Summary
In Downing v. City of Jackson, 199 Miss. 464, 24 So.2d 661, 664 (1946), the court held that the “wrongful conduct” rule barred recovery when a wife sued her husband's employer after he died from injuries sustained during a wreck.
Summary of this case from Cahn v. Copac, Inc.Opinion
No. 36011.
January 28, 1946. Suggestion of Error Overruled, March 11, 1946.
1. ACTION.
Courts will not lend their aid to a party who grounds his action upon an immoral or illegal act.
2. MASTER AND SERVANT.
Where a servant's injury was proximately caused by fact that he was violating a statute or municipal ordinance, the meaning and effect of which were perfectly clear, he cannot recover damages for the injury.
3. AUTOMOBILES. Master and Servant.
Where city employee without compulsion in obedience to orders of his superior in employment of city participated in violation of penal statute by driving city tractor towing trailer of state fair concessionaire over public streets, knowing as did his superior that trailer was not equipped with brakes as required by statute, driver was in pari delicto with city, and hence his widow could not recover against city or owner of trailer for driver's death from injuries sustained in accident caused by lack of brakes (Code 1942, secs. 8249, subd. 3, 8275, 8277, 8278).
APPEAL from the Circuit Court of Hinds county, HON. H.B. GILLESPIE, Judge.
G.Q. Whitfield and Lamar F. Easterling, both of Jackson, for appellants.
Sam Soliman and Carl Sadelmeyer, doing business as The Royal American Shows, were plainly liable for the injuries and death of the deceased, Jack Downing, their employee, for the reason that it furnished to him, along with the truck-tractor which was furnished by the City of Jackson, a five thousand pound show-trailer, without any brakes, in wilful violation of the said state statute, being Section 8249 (subsec. 3), Code of 1942, which was negligence per se, and permitted the City of Jackson's representative to command the deceased to haul it over a highway of the State of Mississippi, to-wit: South State Street, Jackson, Mississippi, without the required equipment, in violation of law both on the part of the Royal American Shows and the City of Jackson. The original negligence of Soliman and Sadelmeyer, doing business as Royal American Shows, in negligently failing and refusing to equip its show wagon involved in this wreck with any brakes in violation of Section 8249 (sub-sec. 3), Code of 1942, mandatorily requiring brakes adequate to control the movement thereof and to stop and to hold such vehicle, was active and unbroken to the moment of the collision, and said negligence constituted a proximate cause of the accident, the other concurring proximate cause being the gross negligence of Harry Wright, the superior agent of the City of Jackson, appellee, in commanding Jack Downing, deceased, an inferior servant of both the City of Jackson and the Royal American Shows, to drive said tractor without brakes on said highway, proximately resulting in the death of appellant's husband.
See 18 R.C.L. 542, Sec. 57.
The Royal American Shows is liable to Mrs. Downing, regardless of whether he was their employee and servant or not, if they furnished the trailer which was without brakes in violation of a state statute, and Downing was injured thereby, and the fact that Downing himself was violating a state statute would under the comparative negligence state statute not bar, but only diminish, his damages. This is undoubtedly the law and is the only just rule.
Code of 1942, Secs. 1454, 1455; 18 R.C.L. 575, 577.
The record throughout bears out, undisputedly, the fact that Jack Downing was the general servant of the City of Jackson at the time of the collision, and had been its general servant for years immediately preceding, and it equally undisputedly bears out the fact that Jack Downing was, for the purpose of assisting the Royal American Shows in transporting its show wagons to the show grounds, its special servant.
See Sawmill Construction Co. v. Bright, Bright v. Finkbine Lumber Co., 116 Miss. 491, 77 So. 316.
Both the City of Jackson and the Royal American Shows should respond in damages to the appellant for the injuries and death of deceased, if the jury should find from the evidence that there was proximate cause between the collision and the injuries and death, which was a question of fact to be decided by the jury and not by the judge.
Sacker v. Waddell, 98 Md. 43.
