53 Tenn. 325 | Tenn. | 1871
delivered the opinion of the court.
This action of debt was commenced before a justice, and tried, upon appeal, in the Circuit Court at Chattanooga. Chumley, the plaintiff below, sued for the amount of an account due him as one of the employees of the company. There is no dispute as to the account, but the matters in controversy arise upon the following facts: Chumley was employed by the company as driver of a switch engine, his duties being to transfer cars from one track to another, and transfer cars to connecting roads. Early in the morning of the 14th of October, 1870, the yard-master informed him that he had heard a signal of distress from the switch engine, and directed him to take an engine and go to its relief. They started with it accordingly, but without flag or signal light, on a very foggy morning, and had not proceeded more than
On this point, his Honor Judge Hoyl instructed the jury in substance, that if the( injury to the property of the company was done, or occasioned, by the failure of Chumley, in the discharge of the duties assigned him, to do his duty in a proper manner, or' by reason of his neglect of duty, then the damages, as to the nature and amount of which the jury were to judge, could be recouped; but if the injury was done in consequence of his departure from the line of his duty, and his interference with, or taking con-control over, property or machinery of the company with which he had nothing to do as one of its employees, then the damages could not be recouped, abated, or set off in this suit.
There is no error in this charge. The right of recoupment, as it existed at common law, was confined to matters arising out of, and connected with, the
In the case at bar, the right does not exist in either form. The claim of the plaintiff in error to damages, does not arise out of the contract sued upon, but depends upon an alleged injury resulting from an act done altogether outside of the contract, and having no connection with it; and so far as we are advised, no decision of this court has ever extended the right or defense of recoupment to such a case. See Overton v. Phelan, 2 Head, 447; Porter v. Woods, Stacker & Co., 3 Hum., 56; Whittaker v. Pullen, 3 Hum., 466; Hogg v. Cardwell, 4 Sneed, 157, 158; Pettee v. Tenn. Man. Co., 1 Sneed, 385, 388; Henning v. Vanhook, 8 Hum., 681, 682; Crouch v. Miller, 5 Hum., 586-7; Nelson v. Allen, 1 Yerg., 381; Sample v. Looney, 1 Coop. Over., 66, foot p.
Affirm the judgment.