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that acts whicli are habitually done by the authorized agents of a
corporation are done with their approval ; and this is indeed almost
the only manner in which the approval by the corporation of the
acts of its agents can ever be proven. The tacit appropriation by
a cor^wnition of the benefits of the acts of its agents, repeatedly oc-
curring, is full and siitisfjictory proof of the assent of the corpo-
i*aLion to the doing of such acts.

There is but little difficulty in applying the law we hare laid
down to tlio present case. The court below properly decided that
tiio defendant, though a corporation, could be indicted for Sabbath-
breaking under the iCth and l?th sections of ch. 149 of our Code,
j)p. G94,o;).j. Upon common-law principles a corjwration is indict-
able for a misdemeanor, unless the character of the misde-
meanor l>e such as in its nature could not be committed by a cor-
poration ; and this misdemeanor is not of such a character. It is
true the IGth section of this chapter imposes a fine on a person
only who breaks the Sabbath ; but ch. 13, g 15, subdivision 9, Code
of W. Va., p. 93, provides, that in construing a statute the word
^'l>erson" shall include a corporation, if not restricted by its con-
text. This statute is not so restricted, but on the contrary the
statute seems to have had corporations, and especially railroad
companies, in view, as under the 17th section "the transportation on
Sunday of the mail and of passengers and their baggage" is permitted.

But while the defendant, a corporation, was liable to indiclment
found in this case, yet the court below erred in not granting it a
now trial, the evidence in this case being clearly insufficient to sustain
the finding of the jury that the defendant was guilty. The evidence
l)roved that on April 27, 1873, that being Sunday, there were ship-
l>od in Mineral county over the Baltimore and Ohio railroad by the
authorized general agent of the company, who had a general super-
vision of freight trains, some ten or fifteen hoppers filled with coal-
tiiat being about half the number of cars usually carried by an
engine ; that this general superintendent had a standing order not
.() ship any freight on Sunday except perishable freight and live
stock. There was no evidence to show that this order was not, at
or about the time this coal was shipped, habitually obeyed, ir that
at or about that time, any freight had been shipped over the road

Digitized by


JULY TERM, 187*.). S19

State V. Baltimore and Ohio Railroad Company.

on Sunday except upon the single occasion when these ten or fif-
teen hoppers of coal were shipped. There was some evidence tend-
ing to prove tliat five years after that time freight w^s frequently
shipped over the road en Sunday. This evidence is entirely insuf-
ficient to prove that these ten or fifteen hoppers of coal were
shipped on Sunday with tiic assent of the Baltimore and Ohio
Railroad Company. The act of shipping ten to fifteen hoppers of
coal on a particular day is a very different thing from building a
bridge over a navigable stream. It is a perfectly just inference,
indeed a conclusive inference, from the mere building of such
bridge, that the corporation to -which it belonged approved thereof;
and no other proof of their approval, except the simple proof that it
was their bridge, was necessary. But the ten to fifteen hoppers of
coal might well have been shipped in violation of the orders of the
company and without their assent or approval. It may well be
that on a single occasion in 1873, the superintendent of freight
shipped this half load of coal on Sunday, because of some failure
to ship it on Saturday when it ought regularly to have been shipped ;
and if done upon but one single occasion, the inference that it was
approved by the company is a violent inference, which the jury had
no right to draw. Had it been proven that in 1873 freight trains
of coal were habitually shipped on Sunday over the road, the jury
would have been fully justified in drawing this inference, as the
company is legally presumed to be informed as to the acts of its
agents ; and if these acts continue to be done, they mast be presumed
to be approved ; and proof that orders had been issued forbidding
such act to be done ought not to prevent the inference that they
were done with the approval of the company. For if done con-
trary to their wishes, the inference is inevitable that they would
have caused them to be discontinued. But there is no proof that
in 1873 freight was habitually earned over the road on Sunday, or
that it was done in 1873 at all except on this single occasion. Had
the proof been satisfactory that freight was habitually carried over
the road on Sunday in 1878, this could furnish very slight evidence,
if any, that the company approved this act done five years before.
The policy of the company in this respect may well have changed
in five years.

A new trial should therefore have been granted to the defendant.

[Omitting minor matters.]

