dissenting.
I respectfully dissent.
The court concludes that the directed verdict in favor of Van Horn and his employer LAN was proper. I disagree.
Although the court correctly states the standard of review, they have failed to adhere to it. A directed verdict will be upheld only if reasonable minds cannot differ that the plaintiff failed to establish a cause of action after considering all the evidence favorable to the plaintiff and disregarding all contrary evidence and inferences. Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982).
In accordance with this standard of review, the record reflects the testimony of Solis that
1) he got the contract in question under adverse circumstances, and only after agreeing to drop a law suit he had pending;
2) 16 days after the start of the project, his work was stopped by Van Horn for insufficient reasons causing unnecessary delays;
3) upon resuming work, he received little cooperation from Van Horn, who was the *538project engineer, when faced with unforeseen problems on the job;
4) defective specifications set out by Van Horn caused unnecessary delays and problems;
5) he and his employees were consistently harassed, threatened, and even had their completed work intentionally tampered with by Ortiz, who was Van Horn’s immediate subordinate and project inspector;
6) Ortiz admitted he was harassing Solis and his employees in compliance with orders from Escudero, the City Engineer;
7) the day after he received a letter from Van Horn admitting that Van Horn’s specifications were inaccurate, he received a letter from Escudero ordering him to stop all work on the project which was a result of recommendations from Van Horn;
8) Van Horn’s letter to Solis admitting the inaccurate specifications had no complaints about Solis’ work and no suggestion that he should stop work on the project; and
9) the problems and delays on the job were caused by unforeseen problems or by Van Horn, Ortiz and other City agencies.
Reynaldo Roberto Esparza testified that
1) he was the former son-in-law of Ortiz, who was working for Van Horn;
2) Ortiz told him that he and Escudero, Townsend (City Manager), and Van Horn had a plan to put pressure on Solis until he could be removed from the project; and
3) a certain bonus check was paid to Ortiz presumably for putting the pressure on Solis which would cause his removal.
The record reflects evidence of a questionable agreement reached by Van Horn, Escudero, and Porras pertaining to the requirements to be imposed on Solis for relaying some pipe in the project in question. The agreement was questionable because it was reached in the absence of Solis, written by Van Horn, and reached on the same day Porras was appointed by the bankruptcy court to be an impartial independent engineer to make an independent impartial judgment as to what corrective measures were needed to be done by Solis on the project.
Also, the record reflects the General Provisions, Division C, Section 6, pg. C-14 of the Instructions to Bidders which provides that Ortiz, as the Project Inspector, although authorized to call attention to the contractor of work failures, “will in no case act as foreman or perform other duties for the Contractor, nor shall he interfere with the management of the work.”
During the trial, the argument to the trial court which resulted in the directed verdict as to the tortious interference claim was that the actions of Van Horn and LAN were privileged and thus justified. The court’s opinion not only embraces this argument but contends further.
Relying on Greyhound Corporation v. Commercial Casualty Ins. Co., 259 App.Div. 317, 19 N.Y.S.2d 239, 242 (1940), the court concludes that the instructed verdict was justified because Van Horn and LAN were “agents of the City.” Greyhound Corporation does hold that an action for tortious interference will not lie against a servant who while acting within the scope of his authority causes the breach of a master’s contract. This is so, because a cause of action against the master for wrongfully procuring the breach of his own contract will not lie, but an action for breach of contract would be appropriate. However, Greyhound Corporation does not suggest that this “servant rule” applies in any way to an independent contractor.
We note that Van Horn and LAN argued to the trial judge that “there is no contractual relationship here” and “we’re not a party to that contract [and] have no responsibility to Mr. Solis for that contract.” Further, Van Horn and LAN never have contended during the trial or in their appellate briefs that they were servants of the City of Laredo. The City of Laredo and Victor M. Solis, Underground Utility and Paving Company, Inc. are the only parties to the contract in question. Also, the General Provisions, Division C. Section 6, pg. C-12 of the Instructions to Bidders which apply to all the parties herein provide that Van Horn, as the project engineer “will act *539as referee in all questions arising under the terms of the contract between the parties thereto, and his decisions shall be final and binding.” It is utterly inconsistent for a servant to act as a final impartial referee between his master and another and still be acting in the furtherance of his master’s interests. Not only do Van Horn and LAN deny they are servants in the record, and fail to contend they are servants on appeal, but the record clearly shows them to be independent contractors which excludes them from the “servant rule” cited by the court.
