Porter v. Martyn

• Decision Date: 24 October 1895
• Citation: 32 S.W. 731
• Parties: PORTER et al. v. MARTYN.
• Court: Texas Court of Appeals

32 S.W. 731

PORTER et al. v. MARTYN.

Court of Civil Appeals of Texas.

October 24, 1895.

Error from district court, Harris county; S. H. Brashear, Judge.

Action by James Martyn against E. H. Porter and others for conspiracy in malicious prosecution. From a judgment for plaintiff, two of the defendants bring error. Reversed as to part, and affirmed as to the rest.

G. W. Tharp, for plaintiffs in error. E. P. Hamblen, for defendant in error.

WILLIAMS, J.

One Holzworth made affidavit charging appellee with theft of two horses, the property of appellant Wilson, and caused him to be arrested. The charge was dismissed by the magistrate, and appellee brought this suit against Holzworth, Christenson, Porter, and Wilson, to recover damages for malicious prosecution, alleging conspiracy, and concert of action between them in bringing of the charge. The jury, in the district court, returned a verdict for plaintiff for $1,100, against all of the defendants except Christenson, who was discharged. Porter and Wilson bring the case before us by writ of error.

Having carefully considered all of the assignments of error, with the briefs and arguments of counsel, we find that none of them present good ground for reversal, except that which questions the sufficiency of the evidence to show participation in the wrong on the part of defendant Wilson, and that, we are constrained to hold, is well taken. We recognize the rule to be as stated by an eminent author, that "all who contribute to a tort, even by their wills alone, especially, therefore, all who contribute by their acts, even though in an inferior degree, are, whether they are personally present or absent at the doing, liable to the person injured for the entire damage. * * * All who are present while others are committing a tort, and encouraging them, though not otherwise taking part therein, are in the same manner and degree answerable to the person injured as though they did it with their own hands. But mere passive presence, without any proven participation of the will, or any act encouraging or discouraging the doing, will not bring the case within this rule; while yet, from circumstances, joined with presence, without dissent, a participation may be inferred by the jury." Bish. Noncont. Law, §§ 523, 524. And one may participate in the wrong of another, either in its inception, so as to make him responsible for all the damage caused thereby, or at any stage of its progress before completion. But the evidence in this case fails to show that Wilson advised or encouraged Holzworth to institute or carry forward this prosecution, or that he consented for him to do it. He states that he cautioned Holzworth against making the charge, and in this he is not contradicted. He attended the examining trial without being subpœnaed, but he explains that he did so at the request of the sheriff, and in this his statement is undisputed. The prosecuting attorney says that "Holzworth and another," in the justice's court, claimed to be prosecutors, but he does not state that the other referred to was Wilson; and Porter was present, and there is evidence that he had interested himself in the prosecution. Wilson was not present when the affidavit was made, and says that it was done without his knowledge. His mere presence before the magistrate when the charge was to be investigated cannot be taken as sufficient evidence that he was there for the purpose of prosecuting the charge when, by his uncontradicted testimony, he explains it as he does, even if otherwise it would be sufficient. The facts show that the horses, which belonged to Wilson, had been intrusted by him to Holzworth, to be taken from North Galveston to Houston; that they had escaped from Holzworth, and had gotten into a bog, and were rescued and cared for by plaintiff. Plaintiff made known the fact to Holzworth, and claimed payment for his services, which Holzworth agreed was reasonable. The latter then went to Houston, and stated to Wilson that plaintiff held the horses until the money should be paid. Thereupon Wilson spoke sharply to Holzworth, telling him that he (Wilson) held him responsible for the horses, and would not pay the money claimed by plain...