Jesse O. Small, Jr. v. United States, 333 F.2d 702 (3rd Cir. 1964). · Go Syfert
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Jesse O. Small, Jr. v. United States, 333 F.2d 702 (3rd Cir. 1964). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, 2006–2022 · 2 courts · …the right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference. at p. 704 ✓
41 citation events (13 in the last 25 years) across 18 distinct courts.
Strongest positive: Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky, Inc. v. Cameron (kywd, 2022-05-19)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana and Kentucky, Inc. v. Cameron
W.D. Ky. · 2022 · quote attribution · 1 verbatim quote · confidence high
the right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference.
discussed Cited as authority (verbatim quote) Women's Med Prof v. Baird
6th Cir. · 2006 · quote attribution · 1 verbatim quote · confidence high
the right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference.
discussed Cited as authority (rule) AIR MARSHAL ASSOCIATION v. SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY
E.D. Pa. · 2025 · confidence medium
See Dupree v. United States, 264 F.2d 140, 141-44 (3d Cir. 1959) (no waiver of sovereign immunity for claims of interference with existing contracts); Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964) (no waiver of sovereign immunity for claims of interference with prospective contracts); see also Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1154-55 (D.C.
discussed Cited as authority (rule) GIORDANO v. HOHNS
E.D. Pa. · 2024 · confidence medium
Pa. Apr. 23, 2021) (“Courts have also held that the intentional tort of false light invasion of privacy arises out of libel and slander and cannot support liability against the Government.” (citing Johnson v. Sawyer, 47 F.3d 716 , 732 n.34 (5th Cir. 1995) (“‘[F]alse light’ invasion of privacy essentially amounts to libel, slander, or misrepresentation.”))); Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964) (“The Federal Torts Claims Act specifically exempts from its application any claims arising out of . . . interference with contract rights.
discussed Cited as authority (rule) Pioneer Aggregates, Inc. v. Pennsylvania Department of Environmental Protection
3rd Cir. · 2013 · confidence medium
Even if the state action complained of here were the kind of “intentional and unjustifiable” interference with “[t]he right to pursue a lawful business or occupation” that this Court has held to be a protected right, Small v. United States, 333 F.2d 702, 704 (3d Cir.1964), nevertheless the conduct of the defendants is not “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” Kaucher v. Cnty. of Bucks, 455 F.3d 418 , 425 (3d Cir.2006) (quotation marks omitted).
discussed Cited as authority (rule) MFS, INC. v. Dilazaro
E.D. Pa. · 2011 · confidence medium
See, e.g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465 , 41 S.Ct. 172, 176 , 65 L.Ed. 349 (1921) (finding that a “business ... is a property right, entitled to protection against unlawful injury of interference ----”); United States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir.1969) (“The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments to the Constitution.”) (citations omitted); Small v. United States, 333 …
discussed Cited as authority (rule) Women's Medical Professional Corporation Martin Haskell, M.D. v. J. Nick Baird, M.D., Director of Ohio Department of Health (2×)
6th Cir. · 2006 · confidence medium
See United States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir.1969) ("The right to pursue a lawful business ... has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments of the Constitution.”); Small v. United States, 333 F.2d 702, 704 (3d Cir.1964) ("The right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference.”).
discussed Cited as authority (rule) Martinek v. United States
S.D. Ohio · 2003 · confidence medium
Co., 978 F.2d 602, 613 (10th Cir.1992)(claims that the actions of the government had resulted in the cancellation of a contract to sell the business and the loss of future business opportunities was barred by § 2680(h)); Small v. United States, 333 F.2d 702, 704 (3d Cir.1964) (“The exemption extends not only to an action for the unlawful interference with existing contracts but also to actions for the unlawful interference with prospective contractual relations.”); Chen v. United States, 854 F.2d 622 , 628 n. 2 (2d Cir.1988); Downie v. City of Middleburg Hts., 76 F.Supp.2d 794, 800 (N.D.O…