Judgment reversely and cause remanded*

All concur.

Digitized by



Baltimore and Ohio Railroad Compauj t. Bitner.

Baltimobb and Ohio Railroad Company v. Bits^eb.

(15 W. V*. 45ft.)

J^tret^ — on bond for faitl^ful performanes — itH-of of prindpaTM daim for


A. Bureij, In an action ai^inst him alone on a bond for faithful performance
cannot ofiaet or recoup a claim of the principal against the plaintiflT for
serviceB in the busineae in which the bond waa given.

ACTION of debt on a joint and several bond executed to tlic
plaintiflf by John C. Bitner as principal, and the defendant
as surety, for the faithful perfonnance of the principaPs duty as
agent. The defendant pleaded as set-off a claim of the priucipal
for services as such agent. Proof of this was excluded, and the
plaintiff had judgment.

Daniel B. Lucas^ for plaintiff in error.

C, Boggess, for defendant in error.

Obeek, President. [Omitting immaterial matters.] We think
the court did not err in rejecting this plea of set-off. It is
true this court did decide in the case of B. £ 0. Railroad Co. v.
Jameson, 13 "W. Va. 833; s. c, 31 Am. Rep. 775, that in a suit of
this character on a bond, like the one sued on in this case, the princi-
pal in the bond when sued could plead as a set-off his services ren-
dered as an agent of the plaintiff. But this by no means estab-
lishes that the surety, when sued alone on a joint and several
obligation, can plead as a set-off any demand due from the plaintiff
to a person not a party to the suit, even though that person stands
in the relation of principal to the defendant as a surety. When
two parties execute a joint and several obligation to a third person,
he may at his option treat it as a joint obligation and sue them
both, or he may treat it as a several obligation and sue only one of
them. If he chooses to treat it as a joint obligation and sue both
the obligors, though the declaration may show that it is a joint
and several obligation, still as he has elected to treat it as a joint
obligation, the parties to the sait, plaintiff and defendants, are
subjected at common law to all the consequences flowing from the

Digitized by


AUGUST TERM, 1879. 821

Baltimore aud Ohio liailroad Company v. Bitner.

settled rules of the common law governing joint actions. Sec
Moffett V. BicJcle, 21 Gratt. 282 ; Taylor v. Beck, 3 Rand. 31C, and
they are still subjected to these consequences except so far as it has
been modified by statute law. See Ohoen v. Guihrie, 15 W. Va.
100. So when the obligee in a joint and several bond chooses, as
he may, to treat the obligation as several, and sues only one of the
obligors, the parties to such suit, both plaintiff and defendant,
must be subjected to all the consequences flowing from the rules of
the common law governing a several action. And among these
consequences is of course the exclusion of any defense which would
belong only to an obligee in the contract who had not been sued,
unless in some particular case a statute might give to the defend-
ant sued a right to make such defense as the obligee not sued might
make. It is difficult to conceive a case in which it would be right
for the legislature to confer on the party sued a right to mako such
defense as a third party might have made, had the plaintiff thought
proper to have sued him jointly with the defendant Without
saying whether any case could arise where such act of the legisla-
ture would be proper, it is obvious, I think, that sets-off are not
such a case; and the legislature has not authorized a defendant,
who is sued on a bond which the plaintiff has elected to treat as
his several bond, to plead a set-off due to an obligor, though such
co-obligor be the principal in the obligation and the bond be joint
as well as several.

Our statute of set-off (see 4th section of chapter 126 of our Code,
p. 609) provides that "although the claim of the plaintiff be
jointly against several persons, and the set-off is a debt not to all, but
only to a part of them, this section shall extend to such set-off, if
it appear that the persons, against whom such claim is, stand in
the relation of principal and surety and the person entitled to
the set-off is the principal.'' This statute can, it seems
to me, obviously have no reference to such a case as is
presented by this record. It applies obviously only to
the case where the demand set up by the declaration is a joint
demand against the principal and surety, and the principal has an
offset against the plaintiff. It would have applied to this case, if
the plaintiff had sued jointly the principal, John C. Bitner, and the
surety, Henry Bitner ; but the plaintiff has elected, as he had a
right to do, to treat the obligation he held as the several obligatioa
of Henry Bitner, the surety ; and has sued him alone ; and it is

