Payne v. Western & Atlantic Railroad

Ingersoll, Sp. J.,

delivered the opinion of the court.

The question in this case is as to the sufficiency of the declaration. The circuit judge sustained the-demurrer and' dismissed the suit. The Referees recommend reversal of the judgment. The suit is against a railroad company and its general agent, and the declaration of plaintiff is as follows:

“That, on the 16th day of February, 1883, and for many years previous thereto and continually since, plaintiff bus been engaged in business as a merchant in Chaitanooga, Tennessee, and operating a store on Market sira,-.; at and near the depot, - car-shed, railroad track and yard of the defendant, the Western & Atlantic . Ralilroad Company. Plaintiff has at all tim.es sustained a good character.; and by close atten-‘ tion to business, and honest and fair dealing plaintiff had, on the 16th of February, 1883, built up and fully established a large, extensive and profitable business; the defendant, the Western & Atlantic Railroad Company, is a large and wealthy corporation, operating and controlling a line of railroad leading from Chattanooga, Tennessee, to Atlanta, Georgia. That said corporation employs a very large number of' hands both in and out of. Chattanooga; there are also four other railroads coming into Chattanooga, all intimately associated with the defendant railroad com-, pany in business relations. Plaintiff’s store is located nearly in the center of five railroad termini leading into the city. Plaintiff had built up and was enjoying, on the day and year aforesaid, a large, exten-tensive and profitable business with the employes of all the aforesaid railroads; especially was he selling many goods to and doing a large business with the agents and employes of the defendant railroad compauy both in Chattanooga and along th<> lin< of said railroad; he had also built up a large trade along the line of said railroad, both buying and selling goods to persons living along the line of said road, other than employes. The defendant, J. C. Anderson, is the general agent of the defmuhmt railroad company at Chattanooga, having in í-l,sr‘ge and controlling the employes in Chattanooga, Boy <• Station and elsewhere along the line of said railro..And the said plaintiff further declares that. wbife_ so engaged in his legitimate and profitable business * * ■* * the said defendants wickedly utilo .rally, fraudulently and maliciously conspired and coni 'derated together out of malice, ill-will and wicked fi - bag to break up, injure, damage and ruin plaintiff in his business; and, to that end and for that purpose, they, the said defendants, on the day and year aforesaid, did make, publish and circulate the following scandalous and injurious order, threat, command and paper writing, to-wit:

February, 16, 1883.

J. T. Robinson, Y. M. — Any employe of this company on Chattanooga pay-roll who trades with L. Payne from this date will be discharged. Notify all in your department. J. C. Andeeson, Agent.

The said J. T. Robinson is and was yard-master in the employ of the defendant railroad company, controlling and having under him a large number of hands. Like orders and commands were addressed and sent to other heads of departments of said railroad ; and the same were posted and published by defendants and read and commented upon all along the lino of said, railroad among and by plaintiff’s patrons and customers. Plaintiff further declares that, by reason of said. order and command, and other means used by defendants he was brought into reproach, disrepute, suspicion and. distrust, and his business broken up 'and* ruined.^ The employes of the defendant railroad company deterred and intimidated by the threat contained in said illegal command and order, quit trading with plaintiff because of the illegal and malicious interference, threats and combination of defendants, and his business ffar and near has been greatly damaged and ruined, to his damage,” etc.

In- the second count the plaintiff, setting forth, as in the first, his lawful a\nd lucrative business and good character and repute as^ a merchant, and the power, wealth and influence of the railroad company and its employment of many persons, who traded with him, but omitting any averment of Anderson’s agency, complains, that “the defendants unlawfully, wickedly, wantonly, maliciously and out of their malice towards him, the plaintiff, undertook by means of threats, insinuation, innuendoes, slander and other means to oppress, injure, damage and ruin plaintiff in his legitimate business and destroy his character; and :by the means and for the purpose aforesaid, and, with said wicked motive, did oppress, injure, damage and ruin plaintiff’s business, character and reputation; that the said defendants threatened, among other things, to discharge any of the employes of said railroad company who should 'trade with plaintiff, and this was published far and near by defendants, whereby not only said employes were deterred from trading with him, but he was brQflght into reproach, disrepute and suspicion, and lost his other trade and custom,” etc.

