STIAW, J.,
dissenting. — I dissent. I think the judgment should be modified, but that it should not be reversed.
[613]
The plaintiff complains of both a strike and a boycott and asks an injunction against both. So far as the matter of the alleged strike of plaintiff’s men is concerned, I think the defendants did nothing which they did not have a lawful right to do and that they used no unlawful means in doing what they did. The plaintiff was employing a number of men who belonged to the several unions represented by the Building Trades Council, and it was understood by all the members of the unions that they would not work for an employer who persisted in employing non-union men in the business. The plaintiff employed non-union men and thereupon the union men in its employ quit work. There was no violence used and no effort made to prevent plaintiff from securing other men to work, or to prevent other men from seeking its employment. The men had an absolute right to quit work at any time. None of the defendants used any improper means to induce the men to quit. They were simply informed that the plaintiff had refused to discharge the non-union men, and thereupon, in accordance with the rules of the unions, which amounted to a previous agreement of all the members between themselves, they left the plaintiff’s service. The judgment purports to enjoin the defendants from “molesting, harassing, annoying or interfering with the employees of plaintiff at any time,” by “threats of force, intimidation, or coercion.” There is no evidence that the employees had been or would be threatened, or coerced, or that they had been harassed, annoyed, molested, or interfered with. This part of the judgment is therefore without support. An injunction should not be granted against the doing of acts which have not been done or threatened.
I think the judgment is sustained by the evidence in so far as it enjoins the continuance of the alleged boycott.' The defendants are forbidden to coerce plaintiff’s customers to withdraw their custom from plaintiff by threats that unless they do so the defendants will cause loss to them in their business.
The respective unions represented by the Federated Trades Council were twenty-two in number. It does not appear how many members they had in the aggregate, but it is plain from all the circumstances that the membership included the majority of the workmen in that vicinity engaged in the
[614]
respective trades, and that they were of such numbers that if they all refused to work for any contractor engaged in building enterprises in that neighborhood, such contractor would be unable to carry on his business without substantial loss. The agreement of the union men that they would not work for any contractor who employed non-union men, or who used material made by any manufacturer or sold by any dealer who employed non-union men, was embodied in their rules adopted by them long before any difficulty had arisen with the plaintiff and without any reference whatever to the plaintiff. It was a general regulation and agreement, intended to apply to all persons and to be enforced whenever any occasion arose which made it applicable. The method of putting it in force was that the Building Trades Council, when it found any contractor, dealer, or manufacturer, employing non-union men, or using non-union materials, sent out notices to all union workmen and to other dealers and contractors that the person in question was “unfair,” and thereupon it was understood that all men in the employ of such other persons would refuse to work for their respective employers unless such employer refused to use materials received or purchased from such boycotted person. "When the Parkinson Company employed non-union men these notices were immediately sent to all its customers. As a result its customers immediately countermanded such orders to plaintiff for goods as were then unfilled and ceased thereafter to deal with plaintiff. The evidence showed that at least seven of the plaintiff’s important customers quit dealing with the plaintiff, that substantial damage had already been caused to the plaintiff by this loss of custom, during the time it had continued, and that its further continuance would cause plaintiff further substantial loss, that these customers were, by the aforesaid threats of defendants, coerced and compelled, against their wish and will, to cease dealing with plaintiff or using goods obtained from plaintiff, and that the defendants intended and threatened to continue this boycott indefinitely.
The claim of the defendants appears to be that these notices were intended for the benefit of the several persons to whom they were sent, to warn them of the consequences that might attend their patronizing the plaintiff, so that they could avoid doing so, and thereby escape the evil results that would
[615]
otherwise come to them, and that the sending of notices for such a purpose is not only lawful and innocent, but praiseworthy, as well; that these consequences would not come as the result of any act done with reference to the parties warned, but as the result of conditions that existed under the union rules established long before any difficulty with plaintiff arose. These rules seem to be regarded as of similar force to the law of the land and a notice not to disregard them as a friendly act similar to a notice to a friend not to violate .the law. I concede, of course, that where a strike has been determined upon, the mere sending of a notice of the fact is not unlawful, or blameworthy, and cannot be made the foundation of an action. Perhaps the sending of these notices, under some circumstances, might have been considered as an act of this character. But under the circumstances disclosed in this case, and in view of the findings of the court which show that the acts of the defendants were intended to coerce plaintiff’s patrons to cease dealing with plaintiff in order to injure plaintiff in its property rights, the conduct of the defendants must be considered as malicious and unlawful.
