# Akin v. Dahl

> Texas Supreme Court · October 5, 1983 · 661 S.W.2d 917

URL: https://www.frixlaw.com/law-library/cases/9683286

## Case

- **Full name:** Gloria D. AKIN Et Vir., Petitioners, v. George L. DAHL, Respondent
- **Court:** Texas Supreme Court
- **Decided:** October 5, 1983
- **Citations:** 661 S.W.2d 917
- **Precedential status:** Published
- **Opinion:** Concurrence by Kilgarlin
- **Judges:** Wallace, Kilgarlin, Spears, Robertson
- **Cited by:** 121 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683286

## How later opinions describe it (automated extraction)

- holding that finding of civil conspiracy, when object of that conspiracy is tort of which malice is element, suffices to make co-conspirators subject to punitive damages even without separate malice finding; further indicating, however, that when “object of the conspiracy is a…
- stating that “it is the events prior to the institution of the proceedings which must be examined, and only those events, to determine if the defendants had probable cause to act,” and that subsequent events “are not material to the beliefs and motives at the time the proceedi…
- explaining that in the context • of malicious prosecution, probable cause is defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of …
- noting that, once a conspiracy is found, each co-conspirator may be held liable for acts taken by the other co-conspirators in furtherance of the conspiracy
- holding that “only” existing events matter in determining probable cause

## Opinion text

KILGARLIN, Justice,
concurring.
The majority has correctly concluded that because of the conspiracy finding against Ted Akin it is not necessary that there be a finding of malice on his part for him to be subject to punitive damages.
I write only because the punitive damage issue submitted inquired how much money George Leighton Dahl should be awarded as exemplary damages. That special issue was erroneous, but as no objection was levelled against it, and no points of error preserved as to its submission, the Akins can not now be heard to complain.
The punitive damages issue properly should have been divided into two parts, allowing the jury, if it desired, to assess differing amounts of exemplary damages against the Akins.
This matter has been the settled law of this state since this Court’s holding in St. Louis and S.W. Ry. Co. of Texas v. Thompson, 102 Tex. 89 , 113 S.W. 144 (1908). That case involved allegations of conspiracy to falsely and maliciously accuse Thompson, the railroad’s employee, of wrongdoing. This Court held that if any of the defendants were actuated by malice in making charges against Thompson, then the jury, in its discretion, could assess exemplary damages against any or all of the defendants. However, this Court went on to state that unlike actual damages, all defendants should not be subjected to the same verdict of exemplary damages, because they may have acted with varying degrees of malice, or with no malice at all.
Although there are a few exceptions, the Texas position represents the view taken in an overwhelming majority of jurisdictions in the United States. For cases involving allegations of conspiracy and/or malicious prosecution where it was held that inquiry as to exemplary damages should be made separately as to each defendant, see Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir., 1980); Hotel Riviera, Inc. v. Short, 80 Nev. 505 , 396 P.2d 855 (1964); Freeman v. Sproles, 204 Va. 353 , 131 S.E.2d 410 (1963); Mahanna v. Westland Oil Co., 107 N.W.2d 353 (N.D.1960); Edquest v. Tripp & Dragstedt Co., 93 Mont. 446 , 19 P.2d 637 (1933); Thomson v. Catalina, 205 Cal. 402 , 271 P. 198 (1928); and Nelson v. Halvorson, 117 Minn. 255 , 135 N.W. 818 (1912).
Accordingly, I would submit that in cases such as this, a proper submission of punitive damages would be not how much the plaintiff should recover in total, but rather how much the plaintiff should recover as against each specific defendant.
SPEARS, J., joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683286. Public record. Not legal advice.