TAYLOR v. HEMMING

Citation Codes

Equivalent Citations

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Docket Number

No. 43622.

Attorney(S)

Erskine W. Wells, Robert G. Gillespie, Jr., Wells, Thomas Wells, Jackson, for appellant, Bankers National Life Insurance Company. I. The contract in question clearly reserved to this appellant the absolute right to cancel the contract without cause or justification upon giving the other parties thirty days' notice. Case v. State Farm Mutual Automobile Insurance Co., 294 F.2d 676; Wyatt v. Southwestern Life Insurance Co., 149 S.W.2d 1063. II. The complaint states no factual situation or legal theory that modifies this appellant's reserved right to terminate the contract under the thirty-day notice provision without liability in this case. Canister Co. v. National Can Co., 96 F. Supp. 273; Diver v. Miller, 148 A. 291; Globe Rutgers Fire Insurance Co. v. Firemens Fund Fire Insurance Co., 97 Miss. 148, 52 So. 454; Harding v. Ohio Casualty Insurance Co., 41 N.W.2d 818; McCluskey v. Steele, 18 Ala. 31, 88 So. 367; Mississippi Power Light Co. v. Town of Coldwater, 234 Miss. 615, 106 So.2d 375; Rosen v. Alside, 248 S.W.2d 638; State v. Wilbe Lumber Co., 217 Miss. 346, 64 So.2d 327; Sweeney v. Gleason, 31 Pa. D. C. 577; Williams Co. v. Colorado Milling Elevator Co., 246 F.2d 240; 11 Am. Jur., Conspiracy, Sec. 50; 16 Am.Jur.2d., Conspiracy, Secs. 1, 43; Annos. 84 A.L.R. 98, 26 A.L.R. 2d 1256, 1268; 11 C.J.S., Torts, Sec. 44; 15 C.J.S., Conspiracy, Sec. 13; Griffith's Mississippi Chancery Practice, Sec. 167. R.B. Deen, Meridian, for appellant, Hillman Taylor. I. Hemming has no cause of action for the following reasons: A. Hemming had no enforceable right which could be interfered with, as the agency contract was terminable at the will of either party; B. A party to a contract cannot conspire to interfere with his own contract; and C. One cannot conspire with another to do that which is lawful. Collation of authorities: Allison v. American Airlines, 112 F. Supp. 37; Bailey v. Banister, 200 F.2d 683; Canister Co. v. National Can Co., 96 F. Supp. 273; Days v. Florida East Coast Railway Co. (Fla.), 165 So.2d 434; Grimm v. Baumgart, 96 N.E.2d 915; Hein v. Chrysler Corp., 277 P.2d 708; E.R. Squibb v. Ira J. Shapiro, 64 N.Y.S.2d 368. Lawrence W. Rabb, Lyle V. Corey, Meridian, for appellee. I. One who, without a privilege to do so, induces or otherwise purposely causes or actively assists a third person not to (A) perform a contract with another, or (B) enter into or continue a business relation with another, is liable to the other for the harm caused thereby. Bailey v. Richards, 236 Miss. 523, 111 So.2d 402; Burns Motor Co. v. Patterson-Pope Motor Co., 50 Ga. App. 801, 179 S.E. 171; Canister Co. v. National Can Co., 96 F. Supp. 273; Days v. Florida East Coast Railway Co. (Fla.), 165 So.2d 434; D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770; E.R. Squibb v. Ira J. Shapiro, 64 N.Y.S.2d 368; Falstaff Brewing Co. v. Iowa Fruit Produce Co., 112 F.2d 101; Globe Rutgers Fire Insurance Co. v. Firemen Fund Fire Insurance Co., 97 Miss. 148, 52 So. 454; Hein v. Chrysler Corp., 277 P.2d 708; Holsinger v. Herring, 207 Iowa 1218, 224 N.W. 766; Irby v. Citizens National Bank of Meridian, 239 Miss. 64, 121 So.2d 118; Koch v. Burgess, 167 Iowa 727, 148 N.W. 858; Lumley v. Gye, 2 El. Bl. 216; Swift Co. v. United States, 196 U.S. 375, 25 S.Ct. 226; 11 Am. Jur., Conspiracy, Sec. 59 p. 588; 16 Am.Jur.2d, Conspiracy, Sec. 50; 15 C.J.S., Conspiracy, Secs. 10, 31c pp. 1007, 1052; A.L.I., Restatement of the Law (Torts), Sec. 766; Prosser, Torts (2d ed.), 720. II. The issue of justification to conspire to interfere with a business relation is an affirmative defense and question of fact. Anno. 26 A.L.R. 2d, Sec. 31 p. 1264. III. "Malice" when used in connection with a business interference is not to be understood in its popular sense of ill will against a person, but in its legal sense, as characterizing an unlawful act done intentionally without just cause or excuse. Lewis v. Bloede, 202 Fed. 7; 86 C.J.S., Torts, Sec. 43 p. 957. IV. This is an inappropriate case for an interlocutory appeal under Section 1148 of the Mississippi Code of 1942, Recompiled. Bierce v. Grant, 91 Miss. 791, 45 So. 876; Carothers v. Bank of Baldwyn, 158 Miss. 602, 131 So. 111; Lott v. Windham, 191 Miss. 849, 4 So.2d 342; Martin v. Reed, 232 Miss. 258, 98 So.2d 765; Moore v. Stewart, 192 Miss. 158, 5 So.2d 237; Wilson v. Wilson, 202 Miss. 540, 32 So.2d 686; Yates v. Box, 194 Miss. 374, 11 So.2d 802.

Judges

ETHRIDGE, P.J.

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TAYLOR, et al. v. HEMMING

1. Appeals — interlocutory appeal — premature.

Interlocutory appeals in action for wrongful interference with contractual relations were premature, where complex legal issues were unavailable for review on record, and appeal could not settle all of controlling principles in cause. Sec. 1148, Code 1942.

Headnote as approved by Ethridge, P.J.

ETHRIDGE, P.J.

Appellee, Cliff W. Hemming, brought this suit in the Chancery Court of Lauderdale County against Hillman Taylor and Bankers National Life Insurance Company. He sought damages for an alleged wrongful interference with a contract by the three parties, designating Taylor and Hemming as general agents of the company, and with a contract between Taylor and Hemming for division of their compensation from premiums on company policies. The chancery court overruled general demurrers filed by the company and Taylor to the bill of complaint, and allowed defendants interlocutory appeals. (Hn 1) We conclude that the appeals are premature, and in a case of this type they were improvidently granted under the statute, and accordingly dismiss them. Miss. Code Ann. § 1148 (1956).

Under section 1148 an interlocutory appeal is proper only when it will settle all of the controlling principles in the cause. There are complex legal issues involved in an action for wrongful interference with contractual relations, and particularly in the instant case. Also, this case will involve factual issues, including apparently an asserted privilege or justification. None of the relevant facts are available for consideration by this Court on the present record, in which we have only the bill of complaint. See Griffith, Mississippi Chancery Practice §§ 679-684 (2d ed. 1950).

Appeal dismissed.

Rodgers, Jones, Inzer and Smith, JJ., concur.

TAYLOR, et al. v. HEMMING

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