The defendants had the right, by lawful means, to persuade or induce others to cease dealing with plaintiff, although their purpose in so doing was to injure the plaintiff in its business and constrain plaintiff to yield to their demands in regard to the conduct of plaintiff’s business. It is only when they seek to accomplish such injury by the use of means which the law deems unlawful that their action to that end becomes unlawful and the resulting injury an actionable wrong.
The entire case depends on the question whether or not the means by which the defendants induced the plaintiff’s customers to cease dealing with it were unlawful.
It is settled in this state, and for the most part in other jurisdictions also, that, in cases where one person induces another to do an act, injurious to a third person, the mere fact that the person instigating the doing of the act was actuated by a bad motive, or by malice toward the third person, will not make his instigation unlawful.
(Boyson
v
Thorn,
98 Cal. 578, [33 Pac. 492].) The effect of the authorities, in eases like the present, is that, in order to make such instigation unlawful, the customer must be induced to cease dealing with the party intended to be injured, by means of
[616]
some force, intimidation, or coercion which destroys his freedom of action and constrains him to cease such dealing when he does not wish to do so and would not do so except for the constraint put upon him. In
People
v.
Schmitz,
7 Cal. App. 330, [94 Pac. 419], it is said that the means used to induce the injurious action toward the third party, and which, if used, will make the resulting injury actionable, includes duress, menace, fraud, and undue influence, as defined in sections 1569, 1570, 1572, and 1575 of the Civil Code. According to these sections, fraud involves deceit, duress, confinement of the person or detention of property, and menace a threat of violence to person or property or of an attack on character. Neither of these things occurred here. The class to which the conduct of the defendant belongs, if it can be characterized as illegal, is that of undue influence. In the decisions on the subject this method of influencing the action of others is usually included with various forms of menace and is designated as intimidation, or coercion. In other jurisdictions there are no code provisions defining the general principles of law such as we have in the Civil Code. By the provisions of the code above mentioned a contract which is procured by either duress, menace, fraud, or undue influence is said to be voidable. The use of such means is characterized as illegal. It is not necessary, in order to constitute such undue influence, or coercion, that there should be any sort of physical violence done or threatened, or that there should be any act done or threatened, which, in itself, and apart from its effect in controlling the action of the person coerced, would be unlawful. It is sufficient if the acts threatened, although lawful, were of such a character that if done they would cause loss or injury to the person threatened of so serious a nature that the mere threat prevents him from exercising his own will in the matter and causes him, against his will, to act injuriously to the person intended to be injured.
These principles are established by a great number of decisions of the courts of this country and England. One of the latest of these is
Quinn
v.