The difference between the two counts is: First: In the first Anderson is described as the Company’s agent; and in the second he is not. Second: In the first the posted notice is set out ipsissimis verbis; while in the second its publication and purport are alleged in general terms.

The demurrer of defendants contains the following grounds of objection to the declaration:

First: Defendants had the right to discharge employes because they traded with plaintiff, or for any other cause.

Second: If they had ifo such right, the act was merely a breach of the contract of employment for which plaintiff had no right of action.

Third: Plaintiff had no vested right in the trade of defendants’ employes; wherefore they had the right to prefer employment by defendants to trading with plaintiff, and consequently to withdraw their trade from him, and he could not sue defendants therefor.

Fourth: The order complained of was not libelous in itself, nor is it made so by innuendo, nor is there any matter alleged which is actionable.

Fifth: The railroad company demurs, because it could not be liable for the unauthorized wrongful act of its agent, Anderson, not within the line of his duty.

Sixth: Anderson had a right to hire and discharge employes without direction from any one, and for any wrong done defendants would be liable only to the employes so discharged.

The only distinctive feature of the last ground of demurrer seems to be the assertion of Anderson’s right to hire and discharge employes without direction from the railroad company, the latter part, asserting the limitation of liability to the employe for wrong done, being embraced in a former head of demurrer. The peculiar ground relied on in this head is obnoxious to the objection that it is a speaking demurrer, for in the second count of declaration it does not appear that Anderson was even the agent of the railroad company; and in the first, though the agency is alleged, it does not appear that he possessed the extent of authority asserted for him in the demurrer. Wherein it is peculiar, therefore, this ground of demurrer is not well taken.

The fifth ground above set forth is untenable as •to the second count, because of the absence therefrom mf any allegation of the agency of Anderson; ' and as to the first count, because first, instead of wanting in an averment of the authority of Anderson as agent of the company, it alleges expressly a combination and conspiracy between principal and agent to do the alleged wrong to . plaintiff, and a participation by both in the act complained of; and second, corporations are liable for the tortious acts of its agents within the apparent scope of corporate powers, which are done in the interest of the corporation and in pursuance of any general or special authority: Cooley on Torts, 119, 120.

The objection to the declaration as one for libel of slander is well taken. The published order set out in the first count not only contains no libelous statement, but it has in it no reference even, direct or indirect, to the character of plaintiff. ■ There is no innuendo in the count, and it is not easy to see what statements or references therein contained would support one, and this may explain its absence. Let it suffice, that Ho libel or slander is made out directly or by imputation even, in the count which sets out the writing. The second count bears no resemblance to •a declaration in libel or slander. It sets out no writing or spoken words even, -but merely contains a general charge that defendants undertook by means of “insinuations, innuendos, slander and other means to ^oppress, injure,” etc. Malice is freely charged, and the charge is frequently repeated in both counts. But there is no suggestion even of any false statement, written or spoken by defendants Or either of them. Without this, of course,' no action for libel or slander can be maintained; for no amount of malice will compensate for the- absence of falsehood in the legal requirements of this kind of action. The suit is not maintainable, therefore, as an action of libel or slander, either to personal character or business reputation. It must stand, if at all, upon the alleged malicious and unlawful conspiracy and combination, and wicked conduct of defendants, for the purpose and with the effect to deprive plaintiff of his customers, and thus oppress,, injure and ruin him in his trade.

This, rather than libel or slander, is the particular-wrong and injury specially relied on by plaintiff. As concisely put in argument by his counsel:

“We have brought a suit to recover damages because defendants, by threats and intimidations, prevented people from trading at our store.”

The full scope of his argument is: -

“ The declaration sets up, that plaintiff was pursuing a lawful business — that of a merchant; and that defendants, out of malice and ill-will toward him, entered into an unlawful confederation and conspiracy to break him up; and that pursuant to such unlawful purpose, by means of threats, force and intimidation, they drove his customers from him and succeeded in breaking up his business.”

“Lawful competition is allowed, but not a conspiracy forcibly and by threats and intimidation to-interfere with another’s legitimate business.”

“ The good-will of a business is the subject of acquired right and can be bought and sold as other property.”

“ Defendants not only maliciously invaded and weakened plaintiff’s legal right to the good-will in his business, but by their threats, intimidation and force destroyed this acquired right.”

