
    The New York, Chicago & St. Louis Railroad Company v. Schaffer.
    
      Discharged servant cannot require statement of his service■ — - Whether satisfactory or not — From his master — Although unable to obtain employment because of such refusal by employer — Railroad company may lawfully refuse to continue in its employ one engaged in strike, when.
    
    
      1. A master is under no legal obligation to give to his discharged servant a statement of his service and whether or not it was satisfactory; and a discharged railroad employe cannot maintain an action for damages against the company which discharged him for refusal to furnish him with a clearance or statement of the record of his service, although he may have been unable to obtain other employment in consequence of such refusal by the company.
    2. It is the right of every person, natural or artificial, to employ or refuse to employ in his business whomsoever he may wish, and he cannot be called upon to answer for his judgment in that regard by the public or individuals, nor can the motives which prompt his action be considered. A railroad company may lawfully refuse to continue in its employ a person who has engaged in a strike affecting its interests, or who.has shown himself to be negligent, incompetent, inefficient or dishonest.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Huron county.
    In the second cause of action the plaintiff in substance alleges that prior to the first day of January, 1895, he was in the employ of the defendant company, performing the work of a brakeman at the rate of sixty dollars per month, qnd that on or about the latter part of December, 1894, while in the employ of the defendant company he applied for and was granted a leave of absence for about thirty days, and that when he reported for work again on or about the first day of February, 1895, he was informed by the defendant company that he had been discharged; and he avers that he.was discharged from the service of the defendant without any just cause whatever. He says that during the year 1894 there was on many of the railroads in the United States a strike which is commonly known as the A. R. U. strike, and that at the time of this strike, that is, in the ’ summer of 1894, this plaintiff was working for the defendant company as a brakeman in the yards at Bellevue, and took no part in the strike; that he continued to work for the defendant up to the latter part of December, 1894, when he was granted a leave of absence by the defendant. He says that prior to the 6th of August, 1894, the defendant entered into a conspiracy, agreement and understanding with certain other railroad companies having lines of road running into the city of Chicago, and 'also other railroad companies the names of which are unknown to this plaintiff, that they would furnish to each other information as to all of the employes who had commited offenses, or were charged with having committed offenses, or who had quit work during the said strike, and also as .to all their employes who were members of the American Railway Union, and that said companies entered into the further conspiracy, agreement and understanding that such employes of any and all of said companies would not be employed by any of the said companies without the release and consent from the railroad company by which the employe was last employed, commonly called by railroad men a clearance. He avers that the object and purpose of such alleged conspiracy and agreement was to maliciously and willfully interfere with such employes who had previously terminated their employment with or been discharged from the employment of either of said companies.
    Plaintiff further says that he had worked for the defendant company prior to the time of his last employment as above stated, and that when he left that employment he was given a certificate or a statement of his service for the company. There are other allegations in the petition with regard to a custom of the defendant to grant such letters, but these are omitted for the reason that they are not material in the present contention. Plaintiff says that since the conspiracy aforesaid it is impossible for anyone to secure employment unless he first presents the consent of the company for whom he last worked, or a clearance card showing that the applicant was in no way connécted with the said strike; that he has repeatedly asked the officers of said company for such letters or clearance or consent, and that the company has failed and refused to furnish him therewith, and that at the time he so requested the defendant', the defendant promised and agreed to send his record to anyone employing,- or desiring to employ, the defendant, but the plaintiff says that the defendant has failed and refused to furnish the record; that since his discharge he has made application for employment to various railroad companies which have refused to consider his application unless he would first bring the consent of the defendant or a clearance as above mentioned. He further says that the defendant willfully and maliciously and in pursuance of said conspiracy, agreement and understanding, and with intent willfully and maliciously to prevent the plaintiff from securing employ» ment, refused to give the plaintiff the said letters, consent or clearance that would enable him to secure employment in the railroad business, and because thereof, and for no other cause, he has been denied the right to contract for or tale employment of any of the companies of the United States, and been prevented from obtaining employment and supporting himself by his trade o^ occupation. For all of which he claims to have been damaged in the sum of five thousand dollars, and asks- judgment therefor.
    The first causé of action stated in the plaintiff’s second amended petition was demurred to for the reason that the same did not state facts sufficient to constitute a cause of action in favor of the plaintiff, which demurrer was overruled. The defendant answered, specially denying the material allegations of the petition, except that during the summer of, 1894, there was a strike on certain railroad lines and that the plaintiff was not engaged in the strike, and averring that the plaintiff was dismissed from the defendant’s service for a jusi cause and after proper investigation. Plaintiff replied,'denying that he was discharged for just cause and after investigation.
    On the trial the issues thus made up by the pleadings were modified .by the court when the case was submitted to the jury, in this: First, that the first cause of action was withdrawn from the jury with the consent of the plaintiff’s counsel; second, averments contained in the second amended petition to the effect that it was customary for the defendant to grant letters giving a statement of services rendered, were taken from the consideration of the jury by the charge of the eourt, because there was not evidence to establish any such custom.
    It appears in the testimony that the plaintiff had been twice suspended while in the service of the defendant company, namely, in March and in May, 1894, for breach of duty as an employe, and that on the 26th day of December, 1894, and just prior to the time that the leave of absence was granted to the plaintiff, there had been a collision of the train on which the plaintiff was a brakeman in the switching yards at Bellevue, and which it was claimed was occasioned by the negligence of the plaintiff, Schaffer, and that on the following day, the 27th day of December a passenger train ran through a misplaced switch in the Bellevue yards for the condition of which the plaintiff was claimed to be responsible.
    The jury returned a verdict in favor of the plaintiff in the sum of five thousand dollars on which judgment was entered by the trial court. The circuit court affirmed the judgment of the common pleas court, and this proceeding is prosecuted to reverse the judgments of the two lower courts.
    'Williamson, Cushing & Clarke, and C. P. & L. Wickham, for plaintiff in error.
    
