(orally). This is an action 1o recover damages for a libel. The jury found a verdict in favor of plaintiff for §4,700. The court at the trial, in the admission of evidence and in its- charge to the jury, adhered closely to the views it expressed in overruling the demurrer to plaintiff's amended complaint. Chiatovich v. Hanchett, 88 Fed. 873. If any error occurred at the trial in either of these respects, the source of error will be found in that opinion. The contention of defendants is that the published notice was not libelous; that the words used therein are not in any sense defamatory, and cannot by the use of any innuendo be so'construed; that by its publication no legal right of the plaintiff was invaded, and hence it is wholly immaterial what defendant’s motives may have been. If we assume these premises to be correct, the conclusions reached by them would necessarily follow, because, if the defendants had the legal right to publish the notice, and it could not be construed to be defamatory, it would make no difference whether their motives were good or bad, whether they acted with or without malice,
1. It is argued by the defendants that the court erred in its charge to the jury. The language of the court, which is claimed to be in conflict “with the weight of authority both in the United States and in England,” is as follows:
“The law guards with jealous care the rights, privileges, property, and business of every person, and any wrongful or illegal invasion of either is a violation of his legal rights. The lawful exercise of a legal right is, of course, not actionable. It is undoubtedly true that every individual has the absolute right to refuse any business relation with any particular person or persons. But this general principle must be confined and limited to the individual action of the men who assert that right. It does not follow that any individual having that right can, from his own ill will, malice, revenge, or other evil motive, influence other persons to do the same thing. Every person has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to he protected against competition, but he has a right to be free from malicious, wanton interference, disturbance, or annoyance. If a loss comes as a result of competition, or the exercise of a like right by others, it is damnum absque injuria (damage without injury). But if it comes from the mere wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing, and entitles him to recover damages for the malicious acts, -should you consider them to be so.”
“The case of Allen v. Flood is a forcible illustration > of the difficulty, even in judicial minds, to agree. That case was really a contest between two labor unions, — the Shipwrights’ Provident Union and a society of boiler makers and iron workers. The latter denied the right of shipwrights to do iron work upon vessels. The Ulcngall Company, for which both parties were at work, liad a contract to repair a ship. Forty iron workers and the plaintiffs, Flood and Taylor, shipwrights, were at work on the job. The iron workers learned that plaintiffs had just before worked on a similar job, where they did iron work, and called in Allen, their district delegate. Allen informed the agents of the Ulcngall Company that tlio iron workers would quit work unless they discharged plaintiffs. The company discharged plaintiffs, but in doing so violated no contract, as they had the right to discharge them at any time. They, however, had an expectancy of continued employment, and, but for the statement of Allen, would have been retained. Flood and Taylor sued Allen in tort. A recovery was had in the trial court. The case was taken to the court of appeals, and sustained by a unanimous decision. It was 1hen appealed to the. house of lords, and the opinions of eight judges were presented, six of whom were for sustaining the judgment. Of the nine lords, six were against the judgment, and three for it. Of the twenty-one judges and lords, thirteen held (lie action of Allen to be an unlawful interference with the freedom of labor, and actionable. This ease, therefore, to other courts than those of England, is mainly instructive in the learned and exhaustive opinions ren*684 dered. The majority of the lords appear to have based their opinion upon the fact that there was no conspiracy, that the Glengall Company had violated no contract in discharging plaintiffs, and that the iron workers had the right to leave, and threaten to leave, their employment for any reason whatever."
Counsel cite Heywood v. Tillson, 75 Me. 225, in support of their position, it does not sustain them. Like Allen v. Flood, supra, the facts in the case are so radically different that it cannot he considered as an authority against the correctness of the charge in the present case. The failure to observe the distinction between the different classes of cases leads to confusion, doubt, and uncertainty. Courts are constantly compelled, in searching for light in order to reach the ends of justice, to carefully examine the facts upon which the apparent differences in the opinions are founded; and quite often, in order to prevent any doubt or uncertainty as to their own views, they state both sides, and show the distinctions which exist in regard thereto. Thus, in Vegelahn v. Guntner, 167 Mass. 92, 98, 44 N. E. 1077, the court said’: “A combination among persons merely to regulate their own conduct is within allowable competition, and is lawful, although others may be indirectly affected thereby. But a combination to do injurious acts expressly directed to another, by way of intimidation or constraint, either of himself, or of persons employed or seeking to be employed by him, is outside of allowable competition, and is unlawful,” — and classed Heywood v. Tillson within the former class, and the case it had under consideration within the latter class. The case in hand does not, in my opinion, fall within the former class, and is not, therefore, in opposition, to Heywood v. Tillson. Counsel also cite and rely upon the principles announced in Orr v. Insurance Co., 12 La. Ann. 255. That case, viewed in the light of the facts there presented, is not in opposition to the views expressed in Chiatovich v. Hanchett, supra, and repeated in the charge of the court. The distinction between the facts in Orr v. Insurance Co. and a case like the present is clearly pointed out in Graham v. Railroad Co., 47 La. Ann. 215-217, 16 South. 806, which is an additional authority, if any is needed, in support of the correctness of the charge of the court given in the present case. The court, after commenting upon the case of Orr v. Insurance Co., said:
“The issue before us is whether, while the plaintiff, engaged in a lawful business, is legitimately earning his livelihood by and through the custom and patronage of others, the defendant, a corporation, and its foreman, having the power of employing and discharging large numbers of persons, can, without incurring legal liability therefor, without justifiable cause, and moved solely by a malicious and wanton intent and design to injure the plaintiff, use their power of employment and discharge upon persons seeking employment from them, or already in their employ, so as to cause those who are already dealing with the plaintiff to desist from further doing so, and those who would desire to do so from carrying out their wishes, by threats of nonemployment or discharge. In so doing the defendant 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 nonemployment or discharge. This will and power of choice both the plaintiff and the parties themselves are entitled to have left free, and not have coerced in order simply to work the former damage and injury.”