“He, who invades, weakens or.destroys a legal right maliciously, is liable in damages therefor.”

“Every malicious act is wrongful of itself in the eye of the law; and, if it cause damage or hurt to another, it is a tort, and may be made the foundation of an action.”

“When a violent or malicious act, is done to a man’s occupation, profession or way of getting a livelihood then an action lies in all cases.”.

The defendants did do a malicious, injurious act to plaintiff’s occupation, and hence they are liable.”

To this forcible statement of plaintiff’s case, defendant’s answer in effect is: We have a right to employ, or not employ, when and whom; we choose. We may discharge our employes, all or singly, whenever' we choose; with or without reason; because they trade with plaintiff ■ or do not trade with him; and, if the employes are injured or wronged thereby, they may sue; but plaintiff cannot. It is purely a matter of contract between the company and its employes; and, if a contract has been broken, only a party to the 'contract, or one in privity, can sue for its breach. Plaintiff shows no such privity, and therefore cannot maintain this action, unless defendant has done some unlawful act, which caused the injury complained of; tbe only act'’ complained of is the notice to hands that they will be discharged if they J trade with plaintiff. This, being merely the exercise j of an undoubted right by defendant, cannot give ! plaintiff a right of action, even though the act was i maliciously done, and the plaintiff suffered injury there- !■' from; because ' malice does not furnish ground for j civil action. Wrongful acts alone are actionable. And, as to the conspiracy alleged, though it may be action-i abe, it does not become so until some wrongful act is Í done under it; and, since the only act alleged here is ■' not .unlawful, but permissible to defendant, this action | is not maintainable for conspiracy, for want of_.the wrongful act done under it; lacking this, the suit ' must fail, though there be a conspiracy and malice toward the plaintiff, and, in consequence thereof, and' of the laioful act of defendants thereunder, plaintiff lost his customers and profits, and so failed in his business.

Plaintiff!, in reply to this, besides asserting the correctness of his original position, denies that the defendants had the right to discharge or/ threaten to discharge employes for trading with him, localise the concession of such authority and its exercise by strong corporations and large manufacturers would unfairly defeat and destroy competition, and tend to create monopoly in trade; whereas, the law should discourage the latter and foster the former. Plaintiff also insists, that, while our decisions furnish no precedent for his suit, and we have no statute whatever upon the subject, the cases cited by Mr. Addison in the first volume of bis work on Torts, chapter 1, section 1, afford abundant authority for this action.

The novelty, interest and importance of the questions demand a careful examination of the cases and the principles involved. The case turns upon the common law. The first question is: Is it unlawful for one person, or a number of persons in conspiracy, to-threaten to discharge employes if they trade with a certain merchant? Would it be unlawful to discharge them for such reason ? If not, it surely would not/ be unlawful to “threaten” it.

If the employes are engaged for fixed terms, it may be assumed that a discharge by the employer for such a' reason would be unwarranted, and would give the employe an action for breach of contract. But no one else, except a privy, could complain of the breach of contract, and the ground of the employe’s action would be the refusal of the employer to pay him for the period promised in the contract of service: If the service is terminable at the option of either party, it is plain no action would lie even to the employe; for either party may terminate the service, for any cause, good or bad, or without cause, and the other cannot complain in law! Much less could a stranger complain. No action could accrue either to employe or stranger for breach of contract; for no contract is broken. If the act is unlawful it must be on other grounds than breach of contract, as, that it unjustly deprives plaintiff of customers and trade to ' which his fair dealing entitles him, and thus destroys his business.

For any one to do this without causeáis censurable x^and unjust. But is it legally wrong? Is it unlawful? * May I not refuse to trade with any one? May I not forbid my family to trade with any one? May I not dismiss my domestic servant for dealing, or even visiting, where I forbid? And if my domestic, why not my 'farm-hand, or my mechanic, or teamster? And, if one of them, then why not all four? And, if all four, why not a hundred or a thousand of them? The principle is not changed or affected by the number. And, if it were, who should say how many it would be lawful and how many unlawful to forbid? Nor can it be better determined by effect than by number. To keep away one- customer might not perceptibly affect the merchant’s trade; deprived of a hundred of them he might fail in business. On the contrary, my own dealings may be so important that, if I cease to trade with ¡him, he must close his doors. Shall my act in keeping away a hundred of my employes be unlawful, because it breaks up the merchant’s business, and yet it be lawful for me to accomplish the same result by withholding my own custom ?