Leathem,
in the House of Lords App. Cas., [1901] p. 495. Leathern, a butcher, was employing non-union men. Quinn and others, members of a union, threatened Leathern that if he did not discharge these men they would stop his custom and call out his union men. ’He
[617]
refused to discharge the objectionable men and thereupon, by threats to a customer named Munee, that they would also call out his men if he did not cease dealing with Leathern, they forced Munee to comply with their demand and cease buying of Leathern, to his injury. One Dickie, a workman, was by similar means compelled to quit Leathern’s service. The question was whether or not there was sufficient evidence to sustain a verdict for the plaintiff for damages. Lord Brampton, referring to Dickie, who quit without notice, says: “There was an abundance of evidence that he was induced to do that wrongful act by the unjustifiable influence of the defendants.” And respecting the rights of the defendants as a trades union he says: “As members of a trades union society they have no more legal right to commit what would otherwise be unlawful wrongs than if the association to which they are attached had never come into existence. They have no more right to coerce others pursuing the same calling as themselves to join their society or adopt their views or rules, than those who differ from them and belong to other trades associations would have a right to coerce them.” And with reference to the method of such coercion his opinion proceeds: “It is at all times a painful thing for any individual to be the object of hatred, spite, and ill-will of any one who seeks to do him harm. But that is nothing compared to the danger and alarm created by a conspiracy formed by a number of unscrupulous enemies acting under an illegal compact, together and separately, as often as opportunity occurs, regardless of law and actuated by malevolence, to injure him and all who stand by him. Such a conspiracy is a powerful and dangerous engine, which in this case has, I think, been employed by the defendants for the perpetration of organized and ruinous oppression.” On this subject Lord Lindley’s opinion is the fullest. The following is extracted from it: “What the defendants did was to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some non-union men in his employ. In other words, in order to compel the plaintiff to discharge some of his men, the defendants threatened to put the plaintiff and his customers and persons lawfully working for them, to all the inconvenience they could without violence. . . . The defendants were doing a great deal more than exercising their own rights; they
[618]
were dictating to the plaintiff and his customers and servants what they were to do.” (p. 536.) “One man without others behind him who would obey his orders, could not have done what these defendants did. One man, exercising the same control over others as these defendants had, could have acted as they did, and if he had done so, I conceive that he would have committed a wrong towards the plaintiff for which the plaintiff could have maintained an action. I am aware that in
Allen
v. Flood, App. Cas., [1898] pp. 128, 138, Lord Herschell expressed his opinion that it was immaterial whether Allen said he would call the men out or not. This may have been so in that particular case, as there was evidence that Allen had no power to call out the men, and the men had determined to strike before Allen had anything to do with the matter. But if Lord Herschell meant to say that as a matter of law there is no difference between giving information that men will strike and making them strike, or threatening to make them strike, by calling them out, when they do not want to strike, I am unable to concur with him. It is all very well to talk about peaceable persuasion. It may be that in
Allen
v.
Flood
there was nothing more; but here there was very much more. What may begin as peaceable persuasion may easily become, and in trades union disputes generally does become, peremptory ordering, with threats, open or covert, of very unpleasant consequences to those who are not persuaded. Calling workmen out involves very serious consequences to such of them as do not obey. Black lists are real instruments of coercion, as every one whose name is on one soon discovers to his cost. A combination not to work is one thing, and is lawful. A combination to prevent others from working by annoying them if they do, is a very different thing, and is
prima facie
unlawful. ... A threat to call men out given by a trades union official to an employer of men belonging to the union and willing to work with him, is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist, and, to say the least, requiring justification. ... It is said that conduct which is not actionable on the part of one person cannot be actionable if it is that of several acting in concert. That may be so where many do no more than one is supposed to do. But numbers may annoy and coerce where one may not. Annoyance and
[619]
coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce. . . . Coercion by threats, open or disguised, not only of bodily harm but of serious annoyance and damage, is
prima facie,
at all events, a wrong inflicted on the person coerced; and in considering whether coercion has been applied or not, numbers cannot be disregarded.”
In
Read
v.
Friendly Societies,
[1902] K. B. Div. 737, an apprentice sued the defendants for damages arising from the coercion of his employer to discharge him, by threats to call out the employer’s men, all of whom belonged to the society. The court considered this to be the use of illegal means, and said regarding it: “Where illegal means have been used to bring about a breach of contract to the detriment of a party thereof, ‘just cause’ cannot come into the discussion at all.” In
Glamorgan Co.
v.
South Wales M. Federation,
[1903] 2 K. B. Div. 573, it was held that the act of the defendants in inducing a breach of their contract of service by the employer’s men could not be justified by showing that the direction to strike was made for the benefit of the men and without malice towards the employers. In
Giblan
v.
Amalgamated L. U.,
[1903] 2
K.
