dissenting:
By the express terms of the policy issued by appellant to Arnold, Schwinn & Co., insuring that company against liability for personal injuries to its employees, appellant had the absolute leg’al right to terminate the insurance at five days’ notice, in which case the unearned premium was to be re-paid. That right was unconditional ■ and could be exercised by the appellant at its will, with or without a reason, or from any motive which might prompt it to such action. The cause, and only cause, of the discharge of appellee was the threat of appellant’s agent, Eobinett, to exercise the right reserved in the policy and cancel it unless the appellee should be discharged. We see no justification for saying that the threat was to cancel the policy in any different way from that provided in it. Having an absolute legal right to cancel the policy at its own election, the threat of appellant to do it was not a threat to do a legal wrong. If there was a legal right to cancel the policy it was not unlawful to declare an intention to do so, and if the right was not affected by the reasons influencing appellant’s action, the motive was immaterial. The motive which actuated Eobinett in threatening to exercise the legal right of appellant secured to it by its contract, and terminate the insurance, was to force a settlement of the suit and to prevent the insured from furnishing appellee with lucrative employment while carrying on the suit, which was, in effect, against appellant. If there was any legal liability for appellee’s injuries the liability was upon appellant to the extent of §5000, and it was bound by the policy to defend the suit or settle it at its own cost. There was no evidence tending to prove that the officers or agents of appellant did not honestly believe that there was no legal liability for such injuries. So far as appeared, the position of appellant that appellee had no legal claim against it or Arnold, Schwinn & Co. was assumed in entire good faith and on sufficient grounds. Appellee was a foreman in the shop where accidental injuries were insured against, but whether that would be a justifiable reason for declining to continue the insurance while he was prosecuting a suit which in fact was against appellant, or whether the motive of appellant was a proper one according to moral standards, we regard as immaterial. That appellant had a legal right to cancel the policy if its • motive had not been bad is not denied, and the threat to do it did not become unlawful because of a bad motive. On that subject Mr. Justice Cooley says: “Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they can not make that a wrong which in its own essence is lawful.” He illustrates the rule by the case of Mahan v. Brown, 13 Wend. 261, and then says: “So it has been held that no action would lie for maliciously conspiring, as, insurance officers to refuse insurance on the plaintiff’s property; or for maliciously collecting the notes of a bank and presenting them for redemption; or for maliciously adopting a trade-mark to the prejudice of a plaintiff who has no exclusive right to appropriate it; or for throwing open one’s land to the public so that they may pass over it, thereby avoiding a toll gate; or for maliciously throwing down fences put up through one’s land to mark the lines of a road which has never lawfully been laid out.” (Cooley on Torts, 690.) One may sue his debtor from no motive but ill-will, and yet if there is a legal cause of action there could be no liability for bringing the suit. It will be manifest from these examples that immunity from liability for the exercise of a legal right does not rest alone upon the right of competition in trade, but is founded upon the truism “that the exercise by one man of his legal right cannot be a legal wrong to another.” (Cooley on Torts, 688.) To justify a recovery there must be legal wrong as well as damage.
This case is, in our judgment, not different in'principle from cases where one, in the exercise of a legal right, refuses to continue in the employment of another unless some other employee shall be discharged. It is not claimed that such an act would give rise to a cause of action. It certainly makes no difference whether the motive is to injure the employee who is discharged, or to obtain a benefit to the one causing the discharge. It was held in Raycroft v. Tayntor, 68 Vt. 219, that “if one, in the exercise of a lawful right, threatens to terminate a contract between himself and another unless the latter discharges his employee not engaged for any definite time, the discharged employee has no right of action for damages ag'ainst the party making the threat, although his motive in procuring the discharge may have been inspired by malice.” In that case the defendant was the manager and superintendent of a granite quarry. One Libersont obtained from him leave to g"o into the quarry and cut the poorer granite into paving stones by paying an agreed price therefor. The contract was for no definite time. He expected to continue the work through the winter. The plaintiff was employed by the latter in the work of cutting the paving stones. While so employed a disagreement arose between him and the defendant about matters having no connection with the quarry or his employment by Libersont. The defendant becoming angry, ordered the plaintiff to leave the premises and threatened to have him discharged. He afterwards went to Libersont and told him that if he did not discharge the plaintiff he could no longer cut paving blocks on the premises. Libersont informed him of his arrangement with the plaintiff; that he was satisfactory to him and he did not want to discharge him, but the defendant insisted that he must be discharged or that Libersont should leave the works, and thereupon the latter did discharge him solely because of that demand. The plaintiff showed that he suffered loss by reason of such discharge and recovered a judgment in the trial court, but the Supreme Court reversed it on the ground that the defendant’s demand for the plaintiff’s discharge was but a threat to exercise a legal right,—that is, the right to terminate his agreement with Libersont whenever he chose to do so. That decision seems to be supported by the authorities referred to in the opinion, and none are cited or to be found to the contrary.
In Perkins v. Pendleton, 90 Me. 258, (decided in 1897,) the Vermont case, supra, was cited for that part of the opinion which says: “The authorities cited for.the plaintiff clearly established that if the defendant; without having any lawful right, or by an act or threat aliunde the exercise of a lawful right, had broken up the contract relations between the plaintiff and Libersont maliciously and unlawfully, although such relations could be terminated at the pleasure of either, and the damage had thereby been occasioned, the party damaged could have maintained an action against the defendant therefor.” But it is also said: “We think that the important question in a case of this kind is as to the nature of the defendant’s act and the means adopted by him to accomplish his purpose. Merely to induce another to leave an employment or to discharge an employee by pursuasion 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 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 desires to retain and would have retained except for such unlawful threats, is an actionable wrong. Nor do we differ from the recent decision of the Vermont court in the case above referred to, which holds that a threat to do what the defendant had a right to do would not be such a one as to make the defendant liable in an action of this kind.”
We think the conclusion must be that the evidence produced upon the trial, with all its legal intendments, not only failed to fairly tend to prove that the plaintiff’s discharge was accomplished by the illegal acts of the defendant, but that it affirmatively showed that it was accomplished by threatening to do that which it had the lawful right to do, and therefore the trial court erred in refusing to give the peremptory instruction asked to return a verdict of not guilty.