discussed Cited as authority (rule) Gould Electronics Inc. v. United States (2×) also: Cited "see"
3rd Cir. · 2000 · confidence medium
See Richards v. United States, 369 U.S. 1, 11 , 82 S.Ct. 585 , 7 L.Ed.2d 492 (1962); Small v. United States, 333 F.2d 702, 704 (3d Cir.1964).
cited Cited as authority (rule) Gould Electronics Inc., F/k/a Gould Inc. American Premier Underwriters, Inc. v. United States of America Gould Electronics Inc. American Premier Underwriters, Inc.
3rd Cir. · 2000 · confidence medium
See Richards v. United States, 369 U.S. 1, 11 (1962); Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964).
discussed Cited as authority (rule) College Savings Bank, in No. 97-5055, United States of America, Intervenor-Plaintiff in D.C. v. Florida Prepaid Postsecondary Education Expense Board. College Savings Bank, United States of America, Intervenor-Plaintiff in D.C. v. Florida Prepaid Postsecondary Education Expense Board, United States of America, in No. 97-5086
2d Cir. · 1997 · confidence medium
See, e.g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465 , 41 S.Ct. 172, 176 , 65 L.Ed. 349 (1921) (finding that a "business ... is a property right, entitled to protection against unlawful injury or interference ..."); United States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir.1969) ("The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments to the Constitution.") (citations omitted); Small v. United States, 333 F.2d 702,…
discussed Cited as authority (rule) College Savings Bank v. Florida Prepaid Postsecondary Education Board
3rd Cir. · 1997 · confidence medium
See, e.g., Duplex Printing Press Co. v. Peering, 254 U.S. 443, 465 , 41 S.Ct. 172, 176 , 65 L.Ed. 349 (1921) (finding that a “business ... is a property right, entitled to protection against unlawful injury or interference ...”); United States v. Tropiano, 418 F.2d 1069, 1076 (2d Cir.1969) (“The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments to the Constitution.”) (citations omitted); Small v. United States, 333 F…
discussed Cited as authority (rule) O'Ferrell v. United States
M.D. Ala. · 1997 · confidence medium
Co., 978 F.2d 602, 613 (10th Cir.1992); Chen v. United States, 854 F.2d 622 , 628 n. 2 (2d Cir.1988); Williamson v. United States Dep’t of Agric., 815 F.2d 368, 378 (5th Cir.1987); Moessmer v. United States, 760 F.2d 236, 237 (8th Cir.1985); Art Metal-U.S.A, Inc. v. United States, 753 F.2d 1151, 1153-55 (D.C.Cir.1985); Small v. United States, 333 F.2d 702, 704 (3d Cir.1964); March VI Investment.
discussed Cited as authority (rule) Louis Dreyfus Corporation v. Logan County Farm Enterprises, Inc., a Corporation Commodity Credit Corporation and Leadership Bank, N.A.
10th Cir. · 1992 · confidence medium
However, because resolving the question of whether Dreyfus had reasonable cause to know of the defect in LCFE's authority to sell the Grain depends on an evaluation of the surrounding facts and circumstances, see Moran Bros., 333 F.2d at 702, the district court's findings will be upheld if supported by the record.
discussed Cited as authority (rule) Pacheco v. United States
3rd Cir. · 1969 · confidence medium
See Bissell v. McElligott, 369 F.2d 115, 117-18 (8 Cir. 1966), cert, denied, 387 U.S. 917 (1967); Cobb v. Kumm, 367 F.2d 132, 134 (7 Cir. 1966). 28 U.S.C. § 1346 (b); Small v. United States, 333 F.2d 702, 704 (3 Cir. 1964). 1 V.I.C. § 4 provides: “The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary…
discussed Cited as authority (rule) Pacheco v. United States
3rd Cir. · 1969 · confidence medium
Notes: 1 See Bissell v. McElligott, 369 F.2d 115, 117-118 (8 Cir. 1966), cert. denied, 387 U.S. 917 , 87 S.Ct. 2029 , 18 L.Ed.2d 969 (1967); Cobb v. Kumm, 367 F.2d 132, 134 (7 Cir. 1966) 2 28 U.S.C. § 1346 (b); Small v. United States, 333 F.2d 702, 704 (3 Cir. 1964) 3 1 V.I.C. § 4 provides: "The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, i…
cited Cited "see" RYU v. BANK OF HOPE
D.N.J. · 2021 · signal: see · confidence high
Co., 759 F.3d 427, 433 (5th Cir. 2014); see Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964).
discussed Cited "see" Brandywine Mushroom Co. v. Hockessin Mushroom Products, Inc.
D. Del. · 1988 · signal: see · confidence high