Digitized by


822 WEST VlUdlNIA,

Baltimore and Ohio Railroad Company v. Bitner.

impossible to extend the meaning of the statute to include such a
case. If it included such a case, it might result in the most obvi-
ous injustice and absurdity. If for instance, the defendant had
been permitted to file as offset the amount due to his principal,
Jolin C. Bitner, $1,900, and he had proved the same, what sort
of a verdict could the jury have rendered ^ The offset would h^e
exceeded the plaintiff's demand by more than $1,000. Could the
jury have found a verdict in favor of the defendant for tliis differ-
ence ? Certainly not ; for notliing was duo to him. Could they
have found a verdict in favor of John C. Bitner for this amount?
Certainly not ; for he was no party to the suit. Could they have
simply found a verdict that plaintiff was not entitled to recover
on his demand and no more ? Certainly not ; for in such case, in
a suit by John C. Bitner for his services, it would be impossible to
say what portion of them had been allowed as an offset against the
plaintiff's demand ; as the record in this case would not show what
portion of the plaintiff's demand the jury held to be proven. Again,
how could the plaintiff be liable to have such an offset used against
him, when, if any part of it was rejected by the jury, John C. Bit-
ner could not be held bound by such verdict, as he was not a parly
to tlie suit ? It seems to me obvious that the statute therefore can-
not be construed to apply to any case, except to a joint suit against
a principal and his surety or sureties. The court therefore did not
err in refusing to permit such an offset to bo pleaded.

Nor did it err in refusing i% permit it to be proven under tlic
plea of conditions performed as a recoupment. This court in the
case of B, tf 0. R R. Co, v. Jameson, 13 W. Va. 847 ; s. c, 31
Am. Rep. 7T5, declined to decide in a suit, very similar to this in
other respects, but in which the suit was brought against the prin-
cipal in the bond, whether the services of the defendant rendered
to the plaintiff, as against the principal, could be relied on as a n-
coupment; it being unnecessary to decide this point in that case
And whether in this suit, had it been against the principal in the
bond, Jolin C. Bitner, he could have relied on these services as a
recoupment in this case, it is unnecessary to decide ; and as the
authorities proper to be examined to determine such a question
are not now accessible, I decline to express any opinion on this
point. From the case of McHardy v. Wardworth, 8 Mich,
349, relied on by the counsel or the plaintiff in error, it may be
inferred, that in a suit on this bond against John C. Bitner he could

Digitized by


AUGUST TERM, 1879. 825

Baltimore and Ohio Railroad Company v. Bitner.

have relied on those services as a recoupmenL Then in a joint suit
against him and his surety on this bond, they could also rely on
these services as a recoupment ; but there i^ nothing in this case
from which any inference can be drawn that in a suit on this bond
against the sarety alone, such as the one before ns, he could rely on
the services of the principal as a recoupment, even could it have
been done in a joint suit against them. On the contrary the prin-
ciples laid down in this case would, I think, fairly lead to the con-
clusion, that in a suit against the surety alono he could not rely on
such services of his principal as a recoupment Thus it is stated in
this case by Judge Christianoy that " defense by way of recoup-
ment goes only in abatement or reduction of the plaintilTs claim
and can be used as a substitute for a cross-j\ction only to the extent
of the plaintiffs demand. No judgment can be obtained by the
defendant for any balance in his favor. See Ward v. Felloms, 3
Mich. 282."

To apply this doctrine, which is universally admitted, to the*
present case, if the services of J. C. Bitner could be recouped in
this case, it could only be allowed to the extent of the demand of the
plaintiff as proven to the satisfaction of the jury. Had he been a
party to the suit, and had it been decided that these services were
a proper recoupment, and he had relied upon it, he could in this
suit have had no recovery for any excess of services over the plaint-
iffs claim as proven ; and it seems to me in no other action could
he have recovered this excess for services rendered the plaintiff in
this suit before its institution, and which had been relied on as a
recoupment in this case, though for services rendered after the in-
stitution of this suit and which could not have been recouped, he-
might recover. See Briton v. Turner, 6 N". H. 481 ; Fabricate v.
Lannitzy 3 Sandf. 744 ; Mondel v. Steel, 8 M. & W. 8C9. If this be
so, it would seem to be evident that it should be left to his election
to have these services recouped, or to sue for them in a separate
suit; and therefore that Henry Bitner, the defendant in this catJc.
ought not to be allowed to prejudice his principal by relying on
these services as a. recoupment in a suit in which the person wlio
rendered the services is not a defendant. But even if it were other-
wise, and another suit could be brought by one who had relied on
bis claim as a recoupment, it would, it seems to me, be obviously
improper to permit the defendant to rely on these services of a third
party, who was not a defendant, as a recoupment If the jury re-

