By the first assignment of error the appellant, Swift Co., predicates error upon the refusal of the court to peremptorily instruct a verdict in its favor. A verdict was directed in favor of the express company and the court in his charge excluded any claim for damages against Swift Co. other than for the alleged ruin of appellee's egg and poultry business. In the absence of any complaint, as here, of the court's ruling applicable to such peremptory instructions, and there being a jury finding and judgment thereon, we must assume acquiescence in such rulings and the conclusiveness of the same as to this appeal. Any question as to liability at all of the express company, and any question of liability of Swift Co. for alleged wrongfully procuring or causing the appellee's discharge from service as a messenger, would therefore be entirely eliminated from the appeal. Consequently the question remaining here is as to whether or not the court should have also directed a verdict in favor of Swift Co. under the alleged complaint that it had effected and caused the ruin of appellee's egg and poultry business by wanton and malicious interference with it. There is no dispute in the facts, and it is not asserted by the parties that there is any conflict of evidence, unless it be that bearing on the question of damages.
The material facts appearing from the evidence, so far as essential to be stated for the purposes of the question under review, are that appellee Allen, while under employment as a messenger of the Pacific Express Company, was personally engaged in buying up turkeys and eggs from dealers along his route, and having them shipped to him by express to Texarkana, and there selling them to customers. Swift Co. were also engaged in the poultry and egg business in Texarkana, and were patrons of the express company. On December 21, 1908, the manager *Page 648 for Swift Co. at Texarkana wrote a letter to the superintendent of the express company calling, attention to the fact that Allen, its messenger, was shipping in eggs to Texarkana, and entering into competition with it, and to the further fact that it was a patron of the express company, and asked that the express company "cause the above-named party to discontinue his activity along this line that will come in competition with us." The express company referred the letter to Allen, with the result that Allen was required by the express company, in order to continue in its employ as messenger, to discontinue personally handling or actively carrying on the commission business while performing the duties of a messenger. But the express company consented that he might continue interested in the business as a silent partner of a firm, which was done thereafter under the name of Williamson Co. The express company had a rule, known to appellee, but it does not appear Swift Co. knew it, which reads: "Employés whose services are engaged exclusively by this company are absolutely prohibited from soliciting or handling for their personal account commodities of any kind forwarded by express on commission or speculation." Swift Co. did not do or say anything more to the express company, as the record admits, in reference to appellee's business, or the appellee himself, than to write the letter of December 21, 1908. Prior to writing the letter the manager for Swift Co. had a conversation with Allen to the effect of insisting that appellee should sell eggs at 30 cents, instead of 28 cents, per dozen. After the letter of December 21st was referred to Allen, he called on the manager of Swift Co. to withdraw the complaint in the letter, and the manager replied to the effect that he would not withdraw the complaint to the express company, unless appellee would agree to engage exclusively in the egg and poultry business. It is upon this letter of December 21st to the express company, coupled with the two conversations of Mullin with him, that appellee relies to sustain a cause of action for wanton and malicious interference with his commission business. It may be said from the first conversation of Mullin with appellee, happening prior to the letter to the express company, that it appears clearly enough that the object or motive on Mullin's part was to have appellee agree to raise the selling price of eggs to what Mullin claimed was the only price he could afford to sell them at. But the purpose to injure appellee in his business as such is not evident from either the first or second conversation. In the second conversation it is clear that the only purpose Mullin had was to have appellee either follow the service of messenger, or go exclusively into the commission business. It can be assumed, as proven, that the letter written by Mullin to the express company caused the express com-company to enforce its rule heretofore mentioned against Allen, and that by its enforcement Allen lost an advantage to him in his business of solely conducting it without partnership, along with his messenger service, that he would have been able to attain or enjoy but for the letter of complaint, unless sooner terminated by the express company by enforcement of its rule on its own motion. As it is not shown nor contended in the case that either the express company or Swift Co. induced any of the customers or parties selling to appellee to break their contracts with him, or not to deal with him, neither the case nor the principle applied in the case of Raymond v. Yarrington, 96 Tex. 443,73 S.W. 800, 62 L.R.A. 962, 97 Am. St. Rep. 914, would rule the question here. See 2 Page on Contracts, p. 2046; Angle v. Railway Co., 151 U.S. 1, 14 S. Ct. 240, 38 L. Ed. 55. And, as there is no pretense in the facts that there were direct acts of interference or molestation in the conduct of appellee's business, as in the case of Dunshee v. Standard Oil Co.152 Iowa 618, 132 N.W. 371, 36 L.R.A. (N. S.) 263, cited by appellee and relied on by him, the principle there applied could not have force and application to the facts here. It is a significant fact here that the existence of the appellee's asserted right to continue unmolested in his dual capacity as messenger of a public service corporation and commission merchant was not a matter of contract with the express company. On the contrary, it was a violation of the promulgated and known rule of the express company. The defeat of the right, if so, to continue the business and the agency together for benefit to appellee, could not therefore be related to any contract right with the express company and Allen so to do, so far as the pursuit of the commission business was concerned. It is the aim of the law to protect every person against the wrongful act of every other person, and the law has provided an action for injuries done by disturbing a person in the enjoyment of any right or privilege he has. The principle has thus been laid down in Walker v. Cronin,107 Mass. 555: "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition or the exercise of rights by others, it is damnum absque injuria unless some superior right by contract or otherwise is interfered with. But, if it comes from the merely 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." See, also, 2 Cooley on Torts, p. 598; 1 Cyc. 650. Following this principle, in order *Page 649 to constitute the letter of December 21st an actionable wrong, there must be a violation of some definite legal right of the appellee. Allen, as a messenger in a public service corporation, was in a position to examine all the waybills, and to learn who the customers of Swift Co. were and the amount of express it was doing in Texarkana; and being in the same business himself, and armed with this information obtained or obtainable by virtue of his employment as messenger, he could become an unfair competitor. The policy requiring public service corporations to treat all patrons alike and accord equal advantages to all shippers without discrimination would not sanction, we think, the idea that the express company properly could authorize or permit its employés to obtain such information and trade advantages for their own personal benefit by virtue of their employment as would enable them to use such information to their personal advantage as against patrons of the express company in the same line of business. In this view, then, appellee's right to use his employment in the public service corporation in connection with or as a means to assist him in carrying on his business to his advantage was not a right so superior to the appellant's right to complain and protest as to such methods as to be free from molestation by the appellant or the express company itself. If the appellant in the facts had the right in the interest of its business, as it did, to complain to the public service corporation that its employé was using his employment as he was to further his private business in competition with appellant, then such letter of complaint written by appellant to the express company would bring the act of appellant in making such complaint under the shelter of the principle of trade competition, and would not be a ground for action. Appellant in writing the letter of complaint was serving, it must be said from the facts, a purpose connected with its own business and founded on that purpose; and, being a complaint moving from a disposition only to protect its business, it could not be said that the act of appellant was done wantonly and without interest or occasion to do same. The letter contained presentation of reasons, not in themselves unlawful, why he should not continue as messenger and still be in a competitive business with a patron of the express company. The force of the letter, as seen, reached only to the purpose to have the express company "cause the above-named party to discontinue his activity along this line that will come in competition with us." As under the facts the object sought, and also the means used by appellant in complaining to the express company, was no broader than justified, the appellant was entitled to a verdict in its favor. The assignment therefore should be sustained, and the judgment here rendered which should have been rendered below, that the appellee have and recover nothing of Swift Co., and that appellant recover all costs of appeal and of the court below.
The judgment not appealed from will remain undisturbed.