loss of reputation, etc., which are freely allowed in many cases. The assignments of error from 7 to 10 can not be sustained.

By the twenty-second assignment appellant complains of the error of the court in overruling its motion for a new trial on the ground that the award of exemplary damages-$2,000 is grossly in excess of the amount ($500) awarded as actual damages. There is no fixed rule as to the proportion between actual and exemplary damages in cases where such damages are recoverable. (Tynberg v. Cohen, 76 Tex. 416, 13 S. W. 315.) We can not say that the proportion in the present case is so excessive as to lead to the conclusion that the jury were actuated by prejudice, passion, or other improper motive, in all of the circumstances of the case.

The court then took up the question of the ground of the liability of the railroad company in the case, the other defendants in the original action having been held by the trial court not to be liable in damages, on grounds that are not set forth.

The twenty-third assignment complains of the error of the court in overruling appellant's motion to arrest the judgment for the rea-, sons that the jury having by their verdict acquitted the other defendants with whom, as alleged in the petition, appellant had conspired to have appellee expelled, the judgment against appellant should not be allowed to stand. This is not a case in which the conspiracy is the gravamen of the wrong, or where the wrong is one that can only be brought about by a conspiracy. The wrong is the expulsion of appellee from the lodge by the members thereof, and appellant is sought to be charged therewith, on the ground that this action was brought about by its advice and counsel. The defendants are simply charged as joint wrongdoers. The conspiracy charged is, in substance, that the wrong was done by the other defendants at the instigation of appellant. If the evidence and pleadings authorized the verdict against appellant, it is not a wrong of which it can complain that the jury, for reasons entirely incomprehensible to us, did not mete out to the other defendants the same measure of liability they imposed upon appellant, the evidence showing guilt upon their part. If appellee had sued appellant alone, it could not have complained. It could not claim contribution from the joint wrongdoers. The assignment is overruled.

The twentieth assignment of error presents the most serious question in the case, and we are of the opinion, after a careful review of the evidence, that it must be sustained. The assignment presents the question that the verdict and judgment against appellant railway company are against the great weight and preponderance of the evidence, and that they are without any evidence to support them. Substantially all of the evidence to show any connection of appellant, acting through its general superintendent, Green, with the expulsion of appellee from the order, is to be found in the testimony of Bartholomew and Green and is to be gathered from an interview between Green and Bartholomew and two other engineers in the employ of appellant. Bartholomew testified upon the former trial, and his testimony then, standing alone, can hardly be said to differ substantially from his testimony in the present record. It appears clear from the entire testimony in this record that Green's purpose in

sending for Bartholomew and his associates upon the occasion in question was to explain to them that one Tipton, a discharged engineer, had been discharged for not paying his debts when he was able to do so, and to exhibit to them certain letters in support of this fact. Tipton had complained to the brotherhood, of which he was a member, that he had been discharged for testifying against appellant. Green's purpose was to satisfy these parties that this was not true. After the Tipton matter had been disposed of, Green called the attention of Bartholomew and his two associates to the fact, as claimed by him, that appellee [Thompson], Nichols, and Kelton, ex-engineers, were soliciting lawsuits, against the railroad company for certain law firms using their traveling cards to get transportation as much as possible to solicit these lawsuits, and then going on the witness stand as experts against the company and against them. Green wanted to know if the brotherhood was going to tolerate or uphold this kind of business, and said substantially that if the brotherhood upheld the kind of conduct referred to he would feel justified, when a verdict of a jury in such a case showed negligence in an engineer, in discharging the engineer. Bartholomew testified that he understood Green to mean by "upholding that kind of work' if we upheld our members in chasing over the country on traveling cards belonging to the brotherhood soliciting lawsuits for any firm and then going on the witness stand as experts against the company and against us." Green's version of what took place at this interview, leaving out immaterial matters, is as follows: "I told the men that a number of men-I presumed some of them belonged to their brotherhood, I didn't know whether they did or not-were posing as expert witnesses in suits pending against the company. Were not only doing that, but were soliciting suits; that we had just recently settled the claim of Mrs. Penniman for the death of her husband, and at the time the settlement was made she told our claim agent Mr. Yowell that Mr. Kelton had been there to see her, and had urged her strongly not to settle with the company; that there was a firm of lawyers in town that would take her case on one-third, and that she was foolish to settle with the company in any way, shape, form, or manner, and that she had received a letter from Mr. Thompson and Mr. Nichols, which letter was signed as members of the division at Tyler, urging her not to settle the case with the company, but to put her case in the hands of a lawyer and sue. I told them those were acts we objected to. Settlement was made with Mrs. Penniman by the company some time ago-August, 1902. I can't give the exact day. Mr. Yowell had told me what I told these people. Told them that was the character of testimony we objected to, and it would have to stop. I also told them that in some States the laws were such that if an engineer was guilty of carelessness, negligence in stopping his train, as shown by the evidence given by some of these self-imposed experts, that the laws were such as would put them in the penitentiary, and in my opinion they were not only doing the company harm, but were doing the men a harm. I cited the Bolton case. I said to Mr. Bartholomew: You were an engineer in the Bolton case. With my experience for some 37 years of railroad work—some 15 years of that devoted to train work strictly-I have looked over the ground carefully, and have looked over your testimony very carefully. I have considered the weight of the train, speed, grade, and I fully believe

