WEST VIRGINIA SUPREME COURT OF APPEALS.

CHESAPEAKE & OHIO R. CO., Piff. in Err. 62 Me. 84, 16 Am. Rep. 404; McKinley v. Chi

relations of the original company to the public." 84 U. S. 17 Wall. 450[21 L. ed. 675]; 1 Redf. Railways, chap. 22, § 1, p. 616.

In Naylee v. Alexandria & F. R. Co. 83 Va. 707, the court decided that by executing a deed conveying its road, franchises, etc., to trustees selected by itself, a railroad company cannot evade its legal liabilities for injuries subsequently done to persons and property by the negligent operation of its road. We think it may be stated, as the just result of the decided cases, and on sound principle, that a railroad corporation cannot, without distinct legislative authority, by lease, or any other contract, turn over to another company its road, and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road. Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 309 [30 L. ed. 92];Grand Tower Mfg. & Transp. Co. v. Ullman, 89 Ill. 244; Thomas v. West Jersey R. Co. 101 U. S. 71 [25 L. ed. 950].

to the plaintiff, because the wrong, if any, was done by the Elizabethtown, Lexington & Big Sandy Railroad Company, and not by the defendant. The facts in respect to this question are as follows: The defendant is a domestic corporation, passing through this State, and connecting at the Big Sandy River, the state line, with the Elizabethtown, Lexington & Big Sandy Railroad Company, a Kentucky corporation; and by a verbal arrangement between these two companies the Elizabethtown, Lexington & Big Sandy Company operated that part of the defendant's road between the Big Sandy River and Huntington, a distance of about ten miles, in this State. These two roads, while existing under separate charters and organizations, were in fact operated as a continuous line of railroad from Newport News, in the State of Virginia, to Lexington, in the State of Kentucky, passing through Richmond, Va., Huntington, in this State, and Catlettsburg, in Kentucky. The evidence does not disclose the terms under which that part of the defend- In order to understand the next error comant's railroad between Huntington and the plained of, which relates to the instructions to state line was operated, or how the expenses the jury, it is necessary to state that the eviwere provided for, or what division or disposi- dence for the plaintiff tended to prove that the tion was made of the earnings. It does appear, plaintiff was a passenger on the train, and, however, that the defendant owns a large part finding no fire in the smoking-car, he went of the rolling stock used on that part of its into the ladies' car, and was there smoking a road; that at least some of the officers and serv- cigar, but, upon being informed by the conants in charge of that part of its line were ductor that it was a violation of the rules of paid by the defendant; and that the Elizabeth- the company to smoke in that car, he desisted; town, Lexington & Big Sandy Company had that soon after a brakeman on the train struck not complied with the provisions of the stat him on the face, knocked him down, and inutes of this State in such manner as to author-jured him very seriously. The brakeman who ize it to operate a railroad in this State. The facts further show that on December 21, 1885, the plaintiff, at Catlettsburg, in Kentucky, purchased of an agent of the Elizabethtown, Lexington & Big Sandy Company a ticket from that place to Huntington; that upon said ticket he took passage upon a train to Huntington, and after passing on the train into this State he was found by the conductor in the ladies' car, smoking a cigar, and then and there a diffi culty arose, which resulted in the alleged assault upon and injury to the plaintiff, for which he brought this action.

It seems to me that under this state of facts the defendant was liable to the plaintiff, if he was injured by reason of the misconduct or negligence of the officers or employés on the said train. The court, in its opinion in York & M. L. R. Co. v. Winans, 58 U. S. 17 How. 38, 39 [15 L. ed. 29], says: "Important franchises were conferred upon the corporation to enable it to provide the facilities for communication and intercourse required for the public convenience. Corporate management and control over these were prescribed, and corporate responsibility for their insufficiency provided, as a remuneration to the community for their grant. The corporation cannot absolve itself from the performance of its obligations without the consent of the Legislature.'

