Summary
In Whitley v. Holmes, 164 Miss. 423, 144 So. 48 (1932), the court did not bar a man from recovery when he was injured in a car wreck while participating in secular work on a Sunday.
Summary of this case from Cahn v. Copac, Inc.Opinion
No. 30185.
October 31, 1932.
1. NEGLIGENCE.
Wrongful or illegal act of plaintiff which will preclude recovery for injury must have some causal connection with injury.
2. SUNDAY.
That guest violated Sunday law by transacting business on Sunday did not preclude recovery for injuries sustained in collision; there being no causal connection between violation and injury.
3. APPEAL AND ERROR.
Errors, if any, in instructions granted to plaintiff held harmless, where plaintiff was entitled, under evidence, to peremptory instruction.
APPEAL from circuit court of De Soto county. JNO. M. KUYKENDALL, Judge.
Logan Barbee, of Hernando, for appellant.
If any person, on the first day of the week, commonly called Sunday shall himself labor at his own or any other trade, calling or business, or shall employ his apprentice or servant in labor or other business except it be in the ordinary household offices of daily necessity or other work of necessity or charity he shall on conviction, be fined not more than twenty dollars for every offense, deeming every apprentice or servant so employed as constituting a distinct offense; but nothing in this section shall apply to labor on railroads or steamboats, telegraph or telephone lines, street railways, newspapers, or in the business of a livery stable, garage or gasoline stations, or ice house, and in municipalities of less than five thousand inhabitants, meat markets.
Section 1131, Code of 1930.
The authorities, without exception, lay down the rule that the contract, if not within an exception, is void, because it is made a misdemeanor, and punishable, to do secular business on Sunday, which amounts to a prohibition.
Block v. McMurry, 56 Miss. 217, 219; Strouse v. Lanctot, 27 So. 606; Thornhill v. O'Rear, 19 So. 382.
All the parties participated in the violation of the law and are in pari delicto. In such cases the court will not, where the contract has been executed, interfere for the relief of either party; but will leave them in their respective conditions. Where a contract is executory, they will likewise refrain from lending aid to carry it into effect.
Lowenburg v. Klein, 87 So. 652.
Our courts have generally held that transactions made in violation of the Sunday law were void, and that no party could recover on such contracts when they were in pari delicto.
Grapico Bottling Co. et al. v. Ennis, 106 So. 97.
The object of the statute is for the benefit of the public, and not the advantage of the defendant. It is founded on the policy that no court will lend its aid to an illegal act. The parties will be left where they placed themselves.
Block v. McMurry, 56 Miss. 217.
To drive an automobile on a highway at a greater speed than the section of the statute hereinbefore referred to permits is negligence per se, but, in order for the unlawful speed to be an element of liability for an injury inflicted by an automobile while being driven at an unlawful speed, it must appear that the unlawful speed was a proximate contributing cause of the injury. In other words if the injury would have been inflicted though the automobile was then being driven at a lawful speed there is no liability therefor, in the absence of other acts of negligence that proximately contributed to the injury.
Rowlands v. Morphis, 130 So. 906, 907.
The two other cases above cited were actions of tort by the owners, to recover damages from the bailees for injuries to personal property loaned and used on Sunday — horses immoderately driven on that day. They were decided against the plaintiffs, and chiefly on the ground of the unlawfulness of the act of loaning or letting on Sunday of the horses, to be driven on that day in violation of the statute, which the plaintiffs themselves were obliged to show, and the doctrine of the par delictum was applied. It was, in substance, held in each case that the plaintiff, by the first wrong committed by him, had placed himself in pari delicto with the defendant, with respect to the subsequent and distinct wrong committed by the latter and the actions were dismissed upon the principle that the law will not permit a party to prove his own illegal acts in order to establish his case.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534, 537.
The general principle is undoubted, that courts of justice will not assist a person who has participated in a transaction forbidden by statute to assert his rights growing out of it, or to relieve himself from the consequences of his own illegal act. Whether the form of the action is in contract or in tort, the test in each case is, whether when all the facts are disclosed, the action appears to be founded in a violation of law, in which the plaintiff has taken part.
Hall v. Corcoran, 107 Mass. 251; 9 Am. Rep. 30.