'Obviously the law can adopt and maintain no such standards for judging human conduct; and men must be left, without interference to buy and sell where' they please, and to discharge or retain * employes at will for good cause or for no cause, <5r even for bad cause without thereby being guilty of an unlawful act per se. It is a right which an employe may exercise in the same way, to the same extent, for thp same cause or want of cause as the employer. He may refuse to work for a man or company, that trades with any obnoxious person, or does other things which he dislikes. He may persuade his fellows, and the employer may lose all his hands and be compelled to close his doors; or he may yield to the demand and withdraw his custom or cease his dealings, and the obnoxious person be thus injured or wrecked in business. Can it be pretented that for this either of the injured parties has a right of action against the employes? Great loss may result, indeed has often resulted from such conduct; but loss alone gives no right of action. Great corporations, strong associations, and wealthy individuals may thus do great mischief and wrong; may make and break merchants at will; may crush out competition, and foster monopolies, and thus greatly injure individuals and the public; but power is inherent in size and strength and wealth; and the law- cannot set bound to it, unless it is exercised illegally. Then it is rer strained because of its illegality, not because of its quantity or quality. The great and rich and powerful are guaranteed the same liberty and privilege as the poor and weak. All may buy and sell when they choose; they may refuse to employ or dismiss whom they choose, without being thereby, guilty of a legal wrong, though it may seriously injure and even ruin others. '/

. Railroad corporations have in this matter the same right enjoyed by manufacturers, merchants, lawyers and farmers. All may dismiss their employes at will, be they many or few, for good cause, for no cause 'j or even for canse morally wrong, without being thereby ■ ^guilty of legal wrong. A fortiori they may ¡ “ threaten ” to discharge them without thereby doing-i an illegal act, per se. The sufficient and conclusive-answer to the many plausible arguments to the contrary, portraying the evil to workmen and to others-from the exercise of such authority by the great and strong, is: They have the right to discharge their employes. The law cannot compel them to employ workmen, nor to keep them, employed. If they break contracts with workmen they are answerable only to them; if in the act of discharging them, they break no contract, then no one can sue for loss-suffered thereby. Trade is free; so is employment, The law leaves employer and employe to make their-own contracts; and these, when made, it will enforce; beyond this it does not go. Either the employer^ or-employe may terminate the relation at will, and the law will not interfere, except for contract broken. This secures to all civil and industrial liberty. A contrary rule would lead to a judicial tyranny as arbitrary,, irresponsible and intolerable as that exercised by Seroggs and Jeffreys.

But plaintiff says that the defendants wickedly and' maliciously combined and confederated for the unlawful purpose of causing plaintiff’s customers, by means of' threats and intimidation, to leave off trading with him; and that the unlawful purpose was ■ accomplished by these means, .and thus plaintiff’s business-was ruined and he ■ caused to suffer great pecuniary loss y and he* urges that defendants are .liable in damages-therefor, because every act done fraudulently or maliciously and for the purpose and with the effect of injuring another in his lawful business gives good cause of action; and so the Referees have reported; and therefore they recommend the reversal of the judgment sustaining the demurrer.

If defendants, by means of “ threats and intimida-tions,” have driven away plaintiff’s customers and ^ thus destroyed his trade, they have injured him by an unlawful act, and are liable to him in damages, , whether they did it wickedly and maliciously or not. I Eor it is unlawful to threaten and intimidate one’s ( customers; and the loss of trade is the natural and ¡I proximate result of such acts. But “threats and in- /j timidations” must be taken in their legal sense. In law a threat is a declaration of an intention or de-| termination to injure another by the commission of some unlawful act; and ah intimidation is the act of ^ making one timid or fearful by such declaration. If' the act intended to be done is not unlawful, then the declaration is not a threat in law, and the effect thereof is not intimidation in a legal sense. So too of the alleged conspiracy. A conspiracy is an agreement between two or more persons to do an unlawful acti" If the act to be done is not unlawful, then the agreement or combination is not a conspiracy. The ques-, tion then is, what were the acts done, or intended or \ agreed to be done, by which the trading was prevented?