      Vickery &\ Vickery, for defendant in error.
   Davis, J.

It is important to note in this case, as was stated by the trial judge in his charge to the jury, that there was no obligation by custom or express agreement to give to the plaintiff a clearance. If, therefore, an obligation to furnish a clearance existed at all it must have arisen by implication of law; and the whole contention is whether the law imposed such an obligation upon the defendant, under the facts disclosed in this record.

The plaintiff alleges that he was unable to obtain employment after his discharge by the defendant, by reason of the failure and refusal of the defendant to furnish, on request, the plaintiff’s record of service, or a consent and clearance. As there is no testimony in regard to “consent,” that expression of the pleader may be disregarded. The term “clearance” is mentioned in the amended petition as a “card showing that the applicant was in no way connected with said strike,” that is, with the railroad strike in 1894, known as the A. R. U. strike. The plaintiff, Avhen on the witness stand, stated that “a clearance is a paper showing the place of employment, kind of employment, the time and whether the service Avas satisfactory or not.” * * * “if ft was satisfactory it Avould be a clearance; it Avould enable a man to go and sIioav to a railroad company that it was all right, and if his Avork Avas unsatisfactory it would be otherAvise — he had best not shoAV it.” The trial judge, charging the jury, said: “A statement of his record Avith his last employer, as the plaintiff claims, in brief, wras a paper or clearance that it was agreed should be required. It is clai'med that this Avas required so that a railroad company might knoAV Avhether or not he Avas engaged in the A. R. U. strike.” So that the gist of the complaint is that the plaintiff Avas prevented from obtaining employment by the malicious refusal of the defendant to furnish the plaintiff Avith “a statement of his record Avith his last employer.”

Upon the first offer of testimony by the plaintiff, the defendant objected to the introduction of any testimony in the ease on the ground, that there was no case made in the pleadings such as would authorize any recovery. The court overruled the objection, reserving the decision of the question whether the plaintiff had pleaded a good cause of action, until the testimony was all in. In submitting the case to the jury, the court charged in substance, that if the plaintiff agreed, combined or conspired with other railroad companies that neither they nor any of them would employ any man who did not furnish a clearance, that is, a statement of his record from his former employer, and if the defendant, in accordance with such agreement, combination or conspiracy, refused to furnish such statement of his record, with intent to-prevent the plaintiff from obtaining employment from any or all of said railroad companies, then the plaintiff may recover. This instruction to the jury embodies the plaintiff’s theory of his case, and if it is not sound law the plaintiff was not entitled to a judgment, whatever may have been the findings of the jury upon the issues of fact which were submitted to them.