See Small v. United States, 333 F.2d 702, 704 (3d Cir.1964) (cause of action for interference with right to pursue a lawful business or occupation is analogous to action for unlawful interference with existing contracts and is governed by the same principles).
discussed Cited "see" Art metal-u.s.a., Inc. v. United States
D.C. Cir. · 1985 · signal: see · confidence high
See Small v. United States, 333 F.2d 702 (3d Cir.1964); Dupree v. United States, 264 F.2d 140 (3d Cir.), cert. denied, 361 U.S. 823 , 80 S.Ct. 69 , 4 L.Ed.2d 67 (1959); Duncan v. United States, 355 F.Supp. 1167 (D.D.C.1973); Taxay v. United States, 345 F.Supp. 1284 (D.D.C.1972), aff'd without opinion, 487 F.2d 1214 (D.C.Cir.1973); Shapiro v. United States, 566 F.Supp. 886 (E.D.
discussed Cited "see" Shapiro v. United States
E.D. Pa. · 1983 · signal: see · confidence high
See Small v. United States, 333 F.2d 702 (3d Cir.1964); Dupree v. United States, 264 F.2d 140 (3d Cir.1959), reh. denied, 266 F.2d 373 , cert. denied, 361 U.S. 823 , 67 S.Ct. 69 , 4 L.Ed.2d 67 reh. denied, 361 U.S. 921 , 80 S.Ct. 253 , 4 L.Ed.2d 189 (1959).
discussed Cited "see" Beane v. McMullen
Md. · 1972 · signal: see · confidence high
See Small v. United States, *607 333 F. 2d 702 (3rd Cir. 1964); Appalachian Power Co. v. American Institute of Certified Public Accountants, 268 F. 2d 844 (2nd Cir. 1959), cert. denied, 361 U. S. 887 , 80 S. Ct. 158 , 4 L.Ed.2d 121 (1959). 3.
discussed Cited "see, e.g." United States v. Henry
3rd Cir. · 1994 · signal: see also · confidence medium
Field & Co., 516 F.2d 952, 955 (5th Cir. 1975) ("[T]he common law has long held that the reasonable expectancy of a prospective contract is a property right to be protected from wrongful interference in the same sense as an existing contract is protected."); see also Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964); Dupree v. United States, 264 F.2d 140, 143 (3d Cir. 1959).
discussed Cited "see, e.g." United States v. Thomas Henry Mowry Mike (2×)
3rd Cir. · 1994 · signal: see also · confidence medium
Field & Co., 516 F.2d 952, 955 (5th Cir.1975) ("[T]he common law has long held that the reasonable expectancy of a prospective contract is a property right to be protected from wrongful interference in the same sense as an existing contract is protected."); see also Small v. United States, 333 F.2d 702, 704 (3d Cir.1964); Dupree v. United States, 264 F.2d 140, 143 (3d Cir.1959). 38 The same philosophy was expressed in a different context, almost a century ago. "[T]he notion is intolerable that a man should be protected by the law in the enjoyment of property, once it is acquired, but left unpr…
cited Cited "see, e.g." Wallace C. Moessmer v. United States
8th Cir. · 1985 · signal: see also · confidence low
See also Small v. United States, 333 F.2d 702 (3d Cir.1964).
discussed Cited "see, e.g." Moessmer v. United States
E.D. Mo. · 1983 · signal: see, e.g. · confidence low
See, e.g., Small v. United States, 333 F.2d 702 (3d Cir.1964); Dupree v. United States, 264 F.2d 140 (3d Cir.) cert. denied, 361 U.S. 823 , 80 S.Ct. 69 , 4 L.Ed.2d 67 reh. denied, 361 U.S. 921 , 80 S.Ct. 253 , 4 L.Ed.2d 189 (1959); Duncan v. United States, 355 F.Supp. 1167 (D.D.C.1973); Taxay, M.D. v. United States, 345 F.Supp. 1284 (D.D.C. 1972).
discussed Cited "see, e.g." Francis C. O'Neill and Aetna Casualty & Surety Co. v. United States v. Ambrose-Augusterfer Corporation, Third-Party Francis C. O'Neill
3rd Cir. · 1969 · signal: see, e.g. · confidence medium
The judgment of the District Court therefore will be vacated and the cause remanded for further proceedings in accordance with this opinion. 1 . 28 U.S.C. § 1346 (b). 2 . 28 U.S.C. § 1346 (b) ; see, e. g., Small v. United States, 333 F.2d 702, 704 (3 Cir. 1964). 3 .
Retrieving the full opinion text from the archive…
Jesse O. SMALL, Jr., Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee
14515.
Court of Appeals for the Third Circuit.
Jun 29, 1964.
333 F.2d 702
Clement C. Wood, Wilmington, Del., (Allmond & Wood, Wilmington, Del., on the brief), for appellant., John C. Eldridge, Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Alexander Greenfeld, U. S. Atty., Alan S. Rosenthal, Attorney, Department of Justice, Washington, D. C., on the brief), for appellee.
Staley, Hastie, Smith.
Cited by 35 opinions  |  Published
WILLIAM F. SMITH, Circuit Judge.

