that he was only passing from one part of his premises to [*153] another for the *necessary care of his stock, or looking after his stray cattle, or going to witness his neighbor's will, or to have his own will executed,' or to visit the sick or the poor, or to do any other act which it is morally fit and proper should be done on that day,' he thereby relieves his conduct from the imputation of illegality by thus making it appear either that, in the legal sense of the term, he was not traveling at all, or that his travel was for a charitable purpose, or was justified by the necessity of the case. And the authorities fully warrant us in saying that the words charity and necessity, in the statutes, are not to receive any narrow or technical construction, but a sensible one that will embrace all cases not fairly within the mischief intended to be prevented. As has been said in Illinois, the moral fitness and propriety of what was done are not to be judged of in the abstract, but are to be determined under the circumstances of each particular case. In Massachusetts, it has been decided that one who, on Sunday, travels several miles to visit a stranger and is injured by the negligence of the railway company, cannot recover for the injury unless some special occasion of necessity 4 spiritualist meeting. As a part of the exercises at the meeting was an exhibition of “spiritual manifestations;" but these she did not attend, and she gave evidence that she believed in spiritualism, and attended the meeting as a matter of conscience and for worship. COLT. J.: "The necessity of traveling, within the exception in the Lord's Day Act, is to a great extent determined by its moral fitness and propriety, and it would have been erroneous to have ruled, as matter of law, that traveling for such a purpose was not within the exception. Bennett v. Brooks, 9 Allen,118; Commonwealth v. Sampson, 97 Mass. 407; Hamilton v. Boston, 14 Allen, 475. It was for the jury to say, upon all the evidence, whether the meeting was of the character claimed by the plaintiff, and whether she attended it for the honest purpose of divine worship and religious instruction." 'We should think this a reasonable deduction from Bennett v. Brooks, 9 Allen, 118, in which the execution of a will on Sunday was held proper and lawful. 2 Commonwealth v. Knox, 6 Mass. 76; Johnson v. People, 31 Ill. 469. See Logan v. Mathews, 6 Penn. St. 417. See the Massachusetts statutes reviewed in Hamilton v. Boston, 14 Allen, 475. In that case it was held that a person walking a short distance with a friend for exercise on Sunday was not violating the statute against traveling on that day, and might recover for an injury suffered by reason of a defect in the street. To same effect, Davidson v. Portland, 69 Me. 116; and see Barker v. Worcester, 139 Mass. 74. Johnson . People, 31 Ill. 469. or charity can be shown for the visit. In contrast with this is the case in Vermont where the plaintiff was in- [*154] 'Stanton v. Metropolitan R. R. Co., 14 Allen, 485. The suit was against a street railway company for an injury attributed to their negligence while plaintiff was being carried on one of their cars. GRAY, J.: "It is not and could not be denied that the plaintiff was 'traveling,' within the meaning of these statutes, at the time of suffering the injury complained of. He was proceeding in a street car drawn by horses from Charlestown, entirely across the city of Boston, in which he resided, to Roxbury, on the opposite side. "It is equally clear that he was not traveling from necessity or charity. He had left Boston on the morning of the same day, and spent the greater part of the day in Charlestown, for the purpose of collecting a debt. A negotiation between a creditor and his debtor, or any other act done for the purposes of private gain, under no apparent or extraordinary emergency, is neither necessary nor charitable in any sense. Ex parte Preston, 2 Ves. & B. 312; Phillips v. Innes, 4 Cl. & Fin. 234; Bennett v. Brooks, 9 Allen, 120; Jones v. Andover, 10 Allen, 18. His subsequent visit to a friend of his companion, who does not appear to have been any relation or friend of his own, was equally unnecessary upon the most liberal construction of the statute. Pearce v Atwood, 13 Mass. 351; Flagg . Millbury, 4 Cush. 244; Logan v. Mathews, 6 Penn. State R. 417. "Being engaged in a violation of law, without which he would not have received the injury sued for, the plaintiff cannot obtain redress in a court of justice. Way v. Foster, 1 Allen, 408; Hamilton. Boston, ante 477. opposite view, approved by the Supreme Court of Pennsylvania in Moh. The ney v. Cook, 26 Penn. State R. 342, and by Mr. Justice GRIER, in Philadelphia, etc., R. R. v. Philadelphia, etc., Towboat Co., 23 How. 218, is inconsistent with the established law of the Commonwealth. "The defendants may have been justified in