Dinkins Wilroy, of Hernando, for appellee.
Section 5575, Code of 1930, requires the showing of white lights visible at least two hundred feet in the direction toward which a motor vehicle is proceeding.
Section 5569, Code of 1930, the speed statute, prohibits the operation of a motor vehicle on a public highway at a greater rate of speed than is reasonable or proper, or so as to endanger the life or limb of any person or the safety of any property.
The driver of a motor vehicle has not the right to a clear road but must anticipate the presence of persons and vehicles thereon, must at all times drive at such rate of speed as will enable him to avoid injury to persons and vehicles when they come, or should come, under his observation.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
The driver of a motor vehicle must keep his machine under control, and be on the alert for pedestrians, and other motor vehicles on the highway. He must drive at a rate of speed which will enable him to avoid injury to those who should come under his observation. Driving, at night, at such a rate of speed as not to permit the driver to avoid injuring persons coming within the range of his lights is negligence.
Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.
A party to an action when called upon to answer for the consequences of his wrongful act done to another, cannot allege, or reply that the separate or distinct wrongful act of another, done, not to himself nor to his injury, and not necessarily connected with, or leading to, or causing or producing the wrongful act complained of.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
Himself guilty of a wrong, not dependent on nor caused by that charged to the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the state, and thus to impose upon him a penalty many times greater than what those laws prescribed. Neither justice nor sound morals require this, and it seems contrary to the dictates of both that such a defense should be allowed to prevail.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
All other conditions and circumstances remaining the same, the accident or injury would have happened on any other day as well. The same natural causes would have produced the same results on any other day, and the time of the accident or injury, as that it was Sunday, is wholly immaterial so far as the cause of it or the question of contributory negligence is concerned.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
A railroad company cannot defend for negligence for killing of an employee on the ground that he received injury while engaged in common labor on Sunday.
N.A. C.R. Co. v. Buck, 116 Ind. 566, 9 A.S.R. 883, 2 L.R.A. 520, 19 N.E. 453; I.C.R.R. Co. v. Dick, 91 Ky. 434, 15 S.E. 665.
A city cannot defend for negligence on the ground that the injured party was working on Sunday where a negligent act was proximate cause of the injury.
Kansas City v. Orr, 62 Kan. 61, 50 L.R.A. 783.
Owner of stock allowing them to run at large in violation of law, not debarred of right of recovery for injury done to them.
G.S.R. Co. v. McAlpine, 71 Ala. 545.
A violation of law is no bar to recovery for injuries sustained thru another's negligence, unless act of such character as would naturally tend to produce injuries.
Chicago v. Keefe, 114 Ill. 222, 55 A.L.R. 866, 2 N.E. 267; Crystal Ice Company v. Wylie, 65 Kan. 104; Newcomb v. Boston Protective Department, 146 Mass. 596; Reed v. Mo. P.R. Co., 50 Mo. App. 504; McNeil v. Durham C.R. Co., 135 N.C. 682.
Argued orally by R.F.B. Logan, for appellant, and by E.D. Dinkins, for appellee.
The appellee recovered a judgment against the appellant for damages for personal injuries alleged to have been sustained by him as a result of negligence of the appellant in operating an automobile in which the appellee was riding as the guest of the appellant.
The facts charged in the declaration, and supported by the evidence, were substantially as follows: The appellee was at his home in Hernando, Mississippi, on Sunday afternoon, when the appellant called him by telephone and invited him to ride with him to Memphis, Tennessee, and there visit the aviation field. The appellee accepted the invitation, saying that he was thinking of going any way in order to deliver to Ballard Holmes, who was in charge of the aviation field, some cotton tags and to give the said Holmes shipping instruction covering certain rent cotton due by Holmes to the appellee and his sister. The appellant called for the appellee, and they first proceeded to the appellee's office, where he secured the necessary cotton tags. Then they drove to the aviation field near Memphis, where the appellee delivered to Ballard Holmes the tags, and gave him instructions in reference to shipping certain cotton. They remained at the aviation field until late in the afternoon, and then started on their journey homeward, and, while driving after dark, at the rate of about forty miles an hour down grade, the appellant's automobile collided with an automobile which, without lights, was parked on the right-hand side of the paved highway on which they were traveling; the contact with the said parked automobile causing the automobile driven by the appellant to be overturned some seventy-five feet beyond the point of collision.
