiff into ceasing to use certain hooping machines; the defendant instituted a boycott of the plaintiff's goods by circularizing his customers. Was this actionable? (1897, Hopkins v. Oxley Stave Co., C. C. A., 83 Fed. 912.)

The defendant was a ticket-scalper, and bought from railroad passengers unused personal tickets containing an agreement to use the ticket in person only, and then re-sold them for use by other persons. The plaintiff railroads, the sellers of the tickets, seek to restrain this. (Angle v. R. Co., 151 U. S. 1; 1897, Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. 65.)

The defendant was governor of a Soldier's Home, and ordered the pensioners not to patronize the plaintiff's saloon. Was this actionable? (1908, Rowan v. Butler, 171 Ind. 28, 85 N. E. 714.)

An association of retail and of wholesale druggists, seeking to maintain a maximum schedule of prices, agreed to refuse to sell to a retail druggist who refused to enter the combination, and warned others that they would also be boycotted if they sold to the plaintiff. Was this actionable? (Klingel v. Sharp, 104 Md. 218, 64 Atl. 1029.)

The defendant was a refiner of oil, and combined with a transportation company to refuse to purchase any oil of oil-producers who did not ship exclusively over the defendant's lines in tank cars. The object was to destroy the business of the plaintiff, a transportation company serving the same oilproducers. Was this actionable? (1901, West Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 40 S. E. 591.)

A party of white men drunkenly broke up a negro church festival. On complaint being made, the defendant terrorized the negroes and drove them into the woods. The negroes were the plaintiff's employees, and the defendant's act was done to coerce the plaintiff into inducing them to suppress their complaint. The plaintiff was unable to gather his crops for lack of help. Was this actionable? (1899, Kernan v. Humble, 51 La. An. 389, 25 So. 431.)

The foreman of the defendant railroad company threatened to discharge the employees if they dealt with the plaintiff for goods, and his business was injured thereby. Was this actionable? (1895, Graham v. St. Charles St. R. Co., 47 La. 16, 56, 18 So. 707.)

The plaintiff left the employ of the defendant railroad company, and sought employment with another railroad company. The latter applied to the defendant for information, and the defendant stated that the plaintiff was a labor agitator, which was true. The plaintiff was therefore refused employment. Has he an action? (1904, Wabash R. Co. v. Young, 162 Ind. 102, 69 N. E. 1003.)

The defendant insurance companies placed the plaintiff insurance agent on their black-list, which represented an agreement not to employ any person thereon. Was this actionable, if the plaintiff lost patronage thereby? (1901, Baker v. Metropolitan Life Ins. Co., — Ky. · 64 S. W. 913.)

The plaintiff was engaged in the illegal sale of liquor. The defendants combined to boycott him and to secure his prosecution. Was this actionable? (1902, Prude v. Sebastian, 107 La. 64, 31 So. 764.)

An agent of the defendant labor union presented the plaintiff with a contract to be signed; the contract contained a clause agreeing to employ only union labor. The plaintiff refused to sign it with that clause in it. The defendant then injured the plaintiff's business by circulars by pickets; the circulars made statements partly false. Was this actionable? (1898, Beck v. Union, 118 Mich. 497, 77 N. W. 13.)

The plaintiff, through N., an undertaker, employed S. for the services of a hearse and carriages at his child's funeral; S. and B. entered into agreement to take away hearse as soon as the funeral procession was ready, maliciously intending to humiliate the plaintiff, and S. and B. did so order the carriage away. B. pleaded there was the liverymen's association to which B. and S. belonged, and that N. the undertaker here was also a liveryman but a nonmember, and that the rules forbade furnishing vehicles to non-members. Was this actionable? (1900, Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003.)

The plaintiff, an employee of A, was injured during his employment, and

while still so employed brought suit against A for the injury. The defendant had insured A against such claims, and threatened A to cancel the policy unless A discharged the plaintiff; which A then did. Is the defendant liable? (1903, London Guarantee & Acc. Ins. Co. v. Horn, 206 Ill. 493, 69 N. E. 526.) The defendant, a passenger on a railroad, truthfully reported to the plaintiff's employer his misconduct as a conductor on the railroad, as observed by the defendant; in consequence of which the plaintiff was discharged. Is the defendant liable, assuming that he was moved by ill-will? (1904, Lancaster v. Hamburger, 70 Oh. 156, 71 N. E. 289.)

The plaintiff rented a house to S., an employee of the defendant. The defendant owned a quarry on an island, and had 600 employees. There were no other persons on the island. Between the plaintiff, a former employee of the defendant, and the defendant, a bitter quarrel had arisen. The defendant announced that no man who rented the plaintiff's house should remain in the defendant's employment. S. therefore left the plaintiff's house, and no others would hire it. Was this actionable? (1883, Heywood v. Tillson, 75 Me. 225.) The plaintiff was owner of "tramp" steamers, taking a cargo when and where they could find it. The defendants owned all the regular lines of steamers to Chinese ports. To drive the plaintiff out of the trade of carrying tea cargoes, the plaintiffs notified all shippers that a rebate of five per cent would be allowed to those who patronized exclusively the defendants' lines. This rebate was important as affecting the margin of profit to the shipper. The plaintiff lost the trade. Was this actionable? (1889, Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. D. 598.)

The plaintiff, an employee of the Union Depot Co., was injured by the negligence of the defendant, a railroad company. The defendant persuaded the Depot Co. not to receive the plaintiff again into employment unless he would sign a release to the defendant; which he declined to do. Is the defendant liable? (1907, Joyce v. Great Northern R. Co., 100 Minn. 225, 110 N. W. 975.) The defendant had agreed with other railroad companies not to employ any one who did not bring a 'clearance card" from his former railroad employer. The plaintiff, an employee of the defendant, left during the great strike of 1894, and then applied for employment to the T. & O. R. Co., and was refused for lack of a 'clearance card." It did not appear that the defendant had declined to give any "clearance card," but only that the card given was not a card that would suffice to secure re-employment. Was this actionable? (1900, McDonald v. Illinois C. R. Co., 187 Ill. 529, 58 N. E. 463.)

ESSAYS:

John H. Wigmore, "History of the Law regarding Interference with Social Relations; the Boycott as Ground for Damages." (A. L. R., XXI, 766.) Wm. L. Hodge, "Wrongful Interference by Third Parties with the Rights of Employers and Employed." (A. L. R., XXVIII, 47.)

Charles C. Allen, "Injunction and Organized Labor." (A. L. R., XXXVII, 828.)

James W. Bryan, "Injunctions against Strikes." (A. L. R., XL, 42.) James W. Bryan, "Injunctions against Boycotts and Similar Unlawful Acts." (A. L. R., XL, 196.)

McWilliams, Robert L., "Evolution of the Law relating to Boycotts." (A. L. R., XLI, 336.)

Ardemus Stewart, "The Legal Side of the Strike Question." (A. L. Reg., XLII, 609.)

William Draper Lewis, "Strikes and Courts of Equity." (A. L. Reg., XLVI, 1.) Francis B. Bracken, "Trade Organizations for the Collection of Debts Due Members by Means of Boycott." (A. L. Reg., XLVIII, 691.)

William Draper Lewis, "Some Leading English Cases on Trade and Labor Disputes." (A. L. Reg., LI, 125.)