The court then concludes that Solis’ tor-tious interference cause of action against Van Horn and LAN must fail as a matter of law because the interference was privileged and thus justified. Respectfully, the reliance on Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80, 91 (Tex.1976) and Terry v. Zachry, 272 S.W.2d 157 (Tex.Civ.App.—San Antonio 1954, writ ref’d n.r.e.) is misplaced.
In Terry, the plaintiff alleged tortious interference of Mr. Zachry, Chairman of the Board for the H.B. Zachry Company, because Zachry induced the cooperation to contest an unliquidated claim. In sustaining a summary judgment favorable to Za-chry, the court concluded that “[a] wilful refusal to pay an unliquidated claim is not the basis for a.separate and independent suit against the corporate officers who induced such action. 62 C.J. Torts § 57, 86 C.J.S. Torts § 45.” Terry v. Zachry, supra at 159, 160.
In Black Lake, Black Lake Pipe Line Co. entered into a prime contract with MPD for construction of 125 miles of pipeline. MPD entered into a subcontract with Union to provide construction of a 67 mile stretch of pipeline by a certain date. Because the work was behind schedule, Black Lake required additional men and equipment in accordance with the prime contract to accommodate the schedule. This requirement in turn forced MPD to require its subcontractor (Union) to furnish additional men and equipment. Union sued Black Lake for contract interference alleging the cost of additional men and equipment as damages. The Texas Supreme Court rejected the contract interference theory “because there [was] no allegation that Union’s rights under its subcontract with MPD were affected by Black Lake’s failure to furnish the line pipe.” Black Lake Pipe Line Co. v. Union Const., supra at 91. However, we note that the issue of whether Black Lake’s requirement for additional men and equipment was arbitrary and capricious was submitted to the jury by the trial court without any criticism from the supreme court.1
Clearly, these cases are distinguishable from the case before us. Terry and Black Lake are not directed verdict cases, and were decided on the basis of a defective cause of action in Terry, and defective pleadings in Black Lake. These cases do not support the holding of the court.
The case before us involves pleadings alleging tortious interference and civil conspiracy by Van Horn and LAN. And the evidence in the record favorable to Solis required that the issues be submitted to the jury.
That one who willfully and without legal justification or excuse interferes so as to bring about a breach of a contract between others is guilty of an actionable wrong is no longer a question in this court.
Lytle v. Galveston, H. & S.A. Ry. Co., 100 Tex. 292, 99 S.W. 396, 397 (1907).
To establish the necessary elements of her claim of tortious interference, [Plaintiff] had to show (1) that the defendant maliciously interfered with the contractual relationship and (2), without legal justification or excuse.
Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex.1984).2
*540In sustaining the directed verdict on the basis that the actions of Van Horn and LAN were privileged, the court has concluded that as a matter of law, the actions of Van Horn and LAN were not arbitrary and capricious, were with legal justification and excuse, were a bona fide exercise of the rights of Van Horn, and were the actions of one possessing an equal or superi- or interest to those of Solis. It appears that under the circumstances of this case, issues of fact existed as to
1) whether the action of Van Horn and LAN were arbitrary and capricious and prompted by a conspiracy;
2) whether the actions of Van Horn and LAN were without legal justification or excuse;
3) whether the actions of Van Horn and LAN were a bona fide exercise of their rights;
4) whether Van Horn and LAN had an equal or superior interest to Solis, who unlike them, was an actual party to the contract in question.
Since these issues of fact were raised by the evidence favorable to Solis, the directed verdict as to the tortious interference was improper.
The court sustains the directed verdict as to the conspiracy claims of Solis because there was “no proof that Van Horn and Ortiz committed unlawful acts or that they used unlawful means to accomplish a lawful purpose.”
The “no evidence” argument now embraced by the court as to the conspiracy claim was not argued to the trial judge in obtaining the directed verdict. However, a judgment may be sustained on grounds other than those apparently relied upon by the trial judge. But the evidence favorable to Solis, raises the question of whether Van Horn and Ortiz conspired to willfully and wrongfully bring about a breach of the contract. This has been declared “an actionable wrong” by the Texas Supreme Court, and is thus unlawful. Lytle v. Galveston, supra. Consequently since fact is*541-543sues were raised involving the conspiracy claim also, they should have likewise been resolved by the jury. Nor is it suggested that the jury would be obligated to find favorably on any issue discussed, but merely that Solis was entitled to have the jury decide these issues one way or another.
