etc. R'y Co. v. McDonald, 75 Tex. 41; Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753.

In this case, however, it may be observed that the petition does not make, by direct allegations, the retention of Potter in the service of the company a ground of ratification. The counsel for defendant in error contend that it was incumbent, in the court below, on the plaintiff in error to have shown (if such was the case) that the employees of the company we have referred to were merely its servants, - not chief officers or viceprincipals. On the contrary, if these employees were not in fact proved to be mere servants, we think nevertheless that the burden was on the plaintiff to allege and establish by proof such state of facts as would warrant the recovery of exemplary damages: International etc. R. R. Co. v. Garcia, 70 Tex. 207; St. Louis etc. R'y Co. v. Burns, 71 Tex. 479. Where the act of a servant amounts to a crime, or is of a willful and malicious character, the law prima facie presumes that the perpetrator of the wrong was not authorized before nor sanctioned afterward by the principal, and this presumption continues until repelled by proof to the contrary: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753.

Article 390 of our Revised Penal Code declares that "if any person shall in any wise pollute or obstruct any watercourse, lake, pond, or marsh, etc., or continue such obstruction or pollution so as to render the same unwholesome or offensive to the inhabitants of the county or neighborhood thereabout, he shall be fined in a sum not exceeding five hundred dollars." Comment is unnecessary. The servant, under the facts affirmed by the verdict, would be liable both civilly and criminally, but the company only civilly, and for actual damages, etc. If the jury had returned their verdict for the five hundred dollars found by them for the plaintiff simply and solely as actual damages, then, assuming the sufficiency of the petition, a very different case would be presented to us for consideration. The charge of the court below was a concise presentation of the measure of actual damages, and is not complained of, and is without error, yet the court did not call the attention of the jury to such matters or items as may constitute actual damages without proof of the expenditure of money by the plaintiff. This the court was not bound to do without a request to that effect, and then only to the extent which the allegations of the petition would justify. The jury very likely understood that the law only allowed actual damages for the

AM. ST. REP., VOL. XXVI. — 48

amount of money expended and the destruction of plaintiff's property (if any), etc. If it be true, as contended by counsel for the defendant in error in their brief (and there is much evidence supporting the contention), "that the remains" of the dead animals which the servant had unlawfully deposited near plaintiff's spring and residence "were permitted to fester and putrify; that the water became polluted, the atmosphere foul; that Reed's family got sick from the poisonous odors, his horses died, his family had to be almost hermetically sealed up in their home, or breathe the pestilential fumes with which the surrounding atmosphere was laden," and that all these things resulted from the acts or culpable omission of defendant's servants, then while it would seem that all of these things might, under appropriate allegations and proof, be taken into consideration by the jury as elements of actual damages, as well as money he expended or property destroyed (if any), in assessing the amount thereof sustained by the plaintiff (Field on Damages, secs. 742, 747-749; Cooper v. Randall, 53 Ill. 24; 2 Wood on Nuisances, c. 13; Vedder v. Vedder, 1 Denio, 257; 2 Wood on Nuisances, secs. 579, 586; 2 Wood's Railway Law, 1378, 1379; Jung v. Neraz, 71 Tex. 396), still these circumstances of aggravation, resulting alone from the acts of the servants, could not have the effect to enlarge the well-settled rules of law (which we have attempted to indicate), so as to render the company liable for exemplary damages, when other. wise under the facts of the case it would not be liable for that character of damages.

Because the verdict of the jury is not supported by the evidence as to exemplary damages, and is against the charge of the court on that subject, we conclude that the judgment ought to be reversed and the cause remanded.

MASTER AND SERVANT - LIABILITY OF MASTER FOR SERVANTS' TORIS. — A railway company is liable for the torts of its employees, both on its trains and around its office: Savannah etc. R. R. Co. v. Bryan, 86 Ga. 312; 22 Am. St. Rep. 464, and note; extended note to Kansas City etc. R. R. Co. v. Kelly, 59 Am. Rep. 601; extended note to Ware v. Barataria etc. Canal Co., 35 Am. Dec. 192, in which the liability of the master for the servant's torts are discussed. A railroad company is not liable for a tort of its superintendent, committed without its authority: Henry v. Pittsburg etc. R'y Co., 139 Pa. St. 289.

DAMAGES-EXEMPLARY, WHEN ALLOWED AGAINST MASTER. — Punitive damages will not be allowed against a master for the tort of a servant, unless he expressly authorized it or approved it: Hagan v. Providence etc. R. R. Co., 3 R. I. 88; 62 Am. Dec. 377, and extended note.

MASTER AND SERVANT - RATIFICATION OF SERVANT'S TORTS BY MASTERWHAT CONSTITUTES. - A mere retention in service by a master will not amount to a ratification of a servant's tort: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753, and note; Williams v. Pullman etc. Co., 40 La. Ann. 87; 8 Am. St. Rep. 512, and note.

MASTER AND SERVANT - LIABILITY OF MASTER FOR CRIMES OF SERVANT. A master is not responsible criminally for the act of his servant or agent, unless he has in some way participated in or countenanced it: Commonwealth v. Stevens, 153 Mass. 421; 25 Am. St. Rep. 647, and note; Commonwealth v. Nichols, 10 Met. 259; 43 Am. Dec. 432, and note; Candiff v. Louisville etc. R'y Co., 42 La. Ann. 477.

