Buxbom v. Smith

*549 EDMONDS, J., Concurring and Dissenting.

Considering the record in this case, I see no basis for the finding that the respondent is entitled to $4,000 for the loss of his trained organization, supervisors, good will and general damages, or the judgment in so far as it includes that amount. By other findings the court declared that one month after the cancellation of the respondent’s contract for publishing the newspaper, the appellants “purported” to cancel his contract for the distribution of it and “immediately thereafter” employed his distributing crews and supervisors and “appropriated” his distributing organization. This is almost exactly the language of the complaint.

It is beyond question that a person is privileged to hire the employee of another who is not under a contract for future services and may not be held liable for a tort provided there is a bona fide business or competitive purpose in the hiring and the method of obtaining the employee’s services is not unfair. (Gf. Rest., Torts, secs. 766-768; Prosser on Torts [1941] pp. 1015 et seq.) The evidence in the present case shows the justification of a business purpose recognized by this rule. True, there is an additional qualification imposed by the courts before a person may escape liability for an interference with the advantageous business relations of another; the method of interference must be lawful and fair. Use of violence, fraud, or other unfair methods will, in effect, destroy the privilege of interfering. (Rest. Torts, sec. 768(b), and see at p. 74, “Comment on Clause (b): Means of inducement.”) Breach of contract may constitute such an unfair method if its purpose was to obtain another’s employees. The determining question, therefore, is whether there is any evidence that the breach of contract was intended and used for the purpose of obtaining Buxbom’s employees.

There are no allegations in the complaint that the appellants breached either of their contracts for the purpose of interfering with the advantageous relations of Buxbom and his employees. Nor, in my opinion, is there any evidence from which this reasonably may be inferred. Fraud is never presumed; it must be clearly proved and the presumption of fair dealing approximates that of innocence of crime. Very evidently the trial judge drew no inference of fraud or unfair dealing from the testimony presented to him, for the findings do not charge the appellants with any intention *550 to breach the contract for the purpose of facilitating the hiring of Buxbom’s employees.

Moreover, the contract as pleaded and found, includes no provision for a distributing organization. It did not require Buxbom to provide such an organization or to render any personal services; on the contrary, he might have complied with his agreement by subcontracting the entire work to others. And from the evidence it appears that Buxbom’s “distributing organization’’ consisted of boys attending high school who were employed to distribute papers after school hours at a specified rate per thousand. The record also shows that after the distribution contract was canceled, Buxbom had no other work for them. Under these circumstances, the acts charged against the appellants come within the exceptions to the rule.

Although I concur in the conclusion of my associates that the judgment against the appellant Wright should be reversed, for the reasons stated I believe that the judgment as to the appellant Smith should be modified by disallowing the amount awarded for the loss of employees, and as so modified, affirmed.