Opinion
4-3-1897
GLENCOE SAND & GRAVEL CO. v. HUDSON BROS. COMMISSION CO. et al.
R. M. Nichols, for appellant. John W. Noble, Geo. H. Shields, and Wm. G. Pettus, for respondents.
1. Plaintiff insists that the petition states a cause of action which authorizes a recovery as for the conversion of the gravel and sand. That contention cannot be sustained, for the reason that an action of trover, or an equivalent action under the Code, only lies for the conversion of personal property. The charge of the petition is that on the land were "large and valuable deposits of sand and gravel," which, on account of the interference of defendants, plaintiff was unable to market. Sand and gravel, while in its original bed, is as much a part of the realty as the earth itself. After it has been mined or separated from the land, it may become the subject of conversion; not before. The petition makes no charge of the conversion of sand or gravel after its separation from the land. 26 Am. & Eng. Enc. Law, p. 774, par. 5, and cases cited.
2. It is insisted in the next place that defendant is answerable in damages to plaintiff for the injurious consequences of inducing the railway company to violate its contract to carry to market the gravel and sand taken from the land. This is really the ground relied upon for recovery. When plaintiff and the carrier entered into the contract, each looked to the other for its faithful performance, and to no one else. We can see nothing more in this case, as stated, than a simple voluntary breach of contract by the railroad company. We are unable to see, in principle, that there is a difference between a breach induced by the advice, persuasion, or even threats, of a third party, and one caused by circumstances connected with the business or service the party contracted to do. In either case the breach of contract would be voluntary. There is no charge in the petition that the railroad company was caused to refuse to carry out its contract, or was rendered unable to do so, contrary to its will, by the fraud, deceit, or coercion of defendant. The direct and proximate cause of plaintiff's damage is the voluntary breach of contract on the part of the carrier, and resort must be had to it for compensation for the injurious consequences. We are also unable to see that defendant committed a legal wrong in giving notice to the railroad company of its claims to the sand and gravel. Indeed, circumstances may have existed which made it equitable and just that it should have done so. At least, it had the undoubted legal right to protect its property interests in that manner. If defendant committed no legal wrong, though his act resulted in damage to plaintiff, the law affords no remedy. It is damnum absque injuria. The motive of defendant is immaterial. Anderson v. Public Schools, 122 Mo. 67, 27 S. W. 610. Plaintiff relies altogether on the doctrine announced in Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 Q. B. Div. 333; Walker v. Cronin, 107 Mass. 555; and cases following them. The question really decided in those cases is stated in the opinion in the case last cited as follows: "It is the familiar and well-established doctrine of the law upon the relation of master and servant that one who entices away a servant, or induces him to leave his master, may be held liable in damages therefor, provided there exists a valid contract for continued service, known to defendant." In Lumley v. Gye, supra, the majority of the court held that the relation of master and servant existed between the parties to the contract, and defendant was answerable in damages for inducing one of the parties to break her contract. But Coleridge, J. (afterwards lord chief justice), dissented, holding that the relation of master and servant did not exist, within the meaning of the statute of laborers (23 Edw. III.), in which, he said, the law had its origin. After an able argument he reached this conclusion: "Merely to induce or procure a free contracting party to break his covenant, whether done maliciously or not, to the damage of another, for the reasons I have stated, is not actionable." Judge Cooley states the same rule. He says: "An action cannot, in general, be maintained for inducing a third person to break his contract with the plaintiff; the consequences, after all, being only a broken contract, for which the party to the contract may have his remedy by suing upon it." Cooley, Torts, 497; Chambers v. Baldwin, 91 Ky. 122, 15 S. W. 57; Bourlier v. Macauley, 91 Ky. 135, 15 S. W. 60; Boyson v. Thorn, 98 Cal. 579, 33 Pac. 492; McCann v. Wolff, 28 Mo. App. 447. An inquiry whether public policy requires a different rule to govern contracts between master and servant in respect to personal services to be rendered is not in this case, for it cannot be said that the contract in question created the relation of master and servant between plaintiff and the railroad company. To hold that a carrier is the servant or employé of the shipper would revolutionize the whole law relating to the duties, obligations, and liabilities of common carriers. The judgment is affirmed. All concur.