B. Div. 620, the court said: “In my opinion, it was not essential, in order for the plaintiff to succeed, that he should establish a combination of two or more persons to do the acts complained of. In my judgment, if a person who, by virtue of his position or influence, has power to carry out his design, sets himself to the task of preventing, and succeeds in preventing, a man from obtaining or holding employment in his calling, to his injury, by reason of threats to, or special influence upon, the man’s employers, or would-be employers, and the design was to carry out some spite against the man, or had for its object the compelling him to pay a debt, or any similar object not justifying the acts against the man, then that person is liable to the man for the damage consequently suffered.” And on page 623, the “special influence” there intended is thus described: “Going to his employer and threatening that they would resort to the powers which were, or were believed to be, vested in them as officers of a trades union, and which involved a resort to the power of numbers in a way which might and probably would cause detriment to the employer. . . . Such acts, so persisted in, seem to me to be in
[620]
the nature of molestation or coercion; and although they do not involve recourse to physical force, I am far from satisfied that they are not such as to be illegal, even if done by a single individual.”
In
Perkins
v.
Pendleton,
90 Me. 166, [60 Am. St. Rep. 252, 38 Atl. 96], the court says: “For a person to wrongfully, that is, by employment of improper means, induce a third party to break a contract with the plaintiff, whereby injury will naturally and probably, and does in fact, ensue to the plaintiff, is actionable,” although the third party has the lawful right to terminate the contract at any time. “Wherever a person, by means of fraud or intimidation, procures the breach of a contract . . . which, but for such wrongful interference, would have continued, he is liable.” “The important question in an action of this kind is as to the nature of the defendant’s acts and the means adopted by him to accomplish his purpose. Merely to induce another to leave an employment or discharge an employee, by persuasion or argument, however whimsical, unreasonable, or absurd, is not in and of itself unlawful, and we do not decide that such interference may become unlawful by reason of the defendant’s malicious motives, but simply that to intimidate an employer, by threats, if the threats are of such a character as to produce this result, and thereby cause him to discharge an employee, whom he desired to retain and would have retained, except for such unlawful threats, is an actionable wrong.” In
Vegelahn
v.
Guntner,
167 Mass. 99, [57 Am. St. Rep. 443, 44 N. E. 1077], it is said: “A combination to do injurious acts expressly directed to another, by way of intimidation or constraint, either of himself or other persons employed or seeking to be employed by him, is outside of allowable competition, and is actionable.” In
Commonwealth
v.
Hunt,
45 Mass. (4 Met.) 111, 129, [38 Am. Dec. 346], the court says: “When an association is formed for purposes actually innocent, and afterwards its powers are abused, by those who have the control and management of it, to purposes of opposition and injustice, it will be criminal in those who misuse it, or give consent thereto.” In
Lucke
v.
Clothing C. A.,
77 Md. 407, [39 Am. St. Rep. 421, 26 Atl. 505], a cutters’ union threatened the employers of Lueke that if they did not discharge him, all labor organizations would be notified that the house was a non-union house, and it appeared that this was
[621]
intended to mean, and was so understood, that all the union men in their employ would walk out, and that this would cause the employers great loss in their business. This threat so made caused the discharge of Lucke and it was held to constitute unlawful coercion and that it gave Lucke a cause of action against the union making the threats for the damages suffered therefrom. In
Cœur D’Alene Co.
v.
Miners' Union,
51 Fed. 267, the court said: “If the things done, or the words spoken, are such that they will excite fear, or a reasonable apprehension of damages, and so influence those for whom designed as to prevent them from freely doing what they desire, and the law permits, they may be restrained, and the courts will look beyond the mere letter of the act or word into its spirit and intent.” In
United States
v.
Kane,
23 Fed. 748, the opinion by Brewer, J., shows that a threat may be sufficient if merely implied, although not expressed. In
Thomas
v.
Cincinnati etc. Railway Co.,
62 Fed. 818, Taft, J., said: “All the employees had the right to quit their employment but they had no right to combine to quit their employment, in order thereby to compel their employers to withdraw from the mutually profitable relations with a third person, for the purpose of injuring that third person, when the relation thus sought to be broken had no effect whatever upon the character or reward of their services.” (See, also,
O’Brien
v.