The appellant testified that his automobile was not equipped with a dimmer, but was equipped with what is known as two-way lights, that is, the lights could be lowered to prevent them from blinding the drivers of approaching cars; that, at the time of the collision, the lamps on his automobile lighted the roadway for a distance of seventy-five to a hundred feet, but he did not know whether or not, at that time, they were lowered. He further testified that he was keeping a sharp lookout ahead, but that, when he first discovered the parked automobile, he was within thirty or forty feet of it, "right on top of it," and that it was then impossible to avoid the collision.
The appellee testified that on the return trip from Memphis he several times warned the appellant that he was driving too fast, and suggested to the appellant that the lights were dim and insufficient. He further testified that the lights on the automobile had a range ahead of only about seventy-five feet, that they were within thirty or forty feet of the parked car when he first saw it, and it was then too late to give the appellant any effective warning.
The appellant assigns as error the refusal of the peremptory instruction requested by him in the court below, and he bases his asserted right to this instruction principally upon the ground that at the time of the accident and injury the appellee was violating the statute prohibiting the doing of secular work on Sunday. In support of this contention, the appellant relies principally upon the cases of Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, 655, and Grapico Bottling Company v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124. We do not think either of these cases is controlling or in point here. Lowenburg v. Klein, supra, was an action based on a contract in violation of the laws of the state, wherein the parties thereto were in pari delicto, and it was held that in such a case our courts will not entertain a suit for the relief of either against the other, but will leave them in their respective conditions, the court saying: "When an illegal agreement underlies and is the basis of the entire litigation, and the parties are in pari delicto, the courts will not lend their aid to the enforcement of" any right based upon such illegal agreement. In the Grapico Bottling Company Case, supra, the cause of action was based upon an alleged breach of the manufacturer's implied warranty of the purity of its bottled drinks, and it was held that this implied warranty runs with the sale of such drinks, and passes with the title, and, where the sale is made void by statute, a recovery cannot be had on such implied warranty.
Conceding for the purpose of this decision that, in delivering cotton tags and shipping instructions to his tenant, the appellee violated the statute prohibiting secular work on Sunday, and that at the time of the collision he was still engaged in this violation of law, there was no casual connection between such violation and the negligence of the appellant, which is the basis of this cause of action. A party to an action, when called upon to answer for the consequences of his own wrongful or negligent act, cannot rely in defense on the separate or distinct wrongful act of the other, done not to himself nor to his injury, and not connected with, or causing, or contributing to, the negligence complained of; but the wrongful or illegal act or conduct of the plaintiff which will preclude a recovery for the injury complained of must have some causal connection with the injury. Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534; Gross v. Miller, 93 Ia. 72, 61 N.W. 385, 26 L.R.A. 605. It is apparent that the incidental act of the appellant's guest in transacting business with his tenant while they were on their journey did not contribute to or have any casual connection with the negligent act of the appellant in driving at night, at a rate of speed which, with the lights available and in use, prevented him from detecting objects in the highway in time to avoid, by the exercise of reasonable care and caution, contact therewith, and the consequent injury and damage to persons and property.
The appellant also complains of alleged errors in certain instructions granted to the appellee. Section 5575, Code of 1930, requires that every motor vehicle which is driven at night shall carry "at least two lights, showing white lights, visible at least two hundred feet in the direction toward which such motor vehicle is proceeding," while section 5569, Code of 1930, provides that no person shall operate a motor vehicle on a public highway at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property. The appellant admits that he was driving down grade, at a speed of about forty miles per hour, with lights which rendered objects visible for a distance of not more than one hundred feet ahead of his automobile, and that, although he was keeping a sharp lookout ahead, he did not, in fact, see the parked car on the side of the highway until he was within thirty or forty feet of it, at which time it was too late to possibly avoid striking it. The evidence fails to show that the appellee was guilty of any negligence which caused or contributed to the injury, and, under all the facts in this record, we think the appellee was entitled to the peremptory instruction requested by him. Therefore the appellant was not prejudiced by the errors, if any, in the instructions granted to the appellee.
Affirmed.