Digitized by



Baltimore and Ohio Railroad CompaDj v. Bitner.

dnced this claim of services largely, as for instance to $500,
John C. Bitner, the party who rendered them, could not be bound
by the verdict of a jury in a suit in which he was no party, and he
could recover for these services or at any rate for their excess above
^ $500 ; and if he could not be estopped by the verdict of the jury

I as to the value of these services, it would be obviously unjust to

^ hold the plaintiff in this suit bound by the verdict of the jury as

to the value of these services. Yet the plaintiff must be so bound
to the extent of his claim, if these services could be in this suit
relied on as a recoupment. If the defendant had executed with
John C. Bitner this bond as a joint bond only, the plaintiff must
have sued both obligors ; and if these services are proper subject of
recoupment they might have been relied upon as such in such suit
But when he made the bond several as well as joint, he put it in
the power of the plaintiff to treat it as a several bond; and when
he so treated it and sued him, the surety, only, it makes it impossi-
ble for him to recoup these services of the principal ; for if he was
allowed to do so, he would thereby be permitted to do injustice to
his principal, John C. Bitner, or to the plaintiff in this suit He
has no right to complain of his being deprived of this right of re-
coupment (if it was a right in such a transaction) as by executing
a several bond he voluntarily surrendered such supposed right, if
the plaintiff chose to sue on it as a several bond.

The court therefore did not err in i"cfusing to permit the defend,
ant to prove these services of John C. Bitner as a recoupment.

The judgment of the Circuit Court must therefore be affirmed;
and the defendant in error must recover of the plaintiff in error
his costs about his defense in this court expended and damages ac-
cording to law.

JudgvMtU affirmmL
All cononr.

Digitized by


NOVEMBER TERM, 1879. 825

Hawker v. Baltimore and Ohio Railroad Company.

Hawkbb V. Baltimore and Ohio Railroad Company,

Evidence — dedaratums of aeroant — rea getta.

In an action against a railroad company for running upon and killing cattle,
statements made by the engineer in charge of the engine which killed the
cattle, while he was on the engine, which was off the track, having been
thrown therefrom by the accident, but made an hour after the accident and
several hundred yards from where it occurred, are not competent evidence
against the defendant to prove negligence. (See note, p. 829.)

ACTION of damages for running upon and killing cattle. The
opinion states the point The plaintiff had judgment below,

C. BoggesHy for plaintiff in error.

James Morrow, Jr,y for defendant in error.

Green, President. [Omitting other questions.] The next
inquiry is, did the court err in permitting the witness, Wood,
to give to the jury the statement made by the engineer about
an hour after the killing and injury of the cattle, and some
distance therefrom, when he was on the engine after it had run off
the track? The engineer was sufficiently identified to permit this
statement to go to the jury, if it had been otherwise proper to per-
mit it to go to the jury. Unless this statement of the engineer
was a part of the resgestw, it must be excluded ; for the defendant
cannot be bound by the statements or omissions of its agent made
after the injury complained of had been committed, when regarded
merely as admissions. A railroad company is not responsible
for the declarations and admissions of any of its servants beyond
the immediate sphere of their agency and during the transac-
tion of the business in which they are employed. Thus the
declaration of a conductor of a railway train, as to the mode in
which an accident occurred, made after its occurrence, or those
of an engineer made under similar circumstances, are not admissi-
ble. Redfield's edition of Greenleaf, 135, § 114, a; Va. & Tenn.
R. B. Co. V. Sayers, 26 Grat 351 ; Gnffln v. Montgomery R, R. Co.,
26 Ga. Ill ; Robinson v. Fitchhurg R. R. Co., 7 Gray, 92.
Vol. XXXVI— 10*


Digitized by



Hawker v. Baltimore and Ohio Railroad Oompanj.