It is contended by appellees that although the deceased, Jack Downing, was commanded to drive the truck-tractor, and with it haul the trailer without brakes, upon the highway, and although the Royal American Shows permitted him to haul it without brakes, both in violation of state statutes, yet since Jack Downing did haul the trailer without brakes along a highway under the said circumstances, that therefore, his negligence was the sole proximate cause of his injuries, sufferings and death, and that therefore, the appellant should not be allowed to recover because of the said negligence by the deceased.
But see Gulf S.I.R. Co v. Saucier, 139 Miss. 497, 104 So. 180 ; Robirtson v. Gulf S.I.R. Co. et al., 171 Miss. 628, 158 So. 350; Mississippi Cent. R. Co. v. Lott, 118 Miss. 816, 80 So. 277; 2 A.L.I. Restatement Torts, Sec. 388.
Whether the company was guilty of negligence, and whether he himself was guilty of contributory negligence, were questions of fact which a jury should have passed upon. So many questions are usually integrated into the solution of the question of negligence — it is so necessary to carefully examine all the circumstances making up the situation in each case — that it must be a rare case of negligence which the court should take from a jury. We think this is not that sort of case.
Bell v. Southern Ry. Co., 87 Miss. 234, 30 So. 821; Illinois Cent. R. Co. v. Sims, 77 Miss. 325, 27 So. 527.
Where a defendant is negligent and his negligence combines with that of another, or with any other independent intervening cause, he is liable, although his negligence was not the sole negligence or the sole proximate cause, and although his negligence without such other independent intervening cause would not have produced the injury.
Superior Oil Co. et al. v. Richmond, 172 Miss. 407, 159 So. 850, 852, 853; Cumberland Telephone Telegraph Co. v. Woodham, 99 Miss. 318, 54 So. 890; Clark v. Chambers, 3 Q.B. 327; G.T.R. Co. v. Cummings, 106 U.S. 700, 27 L.Ed. 266; Great N. Ry. v. Thompson, 118 C.C.A. 79; Hale v. Mich. Cen. Ry., 118 C.C.A. 627; B. O.R. Co. v. Taylor, 109 C.C.A. 172; Stevens v. Saunders, 34 App. D.D. 321; Watts v. Montgomery Trac. Co., 175 Ala. 575, 577, 51 So. 959; Wil. City Ry. Co. v. White (Del.), 6 Penne. 363, 66 A. 1009; Logan v. Hope, 139 Ga. 589, 77 S.E. 809; Philmer v. Boise Trac. Co., 14 Idaho 327, 94 P. 432, 15 L.R.A. (N.S.) 254, 125 Am. St. Rep. 161; Tomasi v. Denk Bros. C. C. Co., 257 Ill. 70, 100 N.E. 353; Nickey v. Steuder, 164 Ind. 189, 73 N.E. 117; Miller v. Rapids Sash Door Co., 153 Iowa 735, 134 N.W. 411; Omberg v. Accident Association, 101 Ky. 303, 40 S.W. 909, 72 Am. St. Rep. 413; Walker v. Collinsworth, 144 Ky. 3, 137 S.W. 766, 44 L.R.A. (N.S.) 299; Butler v. N.E.S. Co., 191 Mass. 397, 77 N.E. 764; Yost v. Railroad, 245 Mo. 219, 149 S.W. 577; Rossiter v. Peter C.G. Factory, 140 N.Y. Supp. 296; Ward v. Railroad, 161 N.C. 179, 76 S.E. 717; Harriman v. Railroad, 45 O.S. 11, 12 N.E. 451, 4 Am. St. Rep. 507; Railroad v. Johnson, 101 Tex. 422, 108 S.W. 964; Railroad, etc., Co. v. Street, 57 Tex. C.P. 194.
The City of Jackson has the power to operate a state fair by express statute.
City of Jackson v. McFadden, 181 Miss. 1, 177 So. 755; Laws of 1938, Ch. 340; Laws of 1930, Ch. 249.
The fact that decedent violated a criminal statute of this state by operating said equipment without brakes along the highway does not prevent recovery.