This action for damages is based upon the defendant’s alleged unlawful interference with the plaintiff’s business under circumstances hereinafter described. The jurisdiction of the District Court was invoked under § 1346(b) of Title 28 U.S.C.A. The defendant moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. Fed.Rules Civ. Proe. Rule 12(b), 28 U.S.C.A. The motion was granted' and an order of dismissal was entered accordingly. A motion for reargument was denied and this appeal followed. Since the defendant filed no answer we must assume the-truth of the allegations in the complaint.

The plaintiff, a commissioned officer in the Army Reserve, had been engaged in the practice of dentistry in Wilmington, Delaware. On August 1, 1961, Congress by joint resolution authorized the President to order into active service any unit of the Ready Reserve and any member thereof not assigned to an organized unit. Public Law 87-117; 75-Stat. 242. Thereafter, on October 17,. 1961, the plaintiff was ordered to report for active service on October 24, 1961; the order issued from Fort George G. Meade in Maryland. At the time he was not a member of the Ready Reserve but a member of the Standby Reserve and as such was subject to recall for active duty only as provided in §§ 672 and 674' of Title 10 U.S.C.A. The plaintiff reported for duty as ordered and was continued in active service until March 3, 1962, when the error was discovered» He was thereupon released from service-» In addition to the facts summarized, as-to which there can be no dispute, the complaint alleges that the plaintiff’s erroneous recall to active duty was due-“to defendant’s negligence and lack * * of due care.” It is further alleged that the defendant’s negligent conduct injured the plaintiff’s business.