See, also, Delz v. Winfree (Tex. Sup.) 16 S. W. 111.
At the trial the court charged the jury that:
“The complaint in this case specifies two different grounds upon which plaintiff seeks to recover damages: First, injury to plaintiff’s reputation; second, injury to his business as a merchant.”
After calling the attention of the jury to the language used in the published notice, the charge continues:
“And in relation to this matter I instruct you that any words -will be presumed defamatory which subject the plaintiff to hatred, contempt, ridicule, or obloquy, or cause him to be shunned or avoided by Ms neighbors, and all words which by their ordinary meaning engender an evil opinion in the minds of right-thinking men, and tend to deprive him of friendly intercourse and society. I further instruct you that the words must be construed with reference to their natural sense, true Import, and ordinary meaning; that the innuendo in the complaint cannot enlarge, extend, or change the natural Import, sense, or meaning of the words; that the publication in its entirety is to be construed by the jury in the sense in which the community at large might and did understand it. Where the words, as published, are fairly capable of two different meanings (the language I have just quoted from the notice, in my opinion, is susceptible of two different, meanings), one harmless and the other defamatory, it Is a question of fact for the jury to determine from all the evidence in the case in which sense, within the meaning of the words, the persons to whom the notice was addressed, or persons who read the same, may have understood them. The burden of proof is upon the plaintiff to show that within these rules it was defamatory. If you believe from the evidence that the notice was posted by or under the directions of the defendants without any intention to injure the plaintiff's reputation, and that within its ordinary meaning, as understood by those to whom it was addressed, and other parties who read the same, it was not defamatory, it is your duty to find a verdict for the defendants. But if the jury believe from the language used and contained in the notice that, taken in connection with the entire publication, and with all the surrounding facts and circumstances testified to upon this trial, it is defamatory, within the ordinary meaning, as understood by those to whom it was addressed, and that it was false, and that plaintiff, in his reputation and good name, was injured thereby, it will be your duty to find a verdict in favor of the plaintiff, and assess such damages as you believe to he just and proper in the premises, under the evidence.”
Was not this portion of the charge, as well as the other, as favorable to the defendants as the law would warrant? What did defendants mean when they suggested in the published notice to their em-ployés “to refrain from associating with him [Chiatovich], either directly or indirectly, * * * and suggest that no one of our agents, representatives, or employés trade or deal with Chiatovich in any manner whatsoever. His interests are so antagonistic to ours, his purpose is so manifestly hostile, that those who favor him cannot complain if we consider them as equally unfriendly to us” ? Is there not an intimation or insinuation, in the former part of this notice, that Chiatovich is not a fit or proper person for the employés of Han-ehett to associate with? Is not the language used at least susceptible of this meaning? Does not the latter portion convey the idea, and
■'L Xo instructions were given to the jury which by any.ingenuity of counsel can be construed as being in opposition to the definition of a libel as contained in section 4672, Gen. St. Nev. Moreover, that section refers to criminal actions, and was not intended to limit or deny the right of plaintiff in a civil action to recover damages for published words which tend to, and do, injure a man in his trade, business, or occupation.
4. The charge given by-the court was intended to cover all of the essential points which had any controlling effect in this case, in such a manner as to be instructive to the jury. If it did, it was unnecessary to repeat the same in the language asked for by counsel. Unless the charge as given was radically wrong, it cannot be said that the court erred in refusing to give any of the numerous instructions asked by defendants’ counsel. I am of opinion that the charge of the court in its entirety is correct.
5. Finally it is claimed that the verdict is too large, that it is “out of all reason, and is so excessive as to cause the court to cut the same down to a nominal sum only.” The argument is that the loss in the profits of plaintiff’s business was very slight; but the jury were called upon, if they believed the notice to be defamatory, to assess the damage and injury to plaintiff's reputation as well as loss and damage to his business. The jury were instructed that:
“Damages are the indemnity recoverable by a person who ha.s sustained an injury to his reputation by the wrongful or malicious act of another or others. You should allow the plaintiff such damages, if from the instructions and evidence you believe him to be entitled to recover, as will fully compensate him for all injury he has received, resulting from the publication, as in your honest belief and best judgment will be reasonable, fair, and just. No more, no less.”
Under the facts of this case, I am unable to say that the damages were so excessive as to indicate any passion or prejudice on the part of the jury. I decline, for the reasons stated, to disturb the verdict. The motion for a new trial is denied.