In the second count, which plaintiff specially relies-on to sustain this view of his case, after charging generally the use of threats and intimidation, he specifies-. •as follows: “The said defendants threatened, among other things, to discharge any man in the employ of said railroad company who should trade with plaintiff, and this threat was published,” etc. This is the only “threat or intimidation” specified. But. this act was not unlawful as we have seen, and to Enounce a determination to do ' it and thus deter customers from .¡trading with' plaintiff, was not “threat or intimidation” i in a .legal sense. From this it is fairly inferable that, in this count as in the first, plaintiff, though he uses the general terms “unlawful and malicious threats,” refers only to the so-called “ threat” to discharge employes. and rests his case upon it. Presumably he has particularized the most wrongful act, or, at the most, the othei* unlawful and malicious acts” are of the same, and no worse character than that specified. This act, he says, was done by the defendants wickedly and maliciously with the intent and effect of breaking up his business.

The question then is: Is an act hot unlawful, .rendered actionable to the one suffering injury therefrom,. because it is committed wilfully, .wickedly and maliciously, and in pursuance of a conspiracy to do the injury suffered ? Does one render himself liable in damages for maliciously and wickedly exercising his rights or ¡denouncing his intention of so doing, if thereby he injures another?

The cases relied on by plaintiff, cited by Mr. Addison in his work on Torts, sections 20, 22, where tenants were driven away from holdings, scholars frightened from school, persons prevented from trading at ■one’s store or with bis vessel, buyers and workmen driven from a quarry, do not serve as precedents, for the reason that in all of them the defendants either committed or threatened unlawful acts. In most of them violence was used or menaced; in some, statutory misdemeanors were committed, in others fraud, duress or libel was resorted to. This relieved the cases of the difficulty or doubt which exists in this, where there is no libel, violence or broken statute. In section 40, however, it is declared broadly, that “every malicious act is wrongful in itself in the eye of the law, and if it causes hurt or damage to another it is a tort, and may be made the foundation of an action.” Upon this plaintiff relies, and upon it the Referees have based their report; .and if this broad statement contains a correct exposition of the law they are right, and the demurrer should be overruled, for the declaration abounds in charges of malice and wrong. But is this the law?

To answer this correctly it must first be understood what is meant by “malicious act.” In common parlance it is an act proceeding from hatred or ill-will, or dictated by malice, or done with wicked or mischievous intentions or motives. But surely this cannot be the, sense in which the phrase is employed by Addison;-- for if it were, then my neighbor would be liable to’ me, if from dll-will or wicked motive he refused to let me get water at his spring; or to make a road for myself across his farm, or locked his pump or his gate against me, or built a fence on his own land .across my path; or built his store or shop or a high fence on his own land in such close proximity to my windows as to exclude light and view; or digged on his-lot below the foundation of my house so as to endanger it. It is unreasonable that actions should be maintained for any of these things. For, though my neighbor is causing me hurt, and that too from wicked motives, and is thus violating the moral law, he is-only exercising his undoubted right to use his own for himself and deny me all privilege in it; and this-the law does not punish as has been often ruled in courts of the highest character: Story v. Odin, 12 Mass., 157; Mahan v. Brown, 13 Wend., 261; Auburn & Cato Railroad Company v. Douglass, 5 Seld., 447; Lasala v. Holbrook, 4 Paige, 169; Thurston v. Hancock, 12 Mass., 220.

Judge Cooley, in his work on Torts, page 278, says: “ It is a part of every man’s civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern.” And. again on page 688: “The exercise by one of his legal right cannot be a legal wrong to another. * * * Whatever one has a right to do another can have no right to complain of.” This he considers a mere truism.