And in Washington R. Co. v. Brown the court says: "It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter, or the general laws of the State, by a voluntary surrender of its road into the hands of lessees. The operation of the road by the lessees does not change the

assaulted the plaintiff was only acting as brakeman on the passenger train for that trip. his general employment and duties being that of brakeman on freight trains; and it is not shown that he was thereafter allowed to do service on any passenger train. It is proper to state also, that the evidence of the defendant tended to show that the plaintiff persisted in smoking in the ladies' car after repeated requests to stop it, or go into the smoking-car; and that he was the aggressor, and his misconduct the prime cause of the combat which resulted in the injury of which he complains.

While arguing the case to the jury, the plaintiff's counsel was allowed by the court, against the protest and objection of the defendant, to read from the American Reports verdicts in which large damages had been found by juries in cases similar to the one on trial. At the instance of the defendant, the court afterwards instructed the jury "that in case they find for the plaintiff they are not to take into consideration, nor be influenced by, the verdicts of the juries in the cases read to them by the attorney for the plaintiff, in the argument of this case, in fixing the amount of damages the plaintiff is entitled to." The plaintiff in error insists that it was error to permit the counsel for the plaintiff to read the said verdicts to the jury, and that the instruction of the court to disregard them did not cure the error and wrong done thereby.

In 1 Thompson, Trials, § 947, the law is stated as follows: "Counsel have no right, in argument, to introduce any evidentiary matters to the jury, which have not been regularly offered and admitted in evidence, in presenting the evidence in support of the action or the defense. .. Applying these princi

ples, it is held, even in those jurisdictions | also, the damages suffered, if any, from the loss where counsel are permitted to argue the law to the jury, that they cannot be allowed, under pretense of reading legal authorities to the jury, to read passages from such books which bear upon questions of fact which are before the jury for consideration, thus introducing to the minds of the jurors evidentiary matters which have not been regularly admitted by the presiding judge.' Phoenix Ins. Co. v. Allen, 11 Mich. 501; Baldwin's App. 44 Conn. 37.

"

In Evansville v. Wilter, 86 Ind. 414, which was an action against a city for damages resulting from injuries caused by a defective sidewalk, the court held: "Upon the trial, in such action, it is error to permit counsel for the plaintiff, over objection, in argument to the court in the presence of the jury, upon the question of the measure of damages, to read extracts from reported cases showing large damages held not excessive; but such error is cured by a direction of the court to the jury to the effect that the case before them must be determined upon the evidence, uninfluenced by the damages given in other cases."

It is difficult, if not impossible, to discover how, or in what way, the reading of verdicts in other cases could enlighten the court or the jury upon the principles of law involved in the discussion of the question of damages. It is also impossible to resist the conclusion that the extracts which the counsel read were not read with a view to enable the court to rightly decide upon the law as to damages, but that the purpose was to reach and influence the jury in the amount of damages they should find in the case on trial. As the reading of such extracts could not enlighten the court as to its duties, and it being clearly improper matter to be read to the jury, it was necessarily error to permit it to be read by counsel; and the court should have sustained the objection of defendant's counsel. It is unnecessary, in this case, to decide whether or not the instruction of the court to disregard said extracts in making up their - verdict cured the error, because the judgment here must be reversed for another error. It may be proper to say, however, that as a general rule such error may be cured by such an instruction; but whether it will or not must depend upon the propriety of the verdict, and other facts in the particular case. The safer rule, therefore, seems to be to exclude such matters in the first instance, and not depend upon nullifying their prejudicial effects by an instruction.

of time and inability to attend to business, resulting from the injuries received; also, the bodily and mental pain and suffering, if any, resulting from the injuries received, and for the outrage and indignity put upon him, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has sustained,* and that if they believe that this assault was made in a malicious, unlawful, wanton and unnecessary manner, then they will be warranted in giving the plaintiff exemplary damages."

It seems to me that there is no valid objection to all that part of said instruction which precedes the star, as above printed; but I am of opinion that the sentence following the star is erroneous. There was no evidence in this case proving, or even tending to prove, that the conduct of the brakeman in assaulting and injuring the plaintiff was either authorized or ratified by the company.