DELZ V. WINFREE.

[80 TEXAS, 400.]

CONSPIRACY, TEST TO DETERMINE WHETHER ACTION LIES FOR. — At common law, a conspiracy cannot be made the subject of a civil action, although damages result, unless something is done which without the conspiracy would give a right of action. The true test as to whether such action will lie is whether or not the act accomplished after the conspiracy has been formed is itself actionable.

RIGHT TO REFUSE TO HAVE BUSINESS RELATIONS WITH ANOTHER LIMITED TO INDIVIDUAL ACTION.-The absolute right of a person to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, must be limited to the individual action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing. CONSPIRACY TO INDUCE THIRD PERSON NOT TO SELL TO PLAINTIFF, ACTIONA petition filed by a butcher, which, in addition to charging that the defendants, who were cattle dealers, conspired together to refuse to sell cattle to him, charges that they also induced third persons not to sell to him, it not appearing that their interference with his business was to serve any legitimate purpose of their own, but that it was done wantonly and maliciously, causing, as was intended, pecuniary in jury to him, states a cause of action, and a demurrer thereto should not be sustained.

ABLE WHEN.

L. E. Trezevant, for the plaintiff in error.

Forster Rose, for the defendants in error.

HENRY, A. J. This suit was brought to recover damages by Bernard Delz against the members of the firm of Winfree, Norman, and Pearson, and the members of the firm of Borden and Borden.

Plaintiff's petition stated his cause of action as follows: That he was pursuing the occupation of a butcher in the city of Galveston, and was making and would have continued to make large profits and gains in the business but for the griev

ances committed by the defendants as alleged; that in the prosecution of his business he had opened and was conducting two butcher-shops in said city for the sale of different kinds of fresh meat; that it became necessary that he should buy live animals suitable and fit to be slaughtered for the purposes of his business as a butcher, and for a long time before and at the time of the commission by defendants of the grievances herein stated, he was engaged in the business of buying live animals suitable and fit to be slaughtered and sold as fresh butcher's meat, and which he slaughtered and sold as such at his said two butcher-shops; that the persons from whom plaintiff bought said live animals were engaged in the business of transporting to Galveston and receiving for sale live animals suitable and fit to be slaughtered and sold as butcher's meat, and in selling such live animals for such purposes to whomsoever would buy; that long before and at the time of the commission by defendants of the wrongs herein charged, the defendants were engaged, and are now engaged, as separate firms in said business of receiving and selling live animals, for the purposes aforesaid, on Galveston Island, and were and are now the only persons or association of persons so engaged in said business in Galveston County; that without justifiable cause and unlawfully, and with the malicious intent to molest, obstruct, hinder, and prevent plaintiff from carrying on his said business, and making a living thereby, the said Winfree, Norman, and Pearson, on or about the first day of July, 1889, and at divers times thereafter, and until the filing of this petition, did combine, confederate, and conspire with said firm of Borden and Borden, and with one Gerhard Barbour, a butcher, not to sell to petitioner for cash any live animals or slaughtered meat for the purposes or for the prosecution of his said business; that the said Winfree, Norman, and Pearson solicited and procured from said Borden and Borden an agreement not to sell any live animals to plaintiff, and did so induce said Gerhard Barbour and others, to plaintiff unknown, not to sell to him slaughtered meat for the purposes of his said business.

The petition charges that in pursuance of said combination, each of said firms subsequently refused to sell plaintiff live animals when he applied to them to purchase them at their own price in money which he then offered to pay them, and that said Gerhard Barbour likewise refused to sell him slaughtered meat; that by reason of such unlawful combination and

malicious interference with his business, plaintiff was compelled to close up and discontinue his business in one of his two shops, and in order to continue it at the other one of his shops, he has been and is now forced to buy slaughtered meat at a great disadvantage, and at higher prices than he would have had to pay but for the aforesaid unlawful combination and malicious interference with and hindrance of his business by defendants.

The court sustained a general demurrer to the petition.

Appellant's assignment of error brings before us the correctness of this ruling.

The appellee contends that at common law "a conspiracy cannot be made the subject of a civil action, although damages result, unless something is done which without the conspiracy would give a right of action. In other words, an act which if done by one alone constitutes no ground of action, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several; that the true test as to whether such action will lie is whether or not the act accomplished after the conspiracy has been formed is itself actionable."

We think that the proposition here asserted is well sustained by the authorities, and the first question to be determined is, whether, on account of the acts charged by plaintiff against the defendants, he would have had a cause of action against either of them if no conspiracy had been charged.

If he would have had, then he may maintain his action for a conspiracy. If he could not have sustained a separate action against either of the defendants on account of the matters complained of, the additional charge of a conspiracy will not give it: Cooley on Torts, 125; Kimball v. Harman, 34 Md. 407; 6 Am. Rep. 340; Laverty v. Vanarsdale, 65 Pa. St. 507.

The appellee also asserts the following proposition, which may be conceded to be correct: "A person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice, or malice, and there is no law which forces a man to part with his title to his property."

The privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing. If, without such motive,