340 HARVARD LAW REVIEW. thereof. See for instance Lough v. Outerbridge ; ^ Continental Ins. Co. V. Board of Underwriters.^ We content ourselves with a passing reference to the clashing authorities on the question of the legality of a boycott of a trade competitor. As sustaining its legal- ity we cite Bohn Manuf Co. v. Hollis ; ^ Macauley v. Tierney;* to the contrary are Jackson v. Stanfield ; ^ Olive v. Van Patten.*^ We pass to the relation of employee. Out of the fogs and mists of obscurity and difficulty that have hitherto enveloped discussions as to the legality of the acts of employees, especially when acting in combination, there seems to be now emerging the clear concep- tion of the test of the relation of employee by which to determine the legality of a given act of an employee. A great step in ad- vance will have been taken, when once it is generally apprehended that the same test is applicable to the relation of employee, as to that of trade competitor, or, to put it in another way, the employee is, for the purpose of applying this test, to be regarded as a com- petitor of his employer. This view seems to have been adopted in Allen V. Flood ; and see Sinsheimer v. United Garment Workers ; ^ dissenting opinion of Holmes, J., in Vegelahn v. Guntner;^ dis- senting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co.' But see, on the other hand, Barr v. Essex Trades Council.^ Now, in the two cases last cited, where it was held actionable for em- ployees (or persons acting in their behalf) to induce third persons to refuse to deal with their employers, had the question been clearly presented to the courts whether the acts of the employees were not the mere natural outgrowths or incidents of their relation as employees, different conclusions might have been reached. These observations are also applicable to such decisions as Moores v. Brick- layers' Union ; ^ Old Dominion Steamship Co. v. McKenna;^^ Casey v. Cincinnati Typographical Union.^^ But here, as before, limitations of space forbid us to discuss at length the cases where the test of the relation of employee was or might have been applied. 1 143 N. Y. 271 (1894; closely following Mogul Steamship Co. v. McGregor). 2 67 Fed. Rep. 310 (Cir. Ct. Cal. 1895). 8 54 Minn. 223 (1893). * ^9 R- I- 255 (1895). 6 137 Ind. 592 (1894). 6 7 Tex. 630 (Civ. App. 1894). ' 77 Hun (N. Y.), 215 (1894). 8 167 Mass. 92, 107 (1896). 9 83 Fed. Rep. 912, 936 (C. C. A. Eighth dr., 1897). 10 S3N. J. Eq. 101,124(1894). " 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn. 1889). 12 30 Fed. Rep. 48 (Cir. Ct., N. Y., 1887). " 45 Fed. Rep. 135 (Cir. Ct., Ohio, 1891).