from my experience that you did everything that you possibly could to stop that train before striking the girl.' I said to him: "The jury believed otherwise; they took the evidence of the expert witnesses, and they believed otherwise.' 'Now,' I said, 'Mr. Bartholomew, Í have made up my mind to do this; to take the same view exactly that the jury takes in these cases. I can't do otherwise. I might be doing you an injustice, but suppose the jury says you are negligent in the Bolton case; that you could have stopped your train; and that you didn't stop it; that you didn't use everything at your command to stop that train. Suppose you run along two months or three months then later and have a similar accident, and it is shown you were careless in the Bolton case, and we have retained you in the service of the company, the jury would certainly censure the company for retaining careless men in its employ, and would unquestionably render a double verdict. I have made up my mind that I am going to take the same view of the case that the jury takes, and if they say that you are careless and negligent, and didn't stop your train-didn't use every means to stop your train-I am going to take the same view, and dismiss you from the service.' Then the discussion came up in regard to the action of Mr. Thompson and others in connection with the Penniman case, and it was discussed and taken for granted that they were not only engaged in soliciting the Penniman case, but in soliciting other cases, and that they were being employed by certain attorneys in town. Mr. Bartholomew then spoke up and said: 'Mr. Green, we have already had these matters I have a letter at home from our grand chief engineer, where we have put the matter up as to whether or not we could expel them for those acts.' He says: 'I have a letter from him and it is my intention' I believe he said, 'to lay the matter before our division.' I said: 'What action you take in your division is nothing to us. We have nothing to do with your division in any way, shape, form, or manner. We are dealing with you as engineers, and whatever action you take by your division is something we have nothing to do, and no advice to give.' So far as I can recall that was about the substance of the interview at that time."

up.

He further testified that he expected the members to use or exert their influence to stop that kind of work, but did not suggest in any way, directly or indirectly, that any action be taken by them as a brotherhood; that he gave them distinctly to understand that he had no advice to give, nor any suggestions to make, in reference to anything being done by the brotherhood as a body.

Now, looking to what was in fact done by the local lodge, which affords basis for this suit, in the trial and expulsion of appellee upon the grounds and for the offenses charged, and particularly in his expulsion upon the second specification, viz., testifying against the Cotton Belt Railway Company in the Bolton Case, it can not be said that the evidence supports a finding that appellant, acting through Green, its general superintendent, either instigated or suggested such action, or conspired with the members of the lodge therein.

On the view of the evidence here indicated, the judgment of the court below was reversed and judgment was rendered for the appellant company. A rehearing was granted, however, on which the court of appeals reversed itself and affirmed the decision of the

lower court on grounds that appear in the following extracts from the opinion delivered at that time:

Upon the hearing of this appeal the judgment of the trial court was reversed, and judgment rendered for appellant upon its twentieth assignment of error presenting the point that there was no evidence upon which appellant could be held liable to appellee for damages in the matter complained of in the petition. Reference to our former opinion will fully disclose the grounds upon which this conclusion is based. Both parties seem rather to have concluded that in our former opinion this question was settled against appellant's contention, which conclusion we can not say was not justified on their part. For this reason probably the question was not presented as fully in the briefs as it otherwise would have been. Upon further consideration of the question, in the light of the able and exhaustive brief and argument of counsel for appellee [Thompson] upon motion for rehearing, we have concluded that we were in error upon this point, and as we have concluded that none of the other assignments of error present grounds for reversal, our conclusion that we were in error in sustaining the twentieth assignment requires an affirmance of the judgment.