In Downey v. Chesapeake & O. R. Co. 28 W. Va. 732, 743, this court, after referring to the fact that there was some diversity in the decisions, says: "But the better and more reasonable doctrine seems to be, that the railway company is not to be held liable in exemplary damages for injuries caused by the negligence of its servants, unless it be shown that the servauts' act was willful, and was either authorized or ratified by the company; but such authorization or ratification can be evidenced either by an express order to do the act, or an express approval of its commission, or by an antecedent retention of a servant of known incompetency, or by a subsequent retention or promotion of the negligent servant.' Patterson, Railway Acct. Law, § 392, p. 471.

As before stated, the evidence in this case shows that the brakeman who caused the injury complained of was only acting as brakeman on the train for that trip; and there is no evidence even tending to show that his conduct was either authorized or approved, or that he was incompetent, or of known bad character. In the absence of any such authorization or approval of the act of the brakeman, even if it was wanton and malicious, the Company cannot be made responsible for exemplary damages. The extent to which it could be held liable would be for compensatory damages, such as are designated in the first part of the instruction. The character of the damages for which the defendant could be made liable having been specifically and fully covered by the From what has preceded, itsufficiently appears first portion of the instruction, it was error to that the plaintiff in error was not prejudiced tell the jury, as the concluding sentence of the either by the refusal or the giving of any of the instruction in effect does, that they might, if instructions, unless there was error in the giv- they believed the assault was wanton and maing of the following: "The court instructs the licious, then, in addition to such damages as jury that if they find the defendant guilty they were characterized in the first part of the inare, in estimating the damage, at liberty to construction, assess the defendant with exemplary sider the health and condition of the plaintiff or punitive damages. Pegram v. Stortz, 31 W. before the injury complained of, as compared Va. 220. with his present condition, in consequence of said injuries, and whether said injury is in its nature permanent; and the reasonable expense incurred by the plaintiff, if any, in curing, or endeavoring to cure, the injuries he received; 7 L. R. A.

For this error the judgment of the Circuit Court must be reversed, and a new trial directed.

English, Brannon and Lucas, JJ., concurred.

PENNSYLVANIA SUPREME COURT.

John J. DETWILLER et al., Plffs. in Err., | present, and he cast the votes upon them for

Charles L. HEMINGWAY et al., Plffs. in majority voted for relators. A majority of the

Fourteen of the stockholders of the institute were present at that meeting, five of whom voted for the relators and nine for the respond-holders. ents. The proxies of six others of the stock- Central R. Co. v. Pennsylvania R. Co. 31 N. holders, some of whom were nonresidents of J. Eq. 485; Ward v. Maryland, 79 U. S. 12 the State, were held by one of the stockholders Wall. 430 (20 L. ed. 452); Corfield v. Coryell, 4

Wash. C. C. 380; Humphreys v. Mooney, 5 Colo. | holders," and then provides that in case of such 282. See Morawetz, Priv. Corp. § 361; Cooley, Const. Lim. p. 15.

A by-law which disfranchises nonresidents is not uniform, is oppressive and cannot be enforced.

State v. Greer, 78 Mo. 188; Ang. & A. Corp. § 345; Green's Brice, Ultra Vires, p. 13.

A member cannot be disfranchised without express power in the charter.

Com. v. St. Patrick Benev. Society, 2 Binn. 441; Sargent v. Franklin Ins. Co. 8 Pick. 90. See Morawetz, Priv. Corp. SS 122, 123, 164; Germantown Pass. R. Co. v. Fitler, 60 Pa. 124. The by-law under which relators' offices were declared vacant is of a penal character, and is therefore to be strictly construed.

Montgomery Co. Medical & Surgical Society v. Weatherly, 75 Ala. 248, 10 Am. & Eng. Corp. Cas. 26.