Recurring to the second amended petition, upon which the case was tried, it appears that it is not alleged that the defendant agreed or conspired with other railroad companies to refuse to give to the plaintiff, or to any other discharged employe, a statement of his record, nor is there a scintilla of proof of such a combination; but on the contrary the distinct claim is that such refusal was the individual, malicious act of the defendant. It is the undoubted and unabridged natural right of every individual not to employ, or to refuse to employe, whomsoever he may wish, and he cannot be called upon to answer to the public or to individuals for his judgment. . Nor can the motives which prompt his action be considered. In general terms, such right is as much inherent in corporate bodies as in natural persons. But whatever one person may lawfully do, two or more 'persons may join in doing. There can. be no such thing as a conspiracy'to do a lawful thing unless by unlawful means. If one railroad company may lawfully refuse to continue in its employ a person who has been engaged in a Avar upon its interests, called a strike, or avIio has shown himself to be negligent, incompetent, inefficient or dishonest, there does not appear to be any good reason why a number of railroad companies might not agree among themselves to not employ such a person. Indeed there are obvious reasons, public and private, why they should do so. Por example, it Avould be very inconsistent and unjust, if Avhile holding railroad companies to strict accountability for the negligence of their servants, Ave should restrict them in the natural right to protect themselves' in the matter of the selection of their employes. That such a combination or agreement may be lawfully made and executed is held in the folloAving Avell considered cases: Macauley v. Tierney, 19 R. I., 255; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Brewster v. Miller, 101 Ky., 368; Delz v. Winfree, 80 Tex., 400. And see Cooley on Torts, (2 ed.) 329. If, therefore, the jury found the affirmative of the issue of fact submitted, Avhether the defendant combined with other companies in an agreement not to employ any person Avho did not furnish a statement of his record with his former employer, it would afford no basis for recovery, unless it should appear that this agreement, which is prima facie valid, Avas brought about by some illegal act of the defendant. If the defendant, by fraud, falsehood or force, had brought about a refusal to employ the plaintiff, it would have committed a positive wrong against the plaintiff which would have been actionable. Of this, however, there is not a scintilla of proof. But an agreement to tell the truth about the plaintiff, or a refusal to say anything about him would not make an otherwise legal concert of action an illegal one and authorize a recovery against the defendant. Says Field, C. J., in Vegelahn v. Guntner, 167 Mass., 103: “I am not convinced that to persuade one man not to enter into Ihe employment of another, by telling the truth to him about such other person and his business is actionable at common law, whatever the motive might be.” The Supreme Court of Georgia, in passing upon the constitutionality of a statute which required certain classes of corporations to communicate to their discharged employes the reasons for discharge, under heavy penalty in the name of damags, said: “A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort with their discharged agents and employes, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this state by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other.” Wallace v. Railway Co„ 94 Ga., 732.

The theory of the circuit court that silence, or refusal to render a statement on request, is in the nature of a slander, and, if its effect is to prevent the person from obtaining employment, it is an actionable wrong, is untenable. As stated at the outset, there was between these parties no contract for a statement, and there is no statute in Ohio requiring it; indeed, it is doubtful whether one could be made that would be valid. Wallace v. Railway Co., supra. It is conclusively shown in Railway Co. v. Jenkins, 174 Ill., 402, 405, that no such duty is imposed on the employer by the common law. For convenience of reference, some of the authorities there cited are quoted here: “On examination it will be perceived that this right of an employer t6 give, as it is termed, a ‘character’ to his ex-employe is nothing more than a consequence of the right to communicate one’s belief. * * * No one is under any obligation to make such a communication. He does not owe it as a duty, either to the employer or the employe, to make any communication on the subject.” Townshend on Slander and Libel, (4 ed.) 425. “It is not legally compulsory on a master or mistress to give a discharged servant any character, it matters not how much a servant is entitled to character in fairness or how cruel the refusal might be.” 14 Am. & Eng. Enc. Law, (1 ed.) 799. “It is clear, however, that in the absence of any specific agreement to that effect there is no legal obligation binding a person who has retained another as a servant, to give that person any character at all on dismissal, and that no action will lie against him for refusing to do so.” Smith on Master ■& Servant (Text Book ed.), 380, 381. “The master is under no legal obligation to give a testimonial of character to his servant.” 2 Parsons on Contracts, *43-44.

Without pursuing this discussion further it may be said that the views of the courts below respecting the law governing this case, and as given in the charge to the jury, were entirely wrong, and that upon the facts which the jury were authorized to find upon the issues submitted to them, and which they are presumed to have found, the judgment ought to have been for the defendant.

Reversed and judgment for defendant.

Burket, Spioar and Shauck, JJ., concur.

Minshall, C. J.

I concur in the judgment, and the syllabus as framed, but do not concur in the view expressed in the opinion that companies may enter into an agreement among themselves, not to employ persons who have engaged in what is known as a “strike.” Such an agreement is against public policy, as tending to encourage idleness and cause poverty among working men, by. depriving them of the means of earning a livelihood for themselves and their families. Each company should be at liberty to employ such persons as in its judgment may seem best, unrestrained by any agreement with other companies. A particular company may be disposed to employ persons, although they may have been engaged in a strike, and would do so but for the fact that it is restrained by its agreement with other companies from doing so. It seems to me that such an agreement is clearly against public policy and should not be recog-' nized by the courts. To do so would, in effect, make engaging in a strike an offense punishable by exclusion from employment. The reason I concur in the judgment and syllabus is, I fail to discern from the record that there was any evidence tending to show that the defendant had entered into an agreement with other companies not to employ persons avIio had been engaged in the railroad strike of 1894. All it did was to refuse to give the plaintiff a “clearance” when requested. This it migh treasonably do for reasons stated in the opinion.  