Wheat v. Wheat, 162 Miss. 595, 139 So. 849; Gulf S.I.R. Co. v. Saucier, supra; Sawmill Construction Co. v. Bright, supra; Frazier v. Hull, 157 Miss. 303, 127 So. 775; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782; Dent v. Town of Mendenhall, 139 Miss. 271, 104 So. 82; E.L. Bruce Co. v. Bramlett (Miss.), 188 So. 532; Illinois Cent. R. Co. v. Messina, 111 Miss. 884, 72 So. 779; Illinois Cent. R. Co. v. Cole, 113 Miss. 896, 74 So. 766; 20 R.C.L. 147, 148, Sec. 120; 2 Restatement Torts, Secs. 388, 469.
For a defendant to secure relief because of a variance between pleading and proof, the variance must be material, and it is not "material" unless it has actually misled defendant to his prejudice, and, if it is material, objection must be made so that the situation may then be dealt with by trial court.
Westbrook v. Corneil, 199 Miss. 118, 23 So.2d 753; Code of 1942, Sec. 1512.
In passing on a ruling of a lower court, the Supreme Court will look to the whole record, and, if in the light thereof no harm appears to have resulted to appellant from the ruling complained of, judgment will be affirmed though the ruling may have been erroneous when made.
Metzger v. Sessions, 198 Miss. 892, 23 So.2d 746
Where the record disclosed that alleged variance between pleading and proof did not mislead defendants to their prejudice, variance was not material.
Westbrook v. Corneil, supra; Code of 1942, Sec. 1512.
Variance between causes of action pleaded and proved will not be considered on appeal, in absence of objection to testimony.
Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619; 144 So. 217.
Butler Snow, of Jackson, for appellees, Sam Soliman and Carl Sadelmeyer.
The proof is insufficient to show that the injury sustained proximately caused or directly contributed to the death of decedent.
Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Kramer Service, Inc., v. Wilkins, 184 Miss. 483, 186 So. 625; Mutual Benefit Health Accident Asso. v. Johnson (Miss.), 186 So. 297; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Code of 1942, Sec. 7064.
Decedent was not an employee of the defendants, Soliman and Sadelmeyer, at the time the alleged accident occurred. Decedent had full knowledge of the absence of brakes on the show wagon and of the condition of the show wagon and voluntarily undertook to haul the same in its then condition and thus assumed the risk incident to moving the wagon when the same was not equipped with brakes and in its then condition.
New Orleans, Baton Rouge, Vicksburg Memphis R. Co. v. Norwood, 62 Miss. 565; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Cook v. Wright, 177 Miss. 644, 171 So. 686; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285; Regan v. Foxworth Veneer Co., 178 Miss. 654, 174 So. 48; Columbus Greenville R. Co. v. Robinson, 189 Miss. 675, 198 So. 749; Furr v. Brookhaven Creamery Co., 188 Miss. 1, 192 So. 838; Cox v. Dempsey, 177 Miss. 678, 171 So. 788; McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Eastman, Gardiner Co. v. Caldwell, 177 Miss. 861, 172 So. 126; Sawmill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316; Isaac v. Prince Wilds, 133 Miss. 195, 97 So. 558; Code of 1942, Sec. 1456; 38 Am. Jur. 845, Sec. 171.
The decedent, Downing, and these defendants are in pari delicto.
Western Union Telegraph Co. v. McLaurin, 108 Miss. 273, 66 So. 739; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782; Gulf S.I.R. Co. v. Saucier, 139 Miss. 497, 104 So. 180; Lloyd v. North Carolina R. Co., 153 N.C. 536, 66 S.E. 604; Melville v. D.B. Copper Co., 130 P. 431; Martin v. Wallace, 40 Ga. 52; Wallace v. Cannon, 38 Ga. 199; Code of 1942, Secs. 8228, 8249, 8277, 8278; Ordinances of City of Jackson; 35 Am. Jur. 672-673, Sec. 239; 39 C.J. 296-297, Sec. 423.
