erate into the mere private discretion of the majority of the court as to a subject of all others most open to difference of opinion and most liable to be affected by changing circumstances,'' 82 and where the quaint language of an English judge becomes applicable: "Public policy is an unruly horse, and when once you get astride it, you never know where it will carry you.

183

Conclusion

§ 92. In the decades from 1880 to 1900 a great fear of the power of new combinations spread throughout the United States. The power which came from combination had been, and was being, abused. Unlawful excluding purposes and practices were the regular accompaniments of combinations which occupied a preponderant position in the business. All such combinations, therefore, received a bad name, and combination was, in and of itself, distrusted. Since perhaps 1910 it has become each year more apparent that the evil side of combination was the existence of the excluding purposes and the use of unlawful excluding practices. Each year it has become more apparent that these excluding purposes and practices may be eliminatetd and the freedom of the market secured, without touching the combination itself. It has become more and more apparent that the transition of business units from smaller to larger and then to still larger units is a desirable side of combination, and a movement in which the public has a vital interest. It has become more and more apparent that some experiment was necessary to determine what was the most efficient size for business units in a given branch of industry, and that where the field is really free to others to enter, the determination of the question of proper size may be left to the play of economic forces. If these observations are sound, they clearly point to the drawing of the line between good and bad trusts at the place where the excluding puproses or unlawful excluding practices commence. It is sufficient protec

82-Comment on Hilton v. Eckersley, 6 E. & B. 47 (1855) by the editors of Smith's Leading Cases, Mr. Justice Willes and Mr. Justice Keating (4 ed. vol. 1, p. 286).

83-Per Burrough, J., in Richardson v. Mellish, 2 Bing. 229, 252 (1824).

tion to the public and a sufficient concession to the possible abuse of power by combinations, and any bias against them, that every combination having a preponderant position at the time it is organized must sustain the burden of rebutting a prima facie inference of excluding purposes and unlawful excluding practices.

CHAPTER VI

COMPETITIVE METHODS

§ 93. If we regard torts as consisting of an act of the defendant resulting in damage to the plaintiff which is without justification, we have here to consider how far the social interest in freedom to compete will justify acts of competition which accomplish what they were designed for, namely, damage to the defendant in his business.

First of all we find certain classes of acts resulting in damage which do not derive any justification at all from the fact that they are used in competition to defeat a business rival, e.g.: inducing another trader to break his contract, fraud, libel, intimidation, and coercion.

Secondly, we come at once to a class of acts used in the course of competition and causing damage, which are sometimes justified and sometimes not. Whether or not a justification exists seems to depend upon the size of the aggressor and his position in the business relative to the entire business. That is to say, if the act and damage are committed by one who has no preponderant position in the business and against one who has a fair opportunity to achieve the same position as the aggressor and to retaliate effectively, no tort has been committed. The fact of competition between business rivals and the social interest in such competition justifies the act and damage. But if the aggressor has a preponderant position in the business, the same act and damage are not justified and he will be guilty of a tort.

This subject is new. The law is in the making. The distinction suggested is fairly discernible in the cases. Even if it be the true line of distinction, still judicial decisions have done nothing as yet to define whether a preponderant position relative to the entire business is an essential, or whether the tort will arise if the aggressor has a preponderant position relative to that of the one damaged. Nor has any attempt been made as yet

to say what position is preponderant relative to a given business as a whole.

The soundness of the discriminations here suggested can best be tested by an analysis of the results reached in the following leading cases.

§ 94. In Mogul Steamship Co. v. McGregor, Gow & Co.1 a combination of steamship owners operating in the China trade did not commit a tort to a business rival, whose trade was damaged by the offer of specially favorable terms to shippers who would deal exclusively with the combination and by cutting prices in particular localities to drive away competition. This was a case where the act and damage were justified because done in the course of competition. The social interest in competition permitted these methods. There was no showing that the defendants had any preponderant position in the business which made it impossible for the plaintiff to retaliate by doing the same thing. For aught that appears, the defendants had a large fleet which could have been mobilized in the China trade and could have prosecuted the same methods which were complained of.

§ 95. The same remarks apply to the case of Scottish Cooperative Wholesale Society v. Glasgow Fleshers' Trade Defense Association. In that case the butchers at a foreign cattle auction exchange declared that they would not buy at all unless the exchange refused to sell to the Co-operative Society, which was the butchers' rival. It was held that this was not a tort against the Co-operative Society. The butchers were the stronger in this instance, but they did not have any preponderant position relative to the entire business. The opportunity was open to the others to increase their strength and retaliate. It was a case of mere competition and nothing else.

§ 96. In Allen v. Flood 3 there was competition between two groups of workers. Each wanted the iron work in shipbuilding yards. One threatened to strike unless the employer discharged those belonging to the other. This was not a tort against the men discharged. The case clearly establishes the right of employees to strike as a means of successful competition with another group

1-L. R. [1892] A. C. 25 [309]. 2-35 Scot. L. Rep. 645 (1898).

3-L. R. [1898] A. C. 1 [337].

of employees which is seeking from the same employer work which the first group desires to do. As a matter of fact, however, it goes farther for it made no difference in Allen v. Flood that the employer had not given and was not going to give any of the iron work in his yard to the men discharged. Nor did it make any difference that the discharge of the plaintiff was secured as part of the competitive struggle of the defendant to prevent the plaintiff from securing the iron work in dispute in other yards and at other times.

It should be noted that there was no preponderant position in the labor market on the part of the men who threatened to strike. They evidently were stronger at the point in question than the plaintiffs. After all, however, it was a simple case of rivalry and competition between the two groups. The plaintiffs were equally privileged to use the same methods if they could do so effectively. The court could hardly do otherwise than give effect to the freedom of competitors to compete in this manner. The novelty about Allen v. Flood was the fact that the court found itself confronted with a case where one group of laborers was competing with another group and using the strike as a means to achieve success in that competition.

4

§ 97. In Quinn v. Leathem the employees of M threatened to strike for the purpose of inducing M not to deal with L so that the group of employees to which the employees of M belonged could secure the places of L's employees. This threat of strike resulting as it did in M withdrawing his patronage from L was a tort to L for which the employees of M were liable. Here the act and damage were not justified by their relation to a competitive struggle and hence constituted a tort. Furthermore, size or preponderant position on the part of the defendant organization was held not to be necessary to the existence of the tort. The act and damage would have been a tort regardless of the size of the defendant.

The distinction between this case and that of Allen v. Flood is clear. In Allen v. Flood, the employees of M threatened to strike for the purpose of compelling M to discharge the rival workmen of the defendants. The defendants, who were employees

4-L. R. [1901] A. C. 495 [347].