The evidence of the acts of Green, appellant's general manager, upon which its liability is predicated, is in the main set out in the original opinion. Other collateral matters, however, which we now think were fairly entitled to be considered by the jury, in determining appellant's liability, are not referred to. This evidence tends to show that Green's purpose was to prevent appellee Thompson from testifying generally, as an expert, in suits against appellant company, and there is more than a suggestion that this referred partly, at least, to his testimony in the Bolton Case, which had been once tried, with an adverse verdict against appellant, based to some extent, at least, on the appellee's testimony as an expert on the operation of air brakes. This case was still pending. Coupled with this was the complaint of Green that appellee and others had been running around stirring up litigation against appellant, and soliciting lawsuits for certain attorneys. Probably no legitimate complaint could be made of Green's desire and efforts to put a stop to this practice. But any attempt, by any means, to prevent his testifying in cases against appellant as an expert or otherwise, when called upon, or to interfere with the due administration of the law, in this particular, was unlawful. It not only affected appellee but the general public as well. Our views on this question are sufficiently indicated in our opinion upon the former appeal of this case. (91 S. W. 834 [supra, pp. 610-612]. There is no doubt that there was a distinct threat on the part of Green that if engineers, members of the Brotherhood of Locomotive Engineers, and not in the employ of the company, testified as expert witnesses in suits against the company, and upon such testimony there was a verdict against the company predicated upon the negligence of an engineer, he would "accept the verdict of the jury" and discharge the engineer, unless the brotherhood did something to put a stop to this practice. This was a suggestion to the brotherhood as an organization, and to the members of the lodge of which appellee was a member, to do something to put a stop to appellee's so testifying in any way against the company. It is not necessary that Green should have had in view the particular action

that was taken by the brotherhood. It is sufficient to show that his purpose was an unlawful purpose, and that he intended, and to some extent, by the influence of his threat to discharge, compelled some action on the part of the brotherhood either to enforce obedience to his expressed desire or to punish him for disobedience. It may be that Green, as general manager, would have been justified in discharging an engineer; or any other employee, in case it had been shown by the verdict of a jury that an accident, resulting in loss to the company, had been caused by his negligence, but it is impossible to see why this result should have been threatened only in cases where the verdict of the jury was predicated upon the testimony of an ex-engineer, member of the Brotherhood of Locomotive Engineers, and then only in case the brotherhood took no step to put a stop to such witnesses testifying as experts, unless for the purpose of controlling the action of such persons through the lodge of which they were members.

RAILWAY RELIEF ASSOCIATION-STATUS-LIABILITY OF RAILROAD COMPANY-Phillips v. St. Louis and San Francisco Railroad Company, Supreme Court of Missouri, 111 Southwestern Reporter, page 109.-Ida Phillips sued the railroad company named to recover damages for the death of her husband, who had been an employee in its service, and the St. Louis circuit court had given a peremptory instruction to find in favor of the defendant company. From this judgment an appeal was taken, the ruling of the court below being reversed and the case remanded for a new trial.

The principal point of interest is the relationship of the employing company and the "Employees' Hospital Association of the Frisco Line," a corporation separately incorporated by the leading officials of the railroad company. The company's contention was that it was in no way responsible for the negligence, if any, of the hospital association, that the latter is a distinct corporate entity, and is responsible for its own acts. Phillips had been an inmate of a hospital under the care of the hospital association, and the charge was made that he was negligently allowed to leave the same when in a known unfit condition, and by reason of such negligence had met his death.

The court held to the identity of interest of the two corporations, ruling that the railroad company was answerable for any acts of negligence of the association. The grounds for this position are found in part in the charter of the association, which in section 1 recites the name adopted and in section 2 announces the purpose of the association to be to support a "benevolent and charitable undertaking" in providing medical and surgical treatment, including hospital service, for the employees of the St. Louis and San Francisco Railroad Company and its associated companies. Section 4 declares that "The association shall not engage in business for pecuniary profit in any form, and shall not have any capital stock; the funds