The proof fails to show any causal connection between the absence of brakes on the show wagon and the accident and the injury sustained by plaintiff's decedent.
Wm. Harold Cox, of Jackson, for appellee, City of Jackson.
The contract to haul this show equipment from the railroad siding to the fair grounds for hire is ultra vires the power of the municipality and can give rise to no action for negligence.
Spengler v. Trowbridge, 62 Miss. 46; Greenville Water Works Co. v. City of Greenville (Miss.), 7 So. 409; Edwards House Co. v. City of Jackson, 132 Miss. 710, 96 So. 170; Bishopric v. City of Jackson, 196 Miss. 720, 16 So.2d 776; Steitenroth v. City of Jackson, 99 Miss. 354, 54 So. 955; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; Dick v. Atchfalaya Drainage Levee Dist., 147 Miss. 783, 113 So. 897; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292; Town of Palm Beach v. Vlahos (Fla.), 15 So.2d 839; Code of 1930, Sec. 2391; Laws of 1938, Ch. 340; McQuillin Municipal Corporations, Secs. 1787, 2808.
The decedent violated a criminal statute of this state by operating said equipment without brakes along this highway, and appellant cannot recover for any injury he may have sustained in such unlawful act.
Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97; Johnston v. Swift Co., 186 Miss. 803, 191 So. 423; Capps et al. v. Postal Tel. Co., 197 Miss. 118, 19 So.2d 491; Code of 1942, Secs. 8249, 8275, 8277; 39 C.J. 296-297, Sec. 423; 35 Am. Jur. 672-673, Sec. 239.
There is no substantial evidence in this record to show negligence on the part of the City of Jackson, or that any such negligence caused or contributed to decedent's injury and subsequent death.
Life Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47; Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419; City of Natchez v. Cranfield, 155 Miss. 540, 124 So. 656; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Woolworth Co. v. Volking, 135 Miss. 410, 100 So. 3; J.C. Penney Co. v. Scarborough, 184 Miss. 310, 186 So. 316; Code of 1930, Sec. 4908.
The trial court erred in admitting proof of another defect in the equipment at variance with the specific ground of negligence stated in the declaration.
Code of 1930, Sec. 568.
The trial court erred in admitting in evidence over appellees' objection the mortality tables showing the decedent's life expectancy.
Tucker v. Gurley, 179 Miss. 412, 176 So. 279.
The trial court erred in refusing to compel the appellant to say in the presence of the jury whether or not she was willing under the circumstances to waive the privileged communication statute and allow the physicians who attended Downing in his last illness to testify as to the cause of Downing's death.
Beard v. Williams, 172 Miss. 880, 161 So. 750; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577.
Argued orally by G.Q. Whitfield, for appellants, and by Wm. Harold Cox, for appellees.
This case was tried in the Circuit Court of the First Judicial District of Hinds County on the declaration of the appellant, Mrs. Lena H. Downing, in an action for damages against the City of Jackson and Sam Soliman and Carl Sadelmeyer, doing business as Royal American Shows. At the end of the introduction of all the evidence, the trial court granted instructions to the jury peremptorily to find for all the defendants, appellees here.
The pertinent facts on the controlling question in the case are the only ones necessary to detail here. Appellee, City of Jackson, was operating in October, 1944, the Mississippi State Fair at the Fair Grounds near Jackson, pursuant to the authority of Chapter 340, Laws 1938. Appellee, Royal American Shows, was a concessionaire at the Fair. Upon reaching the City of Jackson, it was unable to arrange with private persons to transport its equipment from the train to the Fair Grounds. As the City had performed this service for it in 1943, one of the copartners, on behalf of Royal American Shows, arranged with the City, through Mr. Martin, building inspector and in charge of the Fair Grounds for the City, to deliver its equipment at the place of exhibition and operation of the concession on the Fair Grounds. The arrangement required the trainmaster of the Royal American Shows to unload from the train a considerable number of laden trailers belonging to Royal American Shows, and upon doing so the City was required to tow them to their destination over the streets of Jackson. The connection of the Royal American Shows with this transportation transaction ceased upon the unloading above stated, except that it was to, and did, pay the City charges for the service upon the rendition of the bill by the City.
