Company for Erecting & Supporting a Toll Bridge from New Haven to East Haven v. Betsworth

30 Conn. 380 | Conn. | 1862

Dutton, J.

Two questions are presented in this case; one whether evidence of a license was admissible, the other whether, if so, the declarations of the draw-tenders were admissible to prove the license.

As to the first, it will require very little argument to support the decision of the judge below. The plaintiffs, só far as this question is concerned, claim damages, not on the ground that they have sustained an injury from any negligent or willful act of the defendant, but because the damage which they received was owing to the violation by the defendant of a statute law of the state. Rev. Stat., tit. 24, sec. 37. It is a sufficient answer to this claim to say, that the statute in question was passed to protect the rights either of the plaintiffs, or of the public, or both. So far as it was intended for the benefit of the plaintiffs, most obviously they could license the act or waive a remedy for the injury. 1 Hilliard on Torts, 168,191. So far as it was designed to protect the public, most, clearly this corporation never was constituted the guardian of their rights. The statute itself has prescribed the penalty, and the mode of enforcing it. The counsel for the plaintiffs rely chiefly on a few passages in 1 Swift’s Digest, p. 479, to the effect that the defendant in an action of trespass can not. avail himself of a license by the plaintiff to do an illegal act. This doctrine is sustained apparently by the case of Stout v. Wren, 1 Hawks, 420, in which the court followed an old case in Comberback, and a dictum in Buller’s Nisi Prius. In these authorities the learned jurists do not seem to have noticed the marked distinction between the effect of licenses on public and on private prosecutions. An action of assault and battery to recover for injuries received in a duel, or in a pugilistic contest, would be an absurdity in theory and a novelty in practice.

The objection to the declarations of the draw-tenders has more plausibilty but no better foundation. These were made to the masters of vessels by the draw-tenders, when acting, as the motion states, in the course of their employment in having chax^ f the draw, and while actually engaged in opening and kee* upen the draw for the passage of vessels through the same. They were to the effect that the draw-tenders would prefer that vessels should sail through rather than be hauled through. If the president of the company had stood by the bridge and had made such declarations to the masters of vessels while passing through, it would hardly be contended that this would not be evidence from which the jury would have a right to presume that they were communicated to the defendant and would justify his sailing through.

But it is urged that the draw-tenders had no right to make these declarations and affect the company thereby. If they made them with the knowledge and assent of the company they clearly had. But the knowledge, intentions and purposes of a corporation can generally only be known by the declarations and conduct of its directors and other principal officers while in the discharge of their duties. As a general rule, what the directors know regarding matters affecting its interests, the corporation knows. Ang. & Ames on Corp., § 306. The knowledge of the directors may often be inferred from circumstances. It is usual to appoint a considerable body of directors chosen with reference to their location, and their means of becoming acquainted with whatever will promote or impair the interest of the corporation. The object of this is to enable them, at their regular meetings, to avail themselves of the information thus acquired.

This bridge was, so far as we know, the only property of these plaintiffs. The draw-tender was one of the most important agents of the corporation, as on his management of the draw its pecuniary interests were dependent. It was the duty of the president and directors to watch his conduct, and see whether he was attentive and faithful in discharging his j duties and in protecting the rights of his employers. The [jury would therefore have a right to presume that some of the ] directors would know what he was accustomed to say and do jin the discharge of his duties, that this knowledge would be Icommunicated to the board of directors, and that the board |would take some action on the subject if they disapproved of lis conduct.

Besides, these declarations may well be considered as a part of the res gestee. The question was, how did the company conduct itself in the management of the draw. This could only be answered by showing what was said, as well as what was done, by its agents who had the charge of it. 1 Greenl. Ev., § 113.

A new trial is not advised.

In this opinion the other judges concurred.