We have given to appellant's lengthy and earnest petition for rehearing that careful consideration which we feel it deserves; but, as it does not appear that we have overlooked or disregarded any material question of law or of fact, a rehearing must be denied. However, we think it well to refer briefly to one matter discussed in the petition. Petitioner's counsel appear to have understood from the opinion that this Court takes the view, as to *Page 58 conspiracy, that an act done by two or more persons in pursuance of an agreement is not actionable though resulting in damage, if a like act, done by one person alone, would not be actionable, or, in other words, that two or more may lawfully do, under agreement and regardless of purpose or motive, whatever one may lawfully do singly. Although this rule prevails in some jurisdictions, such is not the majority view or that of this Court. In the opinion we gave no express definition of the term "conspiracy"; and our comment on the facts was by way of elucidation of the nature and effect of the acts done by the defendants and was not intended to suggest, by implication or otherwise, the meaning of "conspiracy" or its necessary elements. In order that there may be no uncertainty in the mind of any one as to the legal principle involved, we add to the paragraph beginning, "realizing that between legitimate competition and unlawful oppression," the following: "In this connection we should not be understood as holding that under no circumstances can an act resulting in damage, when done by two or more pursuant to an agreement, be actionable if a like act, when done by one alone, would not be actionable. The decision here is based solely, as indicated, upon the insufficiency of the evidence to show an agreement between the defendants for the purpose of injuring the plaintiff — the gravamen of the charge."
The petition is dismissed, and the order staying the remittitur revoked.
MR. CHIEF JUSTICE BLEASE, and MESSRS. JUSTICES STABLER, CARTER and BONHAM, and MR. W.C. COTHRAN, ACTING ASSOCIATE JUSTICE, concur. *Page 59