Upon such unloading of said trailers by the shows on Rankin Street in the City of Jackson, it then became the duty of the City to provide the means of transportation, as stated. In order to perform this task, Mr. Martin instructed Mr. Wright, Superintendent of Streets for the City, to utilize enough city tractors with drivers, employees of the City, to accomplish it. This was done, and among the city drivers was Gehrod B. (Jack) Downing, whose widow is plaintiff below and appellant here. Mr. Downing was assigned the hauling of one of the trailers which, with its contents, weighed several thousand pounds. This trailer had four wheels plated with solid rubber and a "tongue with a piece of grab iron on the top and on the bottom, with two holes in it, and then a pin that goes down through the two holes that connects the tractor, with a cotter pin at the bottom."
After the trailer was attached to the City's tractor, of which Mr. Downing was the driver for the City, he started to the Fair Grounds. Both he and Mr. Wright knew the trailer had no brakes of its own or in connection with the tractor, operable from the tractor. When about one hundred and fifty feet south of the intersection of South State and South Streets, the connection was broken. There is some conflict in the evidence as to how it happened. Mr. Downing was slowing down, apparently for the traffic light. There is no claim that he was violating any speed law. The tractor slowed, but the trailer did not slow down; it climbed on the tractor and the trailer tongue struck Mr. Downing in the back over the left kidney, causing the injury from which he died some weeks later, according to appellant, which claim was denied by appellees to be the cause of his death.
The trailer had no brakes thereon as required by subsection 3, Section 8249, Code 1942, as follows:
"3. Every trailer carrying over one ton, when operated upon a highway, shall be equipped with brakes, adequate to control the movement thereof and to stop and to hold such vehicle, and so designed to be applied by the driver of the towing motor vehicle from its cab; said brakes shall be so designed and connected that in case of an accidental breakaway of the towed vehicle, the brakes shall be automatically applied."
Section 8277, Code 1942, provides that every "person who commits, attempts to commit, conspires to commit, or aids or abets in the commission of, any act declared herein to be a crime, whether individually or in connection with one or more other persons or as a principal, agent, or accessory, shall be guilty of such offense."
The trailer was operated by Mr. Downing for the City at the direction of an authorized representative of the City, without coersion. At the time both knew that the trailer was not equipped with any brakes. Both appellant and appellees base their position in this case on the claim that the trailer was operated in violation of the statute at the time of the injury to Mr. Downing. Section 8275, Code 1942, sets out the penalties for violations of the statutes.
Section 8278, Code 1942, under the chapter on Motor Vehicles, provides: "It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law."
The declaration alleges that "the authorized representative of the City of Jackson directed the said Downing to drive the said road tractor after it was attached to the said trailer, and to pull said trailer from the railroad siding to said Fair Grounds, and in obedience to the command of his superior officer, he did so, and towed trailer east on Rankin Street, north on South State Street to about 200 or 250 feet of the intersection of South and South State Streets, when for some reason the said Downing undertook to slow down or to stop the said tractor, and because of lack of brakes on said trailer behind (Italics ours) the said trailer kept coming until it ran upon the body of the said tractor, turned it around in the street, and the tongue of said trailer became disconnected from the tractor . . . and knocked him off, onto the ground in an unconscious condition."
Mr. Downing died at a hospital in Jackson several weeks later, in November, having, in the meantime, returned to work for the City at this same type of employment as before the accident.
The principal defense of the City of Jackson is that since it was the duty of said City not to operate said trailer over the highway without brakes as required by the statute, supra, and also a similar duty was incumbent upon Mr. Downing under the same statute, and that both violated the statute, appellant, as the sole heir at law of her husband, the deceased Downing, cannot recover. In other words, the City and Mr. Downing were in pari delicto. In answer to this contention, appellant argues that her deceased husband's contribution to his death by his participation in this violation of law does not bar her, as his only heir at law, from prosecuting this action, but only diminishes the amount recoverable accordingly, in view of the Comparative Negligence Statute, Section 1454, Code 1942. The conclusion we have reached on this issue will dispose of the case and render unnecessary discussion of any other features of it.