Each member had a vote for each share of stock held by him.

dissolution the funds shall be "divided among the members in proportion to the amount of stock held by them." This is the only place where the word "stockholders" appears in the charter, and it is very clear that it is here used in the sense of "shares of stock." The mean ing of the provision is that, in order to dissolve the corporation, two thirds in number of the stockholders must agree to such action, and two thirds of the shares of stock must be represented by them. Two thirds in number of the stockholders cannot dissolve the association, nor can less than two thirds in number, representing two thirds of the shares; but there must be an agreement of two thirds in number of persons, and two thirds in number of shares held, before dissolution can be lawfully ordered. We conclude, therefore, that a member of this corporation is necessarily a stockholder, and that a stockholder is, ipso facto, a member. Returning, now, to our question, which con

State v. Tudor, 5 Day, 329; Com. v. Bring-cerns the rights of a holder of shares of stock, hurst, 103 Pa. 134; Morawetz, Priv. Corp. § 476; Cook, Stock and Stockholders, § 608; Fisher v. Essex Bank, 5 Gray, 373.

In Cook on Stock and Stockholders, § 610, the writer says: "When the charter is silent the right to proxy may, in the absence of statutory provision, be conferred by a by-law."

See also Morawetz, Priv. Corp. $ 486, citing People v. Crossley, 69 Ill. 195; State v. Tudor, supra.

Williams, J., delivered the opinion of the

court:

let us substitute the word "stockholder" for the word "member," and the final form of the question will be: "Can a citizen of the United States, who is not a citizen of Pennsylvania, become a stockholder in the Farmers & Mechanics Institute of Northampton County?" We answer, first, there is nothing in the charter that forbids it. It is true that the preamble or declaration with which the charter begins sets out the fact that the persons by whom the application is signed are citizens of the Commonwealth of Pennsylvania; but it contains no engagement that they shall remain so, or that upon removal into another State their stock shall escheat to the Commonwealth, or be for feited to the association. The charter invests the association with the powers of a corporation, including the power to issue stock, but it lays no restrictions upon the stockholders. Nor, in the second place, is there anything in the general law as it stood when this charter was granted, or as it stands now, that forbids it.

The assignments of error in these cases are forty-four in number, but they have been properly treated by counsel on both sides as raising but seven questions. The first of these is stated in the words following: "Can a person not a citizen of Pennsylvania become a member of the Farmers & Mechanics Institute of Northampton County?" As applicable to these cases, the words "citizen of the United States" may properly be substituted for the word "person," The Act of April 6, 1791, authorized the gov in the question as stated by the plaintiff in ernor, and that of October 13, 1840, authorized error. Our question would then stand thus: the courts, to incorporate associations for liter"Can a citizen of the United States, who is not ary and other purposes, "when any number a citizen of Pennsylvania, become a member," of persons, citizens of this Commonwealth, are etc. Before proceeding to answer the question, associated, or mean to associate,” for such purwe must also know what are the requisites to poses. The power of the courts was further membership in this corporation, as laid down enlarged by the Act of February 20, 1854, so as in the charter or by general law. Turning to to embrace associations for the promotion of article 3 of the charter, we find the only pro-agriculture. The charter of this association vision which relates to this subject. This de- was granted by the courts of Northampton clares that "members shall severally subscribe County on April 28, 1856, under the authority at least one share of stock, amounting to $25;" conferred by the Acts of 1840 and 1854. It and in the same connection it is added, "the may be conceded that a petition for incorporaaggregate subscriptions of which shall consti- tion, purporting to be signed by citizens of New tute the capital stock of the association." A Jersey, or of any other State except Pennsylmember must therefore be a stockholder, and vania, would have been refused by the court. the capital stock is made up of the shares sub- The advantages of corporate powers provided scribed for by the members. There is no pro- for by the General Laws as they then stood vision in the charter which contemplates the were reserved, in the first instance, for citizens possibility of members who are not stockhold- of the State; but, when granted to citizens, no ers, or of stockholders who are not members. restrictions were put upon their exercise that Throughout the charter the word "members" affected the negotiable character of their stock, is uniformly used where stockholders are or the rights or powers of stockholders. The spoken of, the only exception being found in corporation, once created, was clothed with the article 7. This article declares that the asso- power to issue stock. In the absence of any ciation may be dissolved by two thirds in express provision to the contrary, the stock so number and value of the members and stock-issued was, like the stock of other business cor