Baron Parke said in Stevenson v. Newnham, 13 C. B., 285: “An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent.” And Judge Black, in Jenkins v. Fowler, 24 Penn. St., 308, declares: “Any transaction which would be lawful and proper, if the parties were frieuds, cannot be made the foundation of action merely because they happened to be enemies. As long as a man keeps himself within the law by doing no aet which violates it, we must leave his motives to Him: who searches .the heart.” Judge Cooper, in accordance with these views, has declared in Macey v. Childress, 2 Tenn. Ch., 442: “It is no defense to a legal demand, instituted [in the mode prescribed by law, that the plaintiff is actuated ¡by improper motives. The motive of a suitor cannot be inquired into. Were it otherwise, nearly every suit would degenerate into a wrangle over motives and feelings.” The question""' was ably argued and received elaborate consideration in the Supreme Court of Maine in the recent case of Heywood v. Tillson, 46 Am. Rep., 373; wherein it was decided without dissent that no action lies by the owner of a house against one who maliciously refuses to employ any tenant of such house and thus prevents the renting. Indeed, the contrary ruling would lead to evils innumerable." It would be unendurable that ■our courts of law should be perverted to the trial of the motives of men who confessedly had done no unlawful act. It is suggestive of the days of “constructive treason.”

Upon both reason and authority it seems obvious, therefore, that the phrase “malicious act” cannot be used by Mr. Addison in this connection in the popular signification, as understood and applied by the Referees in this case •, or if so used by him it is not =a correct statement of the law;

In another sense it is correct. Prof. Greenleaf, in his 2nd volume on Evidence, section 453 (2), thus defines a malicious act: “In a legal sense, any unlawful act, done wilfully and purposely to the injury of another, is, as against .that person, malicious.” To determine then, whether a “malicious act” is “wrongful,” in the legal sense, and therefore actionable, we must first determine whether .it is unlawful. But if unlawlul, and injurious, it is actionable, irrespective of the motive; and whether malicious or not, if not unlawful and injurious, then it is not actionable, even though malicious and wicked. -

Plaintiff appeals with confidence to the legal maxim: There is no wrong without its remedy. Far be it from us to shake the public and professional confidence in this venerable maxim of the English common-' law. Its influence has long been and will' long continue most wholesome in preventing the private redress of real and imaginary wrongs. But as it is a legal maxim, it must be taken in a legal sense. So taken it can obviously mean no more than that there is a legal remedy for every legal wrong, i. e., every injury suffered as the consequence of an unlawful act, or a lawful act done in an unlawful manner. Neither is shown here. Defendants have merely warned their employes not to trade with plaintiff; if they do they must give up their employment. They had the right to discharge them on this ground; it was not unlawful, but highly proper, therefore, to give them warning of their intention. The manner of giving the warning was not unlawful or even censurable. The posted notice con-tamed no word of slander, libel or reproach .upon the character of plaintiff; no charge or insinuation that •he was dishonest or unfair in his dealing. Omitting any attack on plaintiff’s character as a man or trader, defendants, in the usual manner, and in a few harmless words, told its employes to stop trading with him or they must stop working for them. The common law does not forbid such an act, nor has our Legislature yet endeavored to make such an act unlawful by statute, as has been done in some of the States, and probably in England. No legal wrong has been done; therefore there is no legal remedy. For the moral wrong of the act, if there be any, defendants may be called to account in another tribunal. Courts administering the civil law cannot punish sin or wickedness unless it be committed in violation of ’ the civil law, which is the measure of their jurisdiction.

Nor will the maxim “ sie utere tuo, ut alienum non Icedas” aid the plaintiff in his contention. As commonly translated,” “So use your own as not to injure another’s,” it is doubtless an orthodox moral precept; and in the law, too, it finds frequent application to the use of surface and running water, and indeed generally to easements and servitudes. But strictly, even then it can mean only: “So use your own that you do no legal damage to another’s.” Legal damage, actionable injury, results only from an unlawful act. This maxim also assumes, that the injury results from an unlawful act, and paraphrased means no more than: “Thou shalt not interfere with the legal rights of another by the commission of an unlawful act;” ■or “Injury from an unlawful act is actionable.” This .affords no aid in this case in determining whether the act complained of is actionable, that is, unlawful. It amounts to no more than the truism: An unlawful act is unlawful. This is a mere begging of the question ; it assumes the very point in controversy, and cannot be taken as a ratio decidendi.

A majority of the court, therefore, conclude that the act done, i. e., the publication of the notice that the company would discharge employes who traded with plaintiff, was not an unlawful threat nor an unlawful act; was not a libel; and, though done wickedly and maliciously, and in pursuance of a wicked design, is still not actionable, because it was not an un- ' lawful act, nor an act done in an unlawful manner.

The report of the Referees will therefore be set aside, and the judgment of the circuit court affirmed.