Appellant's case is founded solely upon absence of brakes on this equipment, as required by law, and the application of the rule of comparative negligence, citing as to the latter, Gulf Ship Island R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, and other cases where decisions were based on negligence. But here we do not reach negligence, in our opinion, which view we discuss, post. As to the former point — the absence of brakes on the trailer — which condition was known to both the City's representative and Mr. Downing, the deceased city driver, so that both were involved in the same violation of the criminal statute in operating the trailer on the highway, appellant cites E.L. Bruce Co. v. Bramlett, 188 So. 532, where this Court affirmed a judgment against appellant for damages to appellee, whose negligence, it was said, to a large extent contributed proximately to the injury, in that appellee was driving a truck without any brakes, and in violation of a 30-mile speed limit for trucks, in nighttime, while crossing three bridges in a creek bottom on a road which was a fill. This case cannot serve appellant for two reasons: (1) It does not disclose the circumstances of the case enough to furnish a sufficient parallel to the case at bar, and (2) because an examination of the file reveals that the effect of violation of criminal statutes on the right of action by plaintiff, in which violation he was joined by defendant, was not presented to the court for decision. Appellant also cites Wheat v. Wheat, 162 Miss. 595, 139 So. 849, which, in our judgment, is not in point on the precise issue upon which our decision must turn.
Conceding, for the sake of the discussion, that Mr. Downing's death was proximately due to the injury received in the accident, supra, it must also be conceded that his widow's claim for relief is founded upon his violation of a penal statute, making it a crime to operate this trailer on a highway without brakes. The fact that he (without protest and without compulsion) obeyed the orders of his superior in the employment of the City of Jackson cannot avail him. As we said in Western Union Telegraph Co. v. McLaurin, 108 Miss. 273, 66 So. 739, 740, L.R.A. 1915C, 487: "If a plaintiff cannot open his case without showing that he has broken the law, a court will not aid him. It has been said that the objection may often sound very ill in the mouth of the 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. The principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or illegal act." The decision then quotes from the work of Judge Cooley on Torts that ". . . Whoever, by his pleadings in any court of justice, avows that he has been engaged with others in an unlawful action, or has concerted with them in an unlawful enterprise, and that in arranging for or carrying it out he has been unfairly treated by his associates, or has suffered an injustice which they should redress, will be met by the refusal of the court to look any further than his complaint, which it will at once order dismissed." See Capps et al. v. Postal Telegraph-Cable Co. (Miss.), 19 So.2d 491; and Labatt's Master and Servant, 2d Ed., Vol. 3, sec. 1278, p. 3569, where the rule is laid down that: "There can be no question that, where a servant's injury was proximately caused by the fact that he was violating a statute or municipal ordinance, the meaning and effect of which was perfectly clear, he cannot recover damages."
The Supreme Court of Georgia declared that "It would be contrary to public policy for courts to relieve a citizen of the consequences of his act in violating the law or his duty to society, and it cannot be any defense that someone else either assisted in the offense or commanded him to do it." Little v. Southern Railway Co., 120 Ga. 247, 47 S.E. 953, 955, 66 L.R.A. 509, 102 Am. St. Rep. 104. To the same effect is 39 C.J., sec. 423, pp. 296, 297, and 35 Am. Jur., sec. 239, pp. 672, 673.
In view of what is said supra, we are of the opinion that appellant was barred from any right of action in this case in view of the violation of law in the doing of the things which caused the accident, by her husband, for whose death, in consequence thereof, she sued. The peremptory instructions for appellees were correctly granted by the trial judge, as to all the appellees here, defendants there.
There are other reasons why there is no liability to appellant on the part of the Royal American Shows, but it is not necessary to discuss them, as to do so would unnecessarily prolong this opinion.
Affirmed.