St. Louis & S. W. Ry. Co. of Texas v. Thompson

• Decision Date: 11 November 1908
• Citation: 113 S.W. 144
• Parties: ST. LOUIS & S. W. RY. CO. OF TEXAS v. THOMPSON.
• Court: Texas Supreme Court

Page 144

113 S.W. 144

ST. LOUIS & S. W. RY. CO. OF TEXAS v. THOMPSON.

Supreme Court of Texas.

November 11, 1908.

Error from Court of Civil Appeals of First Supreme Judicial District.

Action by W. Z. Thompson against the St. Louis & Southwestern Railway Company of Texas. Judgment for plaintiff against the railway company alone, affirmed by the Court of Civil Appeals (108 S. W. 453), and defendant brings error. Reversed and remanded.

E. B. Perkins and Marsh & McIlwaine, for plaintiff in error. John M. Duncan and H. E. Lasseter, for defendant in error.

BROWN, J.

Thompson instituted this suit in the district court of Smith county against the St. Louis & Southwestern Railway Company of Texas, the Grand International Brotherhood of Locomotive Engineers, J. J. Bartholomew, W. H. McCorkle, G. L. McCardell M. M. Bartholomew, and R. J. McCool to recover of them damages occasioned to the plaintiff by wrongfully and maliciously causing him to be expelled from the said order of the Brotherhood of Locomotive Engineers. Omitting the detail of facts, we will make this brief statement, which will be sufficient for the purposes of this opinion. There was a division of the order of the Brotherhood of Locomotive Engineers at Tyler, No. 201, and the plaintiff, Thompson, and the different individual defendants, were each and all members of that division. The petition charged that the railway company, acting by Green, a general officer of that corporation, J. J. Bartholomew, W. H. McCorkle, G. L. McCardell, M. M. Bartholomew, and R. J. McCool, entered into a conspiracy and combination whereby they agreed and undertook to secure the expulsion of the plaintiff from the said Brotherhood, and, in pursuance of that confederation and conspiracy and to accomplish that purpose, the said individual defendants made out, deposited, and filed with the said Division No. 201 of the Brotherhood of Locomotive Engineers at Tyler the following charges against this plaintiff: "Specification of charges. For writing to Mrs. A. H. Penniman, and urging her to sue the Cotton Belt Railway for the death of her husband. For going on the witness stand in the Bolton case and testifying against the Cotton Belt Railway Company to the injury of the other brothers, and causing the brotherhood at large to lose prestige with the Cotton Belt Railway Company." It is alleged that the said charges were false, and that they were knowingly and maliciously made and presented to the said division. Thereafter the said Division No. 201 of the said Brotherhood notified the petitioner, and placed him upon trial on the said charges. It is alleged that the prosecution of him in the division was maliciously done by the said defendants, and that the members of the said division had no reasonable ground to believe that he was guilty of said charges, and did not believe that he was guilty thereof, but that the said proceeding was prosecuted against him for the unlawful purpose of deterring him from appearing when summoned as a witness in cases against the Cotton Belt Railway. Upon a trial had before the said division, the charges were sustained and the petitioner was expelled therefrom. Petitioner appealed from the said decision to P. M. Arthur, Grand Chief Engineer, who, notwithstanding the unjust and false charges made against the plaintiff, sustained the action of said division. And, in pursuance of said expulsion, the plaintiff's name was printed as one who had been expelled from the said order in a journal of the said International Brotherhood, and was circulated largely in the United States, Canada, and Mexico, greatly to his humiliation and detriment. The plaintiff in his petition alleged with particularity the different elements of injury that he sustained by reason of the action of the said division procured by the malicious and willful conspiracy and combination of the defendants. Among other things, he alleged that he held a policy of insurance in the said order for $1,500 upon which he had paid large sums for a number of years, which by the rules of the order was forfeited upon his expulsion and as consequence thereof. He also alleged that, as a member of said order, he was entitled to and had a traveling card which entitled him to ride free upon the trains of the different railroads in the United States, Canada, and Mexico, which was also forfeited as a consequence of said expulsion. He alleged mental suffering and humiliation by reason of the unjust and unlawful action of the said defendants. The case was tried before a jury, which, after being out for some time, presented to the court the following question: "Hon. R. W. Simpson, District Judge. Dear Sir: A part of the jury is not clear as to whether they can find for the defendant separately, as well as collectively. Therefore we ask your advice on this point. Very respt., G. H. Aikins, Foreman." And to this the court replied in writing as follows: "Gentlemen of the Jury: In answer to foregoing question, you are charged as follows: If you should find for all the defendants, your verdict will be `We the jury find for the defendants.' If you should find in favor of some defendants and against others, your verdict should state against which defendants you find, naming them, and in favor of which defendants you find, naming them. R. W. Simpson, Judge Presiding." The jury returned this verdict: "We, the jury, find for plaintiff in this case a verdict for twenty-five hundred dollars ($2,500.00), five hundred ($500.00) as actual damages, and two thousand ($2,000.00) as exemplary damages against the defendant the St. Louis Southwestern Railway Company and for the other defendants. G. H. Aikins, Foreman." The railroad company moved in arrest of judgment, because, the jury having found by their verdict that the other defendants were not guilty of conspiracy, no judgment could be entered against the railroad company. The same proposition was presented by motion for a rehearing. Both motions were overruled, and, upon appeal to the Court of Civil Appeals of the First District, that court affirmed the judgment of the trial court.

The railroad company did not and could not actually participate in the act of expelling the defendant in error from the order, and can only be held liable for the results of that action by reason of the fact that it had entered into a conspiracy with the individual defendants named to procure some action by the Brotherhood against Thompson. The jury distinctly found for the defendants other than the railroad company, and thereby acquitted all other defendants from having entered into a conspiracy with the railroad company. There is no room for construction of this verdict, for it is expressed in plain language that the railroad company is the only guilty party defendant to the suit. Under the allegations in this case, the railroad company could not have accomplished the injury which was done to Thompson by its own action, but necessarily must have acted through other guilty parties. It therefore follows that an acquittal of all other defendants acquitted the railroad company of the charge made against it. A conspiracy cannot be formed by one person. Collins v. Cronin, 177 Pa. 35, 11 Atl. 869. In the case cited a father and son were charged with a conspiracy to defraud creditors of the son. "It was alleged that Cornelius Cronin has confessed fraudulent judgments to his son John for the purpose of hindering, delaying, and cheating the creditors of the former, that executions had been issued upon these fraudulent judgments, and his property sold and bought in by the son at much less than its value. This, if true, would have been a fraud upon the plaintiff and other creditors. The jury found that it was not true under proper instructions from the court; for how could fraudulent judgments spring into existence between a father and son without collusion, combination, and conspiracy? And, if the judgments were bona fide, then the son was merely using the legal remedies to collect an honest debt due from his fat...