running their cars for the purpose of transporting passengers to and from public worship, or for other necessary or charitable objects. But the fact that the defendants were acting lawfully would not protect the plaintiff in unlawful traveling, or increase his right to maintain an action against them. Commonwealth v. Knox, 6 Mass. 78; Myers v. State, 1 Conn. 502; Scully . Commonwealth, 35 Penn. State R. 511." See, further, Smith v. Boston & Maine R. R. Co., 120 Mass. 490; S. C. 21 Am. Rep. 538. Traveling on the cars on Sunday bars passenger's recovery. Bucher v. Fitchburg R. R., 131 Mass. 156. So driving to make a call after attending a funeral. Davis v. Somerville, 128 Mass. 594. See Lyon v. Desotelle, 124 Mass. 387. So if a railroad employee is injured in the service. Day v. Highland St. Ry. 13 Mass. 113; Read v. Boston, etc., Co. 140 Mass. 199. If one sailing for pleasure is run down by negligence of officers of a steamer, he cannot recover; otherwise, if the collision was a wanton act. Wallace v. Merrimack, etc., Co., 13 Mass. 95. But one may recover if injured by a defect in street while walking home Sunday evening from making a social call. Barker v. Worcester, 139 Mass. 74. So if a dog runs out and frightens a horse unlawfully driven. White . Lang, 128 Mass. 598. The Massachusetts doctrine is followed in the Federal Courts where the injury occurs in that State. Bucher v. Cheshire R. Co., 8 S. C. Rep. 974. jured when traveling eight miles to visit his young children, who were living with an aunt, and in which he was held to be justified on the ground of necessity. The necessity intended by the statute, it was said, was a moral and not a physical necessity. An act which, under the circumstances, is fit and proper to be done, is not prohibited. The plaintiff could not fully discharge his obligations to his children without being where they were. Under these circumstances it was morally proper for him to travel to them, and no other facts or circumstances were necessary to show the fitness of his traveling. His duties to his children arose out of his relations to them; the propriety of the journey out of its necessity to the discharge of his duties.' [*155] *Other cases in which relief to one injured while violating the Sunday laws has been denied are the following: A party aiding the owner to clear out his wheel pit and injured while doing so by the negligence of the owner;' one defrauded in an exchange of horses on that day;' one who lets to another a horse to be ridden or driven on Sunday, and finds it injured by negligent or immoderate driving; but this doctrine has been often questioned, and at last has been overruled in the State where it originated." The cases arising under the Sunday laws must be considered in connection with a familiar principle in the law of civil wrongs, which, as applied by other courts, would leave them without support. The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed 1 WHEELER, J., in McClary v. Lowell, 44 Vt. 116, 118; S. C. 8 Am. Rep. 366. On the general subject see, also, Commonwealth v. Sampson, 97 Mass. 407; Commonwealth v. Josselyn, Ib. 411; Connolly v. Boston, 117 Mass. 64; S. C. 19 Am. Rep. 396; Gorman . Lowell, Ib. 65. For a son to hire a horse to visit his father on Sunday is not illegal. Logan . Mathews, 6 Penn. St. 417. 2 McGrath v. Merwin, 112 Mass. 467; S. C. 17 Am. Rep. 119. Robeson v. French, 12 Met. 24. In Myers v. Meinrath, 101 Mass. 366, it was decided that an action will not lie for the conversion of a chattel delivered on Sunday in exchange for another, and retained by the defendant notwithstanding the return of the other by the plaintiff. Compare Tucker v. Mowrey, 12 Mich. 368. Gregg v. Wyman, 4 Cush. 322. See Parker. Latner, 60 Me. 528; Wheldon v. Chappel, 8 R. I. 230, 233. See Woodman v. Hubbard, 25 N. H. 67; Morton v. Gloster, 46 Me. 520; Sutton. Wauwatosa, 29 Wis. 21; 8. C. 9 Am. Rep. 534; Hall v. Corcoran, 107 Mass. 251; S. C. 9 Am. Rep. 30; Harrison v. Marshall, 4 E. D. Smith, 271. to the injury. Applying this to the case of injuries received from defects in the highway while traveling on Sunday, the following has been said of it: "To make good the defense (of illegality) it must appear that a relation existed between the act or violation of law, on the part of the plaintiff, and the injury or accident of which he complains and the relation must have been such as to have caused or helped to cause the injury or accident, not in a remote or speculative sense, but in the natural and ordinary course of events, as one event is known to precede or follow another. It must have been some act, omission or fault naturally and ordinarily calculated to produce the injury, or from which the injury or accident might naturally and reasonably have been anticipated under the circumstances. It is obvious that a violation of the Sunday law is not of itself an