(dissenting).
It is not easy to dissent from the affirmance of a judgment with which you are in complete sympathy and accord. And, it is even more difficult when the affirmance is based upon what I agree is a correct statement of the facts and applicable rule of law. I am constrained to dissent, however, because of my conviction that the court’s instructions were lacking in essential clarity and consistency, and because they in effect peremptorily directed the jury to return a verdict for the plaintiff in a case which we all agree presented a jury question.
The jury was told that the “defendant had a right to protect its own interest under such workmen’s compensation policy and to take any lawful steps to see that its interests were protected”, but that it “did not have the right intentionally to interfere with plaintiff’s employment by Chester Freeman, nor intentionally without just cause or excuse to cause Chester Freeman to discharge plaintiff as his attorney, or to cause him to employ an attorney selected by the defendant.” And, the jury was further told that “It is actionable wrong for one to interfere maliciously with a contract between two parties and thereby induce one of such parties to break that contract to the injury of the other, and ‘maliciously’ as used means a wrongful act done intentionally without just cause or excuse, and in this connection you are instructed that there is no evidence in this case of any facts which would constitute such a just cause or excuse.” The court went on to instruct the jury that if they “believed from the evidence that plaintiff was employed as an attorney by Chester Freeman to represent him in an action seeking recovery for him because of an accident and injuries suffered by him and that the defendant herein intentionally caused or induced the said Chester Freeman to terminate such employment and discharge plaintiff” and the plaintiff was injured thereby, it should find the issues in favor of the plaintiff.
And, elsewhere in the instructions, the jury was told that it was not ethical for the insurance company, after knowing that Chester Freeman had employed a lawyer, to contact him about his case and that they should have seen his lawyer. And then, after recalling the evidence,the court expressed the view that the insurance company, with knowledge that Chester Freeman had hired the plaintiff to represent him, “induced him to discharge the plaintiff .for the purpose of getting him to hire their lawyer”; and *553that “The evidence, it seems to me, could point to no other thing than that they talked to him for the purpose of getting him to hire their lawyer instead of a lawyer that he had, and if they did do that and if you find that they did do that and that induced him to discharge the plaintiff in this case, the plaintiff is entitled to recover, and as I have stated in the instructions, I find in the evidence no just cause or excuse for their attempting to cause Mr. Freeman to hire their lawyer. They had a right to have their lawyer protect their rights in that claim or any claim that Chester Freeman might have against a third party, but they had no right to induce him to discharge his lawyer so that their lawyer would represent him. * * * That is maybe somewhat technical to you but it is well understood by lawyers and it is for that reason that I commented so specifically to you.”
After the bailiff was sworn to take charge of the jury, the court again made an additional statement as a part of his instructions, saying “the defendant did have a legal right to refuse to pay until a court required the defendant to. I don’t see that in the exercise of that right it furnished any just cause or excuse and I instruct you that it would not furnish any just cause or excuse for them inducing the injured man to discharge the plaintiff, if you find that did happen from the evidence.” This latter instruction was objected to on the ground that it “in effect told the jury that we, the defendant, had the legal right not to pay until they were ordered to pay by a court of competent jurisdiction and that if in exercising this legal right they induced Chester Freeman to discharge Carroll Freeman, that that would not be just cause or excuse.” Whereupon the court answered, “It might be considered that way. It is not the way I meant it, but it might be considered that way.”
The only rational interpretation I can place on these instructions, considered as a whole, is that while the defendant had a right to take any lawful steps to protect its interests under its workmen’s compensation policy, including the right to refuse to pay compensation until a court required it to do so, the refusal to pay compensation in the exercise of that right furnished no cause or excuse to induce the injured man to discharge the plaintiff; and that in fact there was no evidence of any just cause or excuse.
In the extended colloquy between the' court and counsel preparatory to instructions, the court stated that he was going to tell the jury “as a matter of law the evidence you have stated, if true, is not just cause or excuse.” The court did so in effect instruct the jury and it was clearly peremptory. To me it is confusingly inconsistent to submit a factual issue to a jury and at the same time tell it that there is no evidence to support one side of the lawsuit. To be sure, it is the duty of the judge in federal courts “whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.” But a judge ought to exercise that power with great restraint and with the realization that “ ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 699, 77 L.Ed. 1321. Above all, the court’s expression of an opinion should not be “one-sided”, and if there are two submissible theories, both of them should certainly be presented to the jury under instructions which will leave no doubt that the jury has a choice based upon supporting facts and applicable, law.
We have stated the well settled rule-in Oklahoma to the effect that “if one-employs fair means and acts in good! faith and with justification for the protection of his legal rights, he is not liable in damages even though his acts and conduct do constitute interference with the contractual rights of another.” Oth*554erwise stated, “Procuring the breach of a contract in the exercise of an equal or superior right is acting with just cause or excuse, and is justification for what would otherwise be an actionable wrong.” Knapp v. Penfield, 143 Misc. 132, 256 N.Y.S. 41, 44, quoted in National Life & Accident Ins. Co. v. Wallace, 162 Okl. 174, 21 P.2d 492.
The jury was instructed that if they believed from the evidence that the defendant intentionally caused or induced the said Chester Freeman to terminate such employment and discharge the plaintiff, the plaintiff was entitled to recover. But it was not given the other side of the lawsuit to the effect that if they believed from the evidence that the defendant employed fair means and acted in good faith with justification for the projection of its equal or superior rights under its workmen’s compensation policy, it would not be liable, even though they invaded the plaintiff’s contract with impunity. Instead, the jury was told more •than once that there was no evidence of just cause or excuse. This instruction, although in the form of a comment upon the evidence, when considered in its context, amounted to a peremptory instruction to return a verdict for the plaintiff, and I would reverse it for a new trial.