People,
216 Ill. 354, [108 Am. St. Rep. 219, 75 N. E.
108]; United States
v.
Cassidy,
67 Fed. 698, 763;
Oxley Stave Co.
v.
Coopers’ Union,
72 Fed. 695;
Nashville
v.
McConnell,
82 Fed. 65;
Hopkins
v.
Oxley Stave Co.,
83 Fed. 918, [28 C. C. A. 99];
Doremus
v.
Hennessy,
176 Ill. 614, [68 Am. St. Rep. 203, 52 N. E. 924, 54 N. E. 524];
Casey
v.
Cincinnati Typographical Union,
45 Fed. 135;
Boutwell
v.
Maar,
71 Vt. 1, [76 Am. St. Rep. 746, 42 Atl. 607];
Jackson
v.
Stanfield,
137 Ind. 592, [36 N. E. 345, 37 N. E. 14];
Moran
v.
Dumphy,
177 Mass. 485, [83 Am. St. Rep. 289, 59 N. E. 125];
Wilcut Co.
v.
Bricklayers’ Union,
(Mass.) 85 N. E. 897.)
All these expressions are but different ways of saying that the use of undue influence to compel or bring about the action of one person to the injury of a third person, is the use of illegal means to that end.
It is of no importance that the rules were adopted without special reference to the plaintiff. They were adopted for the
[622]
express purpose of being put in force against any person when tbe occasion should arise which made it desirable that the conduct of such person should be influenced or controlled. The effect in contemplation of law is the same as if they had been made expressly for the occasion for which they were used. Nor is the case of plaintiff defeated by the fact that the only act done by the defendants at the time of the boycott was the sending of notices that the plaintiff had been declared unfair, without threat of any sort accompanying it. It is in evidence that all the persons thus notified knew of the purport and effect of the union rules which would be applied in such a case. The defendants had created this engine of oppression for use at any time they desired, and had prepared the signal upon which it was to become active. The parties notified were aware of all this and the defendants also knew that these parties had this knowledge. Further words were unnecessary. The threat would not have been more complete if the notice had expressly stated that all business with Parkinson Company must stop under penalty of a strike of their union workmen. The defendants had arranged this condition of affairs. They cannot escape its effects on the ground that they were simply giving information of action which would inevitably take place and were doing it for the benefit of the contractors so that they might act as requested and thus avoid the damages otherwise ensuing. If the action of which this notice was given had been that of third persons for whom defendants were in nowise responsible, or with whom they were not in collusion, such a claim might stand. But the action of which they were so kindly notifying the contractors was their own action long before resolved upon. If they had no right to act in this manner for this purpose, the fact that it was previously arranged or decided upon for this or any similar occasion, was immaterial.
It is further argued that the only thing with which the customers were threatened was a strike of these customers’ employees, that this threat was made by the men themselves,, through their agents authorized to act for them, and that they had a lawful right to strike at any time and for any cause or-no cause, and hence that their conduct was not unlawful. The-principle settled by'the cases cited, however, is that while men have a right to strike, they have no right by that means to
[623]
coerce tbeir employers so as to compel them to act to the injury of a third person. The fact that they were to strike in such numbers gave them a power over the threatened customers of plaintiff, which constituted undue influence over them, or coercion or intimidation, as most of the authorities usually express it, and this coercion, exercised for the purpose of injuring a third person, is an unlawful act and makes the resulting injury an unlawful injury, which may be enjoined if only threatened, and which, if committed, may be redressed by an action for damages. It is the control of another’s conduct against his will that is the unlawful element in the proposition. This being unlawful, the resulting injury to a third person is unlawful, although every other act in the transaction is lawful in itself. So far as this unlawful element is concerned it is immaterial whether that control is obtained by fear produced by the immediate prospect of serious pecuniary loss, as the result of a threatened strike, or by fear produced by a threat of bodily injury.