act, omission or fault of this kind, with reference to a defect in the [*156] highway or in a bridge over which a traveler may be passing, unlawfully though it may be. The fact that the traveler may be violating this law of the State, has no natural or necessary tendency to cause the injury which may happen to him from the defect. All other conditions and circumstances remaining the same, the same accident or injury would have happened on any other day as well. The same natural causes would have produced. the same result on any other day, and the time of the accident or injury, as that it was on Sunday, is wholly immaterial so far as the cause of it or the question of contributory negligence is concerned. In this respect it would be wholly immaterial, also, that the traveler was within the exceptions of the statute, and traveling on an errand of necessity or charity, and so was lawfully upon the highway." 'Sutton v. Wauwatosa, 29 Wis. 21, 28. In this case the Massachusetts cases are examined, and their soundness denied in an able opinion by DIXON, Ch. J. The principle he relies upon was fully recognized in Massachusetts, in a case in which one sued for an injury to his vehicle which, at the time, was standing in a public street in a manner prohibited by city ordinance, and where notwithstanding he was held entitled to recover. Steele v. Burkhardt, 104 Mass. 59; S. C. 6 Am. Rep. 191. Citing Jones v. Andover, 10 A len, 20, and distinguishing Gregg v. Wyman, 4 Cush. 322, and Way v. Foster, 1 Allen, 408, where the plaintiff was obliged to lay the foundation of his action in his own violation of law." In Holt v. Green, 73 Penn. St. 198, 200; S. C. 13 Am. Rep. 737, MERCUR, J., says: "The test whether a demand connected with an illegal transaction is capable of being enforced by law, is whether the plaintiff requires the [*157] *And in New York, where the carriers of passengers have a right to transport persons on Sunday for some purposes, it has been decided that all who are carried by them are entitled to protection against their negligence, and may recover for a negligent injury, irrespective of the purpose for which they were traveling.' And we should say that the weight of authority at this time was in favor of the doctrine so clearly stated by the aid of the illegal transaction to establish his case. Swan v. Scott, 11 S. & R. 164; Thomas v. Brady, 10 Penn. St. 170; Scott v. Duffy, 14 Penn. St. 20. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him. Thomas . Brady, supra. It has been well said that the objec tion may often sound very ill in the mouth of a defendant, but it is not for his sake the objection is allowed; it is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is, that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act. Mitchell v. Smith, 1 Binn. 118; Seidenbender v. Charles's Admrs., 4 S. & R. 159. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded on on its own violation. Coppell v. Hall, 7 Wall, 558." In Mohney. Cook, 26 Penn. St. 842, the fact that the plaintiff was navigating a stream in violation of the Sunday laws was held no bar to a recovery against one who, by erecting an obstruction in the stream, caused an injury to the boat. But the law in that case provided a specific remedy for its violation, which, in the opinion of the court, precluded any other. And denying to him redress for an injury would, in effect, be imposing a further penalty. 1 Carroll v. Staten Island R. R. Co. 58 N. Y. 126; S. C. 17 Am. Rep. 231, citing and relying upon Philadel phia, etc., R. R. Co. v. Towboat Co. 23 How, 209. The case seems to be grounded in part on the fact that the contract to carry was legal on the part of the railroad company, and the obligation to carry with care was incident to it. One may recover for carrier's negligence, though he is on a Sunday excursion. Opsahl v. Judd, 30 Minn. 126. See Knowlton v. Milwaukee, etc., Co., 59 Wis. 278. In an action against a carrier for failure to deliver cattle, it was claimed that the delay was justifiable, as to have delivered sooner would have necessitated Sunday transportation. It was held that such transportation was a work of necessity, and even if not, that the carrier could not rely in defense on the shipper's infraction of law in shipping stock at a time which necessitated Sunday transportation. Phila., etc., R. R. Co. v Lehman, 56Md. 209. Merritt v. Earl, 29 N. Y. 115, decides that the fact that a contract for the carriage of property was made on Sunday will not preclude a recovery for a loss thereof. A bailment on Sunday does not change the title, and the bailor may recover as for a conversion, if the bailee fails in performance and converts the property to his own use. Dwight . Brewster, 1 Pick. 50. See Lewis 0. Littlefield, 15 Me. 233; Logan . Mathews, 6 Penn. St. 417; Stewart . Davis, 31 Ark. 518; Phalen v. Clark, 19 Conn. 421. 1 |