This court, it appears, would deny Solis his tortious interference and conspiracy causes of action against Van Horn and LAN as a matter of law regardless of the circumstances. Solis could have performed his work to a perfection, and as long as Van Horn and LAN had the right to reject his work and recommend his termination, they could do so, and Solis would have no recourse. The court has in effect eliminated the necessity for Van Horn to have acted justifiably and in good faith in order to escape liability for any interference.
The court further holds that although the refusal of the trial judge to admit the prior testimony of Tim Donnell may have been error, it was harmless error. They contend that because the same evidence was presented by the testimony of Solis himself, it is cumulative and therefore harmless. Evidence from a disinterested person which corroborates the testimony of the plaintiff can hardly be considered cumulative and harmless when the results in the trial were a directed verdict against the plaintiff.
I would reverse the judgment and remand the cause for a new trial.
. As in Black Lake, recent privileged interference cases have involved the submission of the privilege issues to the jury without criticism by the appellate courts. Marathon Oil Co. v. Sterner, 745 S.W.2d 420 (Tex.App.—Houston [14th Dist.] 1988, no writ); Rural Development, Inc. v. L.T. Stone, 700 S.W.2d 661 (Tex.App.—Corpus Christi 1985, writ refd n.r.e.).
. Before Sakowitz, Inc., the elements of a claim for tortious interference were: 1) that a con*540tract existed that was subject to interference, 2) the act of interference was willful and intentional, 3) such intentional act was a proximate cause of the plaintiffs damages, and 4) actual damages or loss occurred. Bellefonte Underwriters Insurance Co. v. Brown, 663 S.W.2d 562, 573 (Tex.App.—Houston [14th Dist.] 1983), modified, 704 S.W.2d 742 (Tex.1986); Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.—El Paso 1977, writ ref'd n.r.e.); Sakowitz, Inc., supra at 108 (Dissent).
If the Supreme Court intended to dramatically change the elements of tortious interference, it was accomplished rather undramatically. We note that the court’s opinion fails to state that the elements are being changed or that any prior inconsistent cases are now overruled. In fact, the Court, in sustaining the summary judgment appears to agree with the dissent that privileged interference is still an affirmative defense stating:
"We hold that Sakowitz [movant] made a showing of its legal justification, but Steck [non-movant] produced no summary judgment evidence to raise a fact question regarding the lack of justification...."
Sakowitz, Inc., supra at 107, 108.
An inconsistency appears in contending both, that the burden is upon the plaintiff to show that the interference by the defendant was without justification or excuse; and that also, the burden is upon the defendants in a summary judgment to show his actions were privileged and justified, as required of all cases involving affirmative defenses. Unless the elements of - tortious interference were in fact dramatically changed, the long established rule by the Supreme Court in determining affirmative defenses would clearly identify privileged interference as a "matter constituting an avoidance." TEX. R.CIV.P. 94; W.L. Moody & Co. v. Rowland, 100 Tex. 363, 99 S.W. 1112, 1115 (1907); Moulton v. Alamo Ambulance Service, Inc. 414 S.W.2d 444, 448 (Tex.1967). This apparent conflict has given rise to the very strong argument in the dissent by three Supreme Court justices setting out a persuasive line of supporting authority for the proposition that privileged interference is an affirmative defense and should be plead and proved. Sakowitz, Inc., supra at 109 (Dissent); Tippett v. Hart, 497 S.W.2d 606, 613 (Tex.Civ.App.—Amarillo) writ ref'd n.r.e., per curiam, 501 S.W.2d 874 (Tex.1973); Bellefonte Underwriters v. Brown, supra at 573-74; Armendariz v. Mora, supra at 405; See also W. PROSSER, The Law of Torts § 129 (4th Ed.1971).
In this case, although Van Horn and LAN filed general denials and failed to specifically plead privileged interference as an affirmative defense, the record reflects that the issue was tried by consent and was therefore available to Van Horn and LAN. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.1967).
Nevertheless, the directed verdict was improper whether the elements of tortious interference were as reflected by the holdings prior or subsequent to Sakowitz, Inc.