It is true the declarations of an agent like his acts, if made at
the time the act is done, will bind the principal, as constitating a
part of the res gestcB. If the railroad company is bound at all by
the declarations of an engineer in this case, it is only bound
because they constitute a part of the res gestcB. Did they consti-
tute a part of the res gesto f They were made about an hour after
the accident which is the basis of this suit happened, but while the
engineer was still on the engine, it having been thrown off the
track by this accident. Were these declarations a part of the res
gestcB, or were they a narrative merely of a past occurrence ? If the
first, they were evidence, and if the last, they were not, no matter
how soon after the occurrence they were made. See Corder v. Tal-
bot, 14 W. Va. 277; Brown v. Lusk, 4 Yerg. 210; CommonweaUh
V. HariDOod, 4 Gray, 41.

It sometimes happens that the declai*ation is made so soon after
the occurrence, that the court has great difficulty in determining
whether it is a part of the res gestm or not; and sometimes a diffi-
culty arises in fixing a limit to what constitutes the occurrence,
with reference to which it is claimed tliat a declaration or act is a
part of the res gestm. Thus in Insurance Company v. Mosley, 8
Walh 397, the question in controversy was whether Mosley had
died by reason of injuries which had arisen from an accident His
wife proved that he got up and went down stairs about midnight;
when he came back he said he had fallen down the stairs and
almost killed himself; that in falling he had hit and hurt the back
of his head; his voice trembled and he was faint and vomited. He
continued to suffer and died on the third day after. The majority
of the court thought these declarations made to the wife were,
under these circumstances, part of the res gestcB, and admissible as
such in evidence to prove the accident. The court says : "Here the
principal fact is the bodily injury. The res gestm tkve the statements
of the cause made by the assured almost contemporaneously with
its occurrence, and those relating to the consequences made while
the latter subsisted and were in progress." But from this opinion
Judge Clifford dissented in a long and able opinion, in which
Judge Nelson concurred.

In the case of Hanover Railroad Co. v. Coyle, 65 Penn. St* 402,
where a peddler's cart had been overthrown by a railroad car, and
a suit instituted by him for the injury, the plaintiff was permitted
by the court below to prove the declarations of the engineer at the

Digitized by


NOVEMBER TERM, 1879. §27

Hawker v. Baltimore and Ohio Ri^ilroad Companj.

time of the accident^ for the purpose of showing the train was
behind time, and thus show carelessness and negligence as a part
of the res gestcB. The supreme court say : '* The record shows no
bill of exceptions to this evidence; but if it did, we cannot say
that the declaration of the engineer was no part of the res gestm.
It was made at the time of the accident, in view of the goods
strewn along the road by the breaking up of the boxes ; and it
seems to liave grown directly out of and immediately after the
happening of the fact The negligence complained of being that
of the engineer himself, we cannot say that his declarations, made
upon the spot, at the time, and in view of the effects of his con-
duct, are not evidence against the company as a part of the trans-
action itself."

Whatever may be the difficulty in some cases of determining
what declarations are a part of tlie res gestce, and what merely the
relation of a past occurrence, I do not think there is much diffi-
culty in determining in this case, that the statement of the engineer,
made an hour after the occurrence which is the basis of this suit,
that is after the killing and injuring of the cattle, and made some
three hundred yards from where the accident occurred, cannot be
regarded as a part of the res gestce. They must, it seems to me, be
regarded as a relation of past events merely, as much so as if the
statements had been made the next day. The fact that the engine
which had been thrown from the track when the accident occurred
was still off the track when these declarations were made, it seems to
me, has no bearing on the question; for the throwing of the engine
off the track was not the principal fact to be shown. Indeed it
had nothing to do with the subject of inquiry before the jury, the
manner in which the cattle had been killed. It was, it is true, one
of the consequences which followed the killing of the cattle. But
if it had been so injured that it could never have been again put on
the track, it would hardly be said that this would authorize the
declarations of the engineer, made at an indefinite period after-
ward, to be received as evidence, because the engine was still off

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 91 of 123)