Sparks v. McCreary
47 So. 332
Ala.
1908
Check Treatment
McCLELLAN, J.

We construe the counts, both - original and amendatory, as in case. The wrongful conduct of the defendant, not involving actual or constructive assumption of possession of the storehouse or goods of the plaintiff, or force in any form, Avas, on the averments, purely consequential in the damnifying consequence alleged to have resulted therefrom. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389; Ala. Midland R. R. v. Martin, 100 Ala. 511, 14 South. 401; 21 Ency. Pl. & Pr. 783. The gist of the action is that the defendant wrongfully, and in some of the counts it is averred also AAdllfully, wantonly, and maliciously, forbade the plaintiff and his clerks, in the presence of purchasers, or those negotiating to that end, to sell or buy any of the goods of the plaintiff, and threatened, if so, that he Avould take memoranda of such sales and purchases, and that those so dealing Avould be required to attend court or to submit to prosecution. It is- also averred that business was suspended thereby, that customers left, and that some of the clerks fled. It is not alleged that the defendant was or acted as an officer of the law in any sense.

*387In section 35 of the Constitution (1901), defining the legitimate limits and ends of government, it is said: “That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property. * * *” In section 13 it is ordained “that every person, for any injury done him, in his lands, goods, person or reputation, should have remedy by due process of law.” In section 1 of the organic law it is announced that among the inalienable rights with which men are endowed are “life, liberty and the pursuit of happiness.’ Writing in reference to these fundamental rights, in the Slaughterhouse Cases, 16 Wall (U. S.) 116, 21 L. Ed, 391, though in. dissent, Justice Bradley, with self-evident soundness, said: “For the preservation, exercise, and enjoyment of these rights the indivudual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without -this right he cannot be freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of a government to protest; and a calling, when chosen, is a man’s property and right.” — Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881. In necessary consequence, an unlawful invasion of or interference with the pursuit or progress of one’s trade, profession, or business is a Avrong for Avhich an action lies. Holt, C. J., in Keeble v. Hickeringill, 11 East, 574, thus states the doctrine: “He that hinders another in his trade or livelihood is liable to an action for so hindering him” — though it must be that he intended the broad declaration to be subject to the qualification that the hindrance, the act or conduct so resulting,.be wrongful, unlawful, and this, independent, as a general rule, of the motive or intent with which the hindrance was accomplished. We so understand the conclustion *388announced by Lord Watson, discussing Keeble v. Hickerngill in Allen v. Flood, Law Reports, [1898] 101-104. See, also, 1 Cyc. 650. 651, and notes. Of course, the animus with which a wrongful interference with another’s business or profession is done may so color it' as to warrant the imposition of exemplary damages ; but we do not think it can be soundly or wisely held that a lawful act may be rendered actionably wrong by virtue of the intent with which it was done. 1 Cyc. 668-670, and authorities in notes. If such was not the case, the mental attitude of the alleged wrongdoer — not the act itself — would determine whether the act was wrongful or not. — In Boyson v. Thorn, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 239, 240, quoting Lord Coleridge, it is said: “I do not know, except in the case of Lumley v. Gye, 2 El. & Bl. 216, that it has ever been held that the same person, for doing the same thing,-under the same circumstances, with the same result, is actionable or not actionable according to whether his inward motive was selfish or unselfish for what he did. I think the inquiries to which this view of the law would lead are dangerous and inexpedient inquiries for courts of Justice.”

Demurrer is not the correct method by which to assail the right to damages improperly claimed.- — Cen. of Ga. R. R. v. Keyton, 148 Ala. 675, 41 South. 921. Nor was it necessary for the complaint to affirm that the business here averred to have been tortiously interfered with by this defendant Avas laAviful and legimate; that being matter of defense, if available at all — an inquiry not before us for determination on this appeal. — Smith v. Dinkelspiel, 91 Ala. 528, 8 South. 490. See Ware v. Curry, 67 Ala. 274.

*389The suspension of the business, the departure of customers then there and others possibly coming in, and the failure of some of the employes of the plaintiff to continue in the service of plaintiff, were natural and inevitable consequences of the conduct imputed in the complaint to the defendant. These, if resulting, the defendant must be held to have intended; and, if so, we entertain the opinion that the rule announced in Smith v. Dinkelspiel, supra, with respect to the serviceableness of testimony tending to establish the value of the business to * the end of a reasonably certain ascertainment of the damage inflicted by the wrong alleged, is applicable in this instance, provided it is shown that for any definite period, beyond a mere temporary disturbance of the conduct of the business, the business ivas suspended as a proximate consequence of the action imputed to the defendant.

If the act described in the pleading ivas done wantonly, or maliciously, or with circumstances of aggravation, exemplary damages may be awarded. — Snedecor v. Pope, 143 Ala. 275, 39 South. 318, and authorities therein cited. That such damages need not be specifically claimed in the declaration is too well settled to require the citation of authority..

We are of the opinion that the demurrers to the original and amended counts should have been overruled, and for the error in sustaining them the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, O. J., and Anderson and Denson, JJ., concur.