The defendant here argues that the plaintiff’s claim for damages is based upon an injury to property arising out of and in the course of an activity incident to military service and is therefore not cognizable under the Federal Tort Claims Act. [1] The defendant relies primarily on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and several other cases since decided by the courts of appeals. We-believe that reliance on the Feres caséis misplaced and the facts in the other-cases are not analogous to those in the-present case. We do not reach the question raised by' the argument because we-[*704] prefer to rest our decision on other grounds which we consider more sound.

The liability of the United States is circumscribed by the Act, 28 U.S.C.A. § 2674, which provides: “The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * * ” with certain exceptions. The liability is governed by “the law of the place where the act or omission” resulting in injury occurred, 28 U.S.C.A. § 1346(b), admittedly Maryland. It is agreed by the parties that under the conflict of laws rule of Maryland the law of Delaware is applicable. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). We must therefore determine whether an action for unlawful interference with business is cognizable under the law of Delaware. We have found no case in point, and those cited by the plaintiff are inapposite. We therefore assume that the courts of Delaware would follow the majority view upon which the first part of our decision rests.

The plaintiff here argues, consistently with the allegations of his complaint, that one “who NEGLIGENTLY interrupts the business of another is responsible under Delaware law for the natural and probable consequences of his act.” (Emphasis supplied). The cases cited by the plaintiff do not support this view and we have found none that do. While ordinarily tort liability may be founded on negligence, this is not true of one’s liability for unlawful interference with another’s business.

The right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference. A cause of action based upon such an interference is analogous to one based upon unlawful interference with existing contracts, and is governed by the same principles. Dupree v. United States, 264 F.2d 140, 142, 143 (3rd Cir. 1959), reh. den. 3 Cir., 266 F.2d 373, cert. den. 361 U.S. 823, 80 S.Ct. 69, 4 L.Ed.2d 67 (1959); Pierce Fords Sales, Inc. v. Ford Motor Company, 299 F.2d 425, 429 (2nd Cir. 1962), cert. den. 371 U.S. 829, 83 S.Ct. 24, 9 L.Ed.2d 66 (1962) ; Zoby v. American Fidelity Co., 242 F.2d 76, 79 (4th Cir. 1957); Middle-sex Concrete Products and Excavating Corp. v. Carteret Industrial Ass’n, 37 N.J. 507, 181 A.2d 774, 779 (1962) ; C. B. Snyder Rlty. Co. v. National Newark & Essex B. Co., 14 N.J. 146, 101 A.2d 544, 553, 554 (1953). The gravamen of the cause of action is the intentional or willful misconduct of the tort feasor. Ibid.; see also Dora v. Dora, 392 Pa. 433, 141 A.2d 587, 590 (1958); Wahl v. Strous, 344 Pa. 402, 25 A.2d 820, 821 (1942); Klauder v. Cregar, 327 Pa. 1, 192 A. 667, 668 (1937); Hackett v. Farkas, 152 N.E.2d 475, 477 (App.Ct. Ill.1958); W. P. Iverson & Co. v. Dunham Manufacturing Co., 18 Ill.App.2d 404, 152 N.E.2d 615, 621 (1958) ; Caverno v. Fellows, 300 Mass. 331, 15 N.E.2d 483, 485 (1938). The complaint in the instant ease is clearly deficient in that it fails to allege that the defendant’s authorized representative acted either intentionally or willfully without reasonable justification, an essential ingredient of plaintiff’s claim for relief.

However, even if the complaint had sufficiently stated a claim for i*e-lief, the plaintiff was in no position to successfully resist the defendant’s motion. The Federal Tort Claims Act specifically exempts from its application “[a]ny claim arising out of * * * interference with contract rights.” 28 U.S.C.A. § 2680(h). The exemption extends not only to an action for the unlawful interference with existing contracts but also to actions for the unlawful interference with prospective contractual relations. Dupree v. United States, supra, 264 F.2d 143, 144. The latter action is the equivalent of one for the unlawful interference with business.

The order of dismissal will be affirmed solely for the reasons herein considered. The affirmance shall not be interpreted as an approval of the grounds upon which the decision of the court below rested.

1

. The court below so determined and rested its decision, at least in part, on this determination.