Bucher v. Fitchburg R. Co.

• Decision Date: 09 April 1881
• Citation: 131 Mass. 156
• Parties: Theodore P. Bucher v. Fitchburg Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 156

Theodore P. Bucher v. Fitchburg Railroad Company

Supreme Court of Massachusetts

April 9, 1881

Argued November 17, 1879

Suffolk. Tort for personal injuries occasioned to the plaintiff, on Sunday, August 6, 1876, while a passenger in one of the defendant's cars. The answer set up that the plaintiff was travelling on the Lord's day in violation of law. At the trial in this court, before Ames, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

The case was argued in November 1879, and reargued in March 1881.

Exceptions sustained.

E. D Sohier & C. A. Welch, for the defendant.

A. A Ranney, for the plaintiff.

Endicott J. Colt, J., absent.

OPINION

Endicott

The first question in this case is whether the St. of 1877 c. 232, applies to actions brought after it went into effect, to recover damages from a common carrier of passengers for injuries received before its enactment. The statute is brief, and is in these words: "The provisions of section two of chapter eighty-four of the General Statutes, prohibiting travelling on the Lord's day, shall not constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling." It took effect upon its passage, May 15, 1877. The alleged injury was received in August 1876, and this action was brought in March 1878.

It may be stated as a general rule applicable to the interpretation of a statute, that it shall have a prospective operation only, unless it is distinctly expressed in the statute, or clearly to be implied from its provisions, that it is to have a retroactive effect. It was said by Chancellor Kent, that a statute is not to have any retrospective operation; and Mr. Justice Merrick, in commenting on this in Garfield v. Bemis, 2 Allen 445, said: "This statement of the doctrine, however, is undoubtedly subject to some qualification. It is not strictly and rigidly applicable in all cases in respect to statutes of a remediable character. But it is always to prevail except where a different intent is distinctly indicated and provided for. And the general rule is laid down, as one not subject to any exception, that they are never to be allowed to have a retroactive operation, where it is not required either by the express command of the Legislature or by an unavoidable implication arising from the necessity of adopting such a construction in order to give plenary effect to their provisions." Gerry v. Stoneham, 1 Allen 319. King v. Tirrell, 2 Gray 331. Whitman v. Hapgood, 10 Mass. 437. Murray v. Gibson, 15 How. 421.

Though the language of this statute is sufficient to embrace cases arising as well before as after its passage, yet there is no express provision that it shall be retroactive, and there is no necessity for so construing it, as it will have full effect if confined to cases subsequently arising. In North Bridgewater Bank v. Copeland, 7 Allen 139, the St. of 1863, c. 242, was under consideration, which provides that "Usury between the payee and the maker of a promissory note, payable on time, shall not be a defence to an action thereon, brought by the indorsee to whom the same was indorsed before maturity, for value and without notice, express or implied, of the usury;" and the court held that it did not apply to contracts which were in existence at the time of the enactment. The language of that statute in making a change in the existing law is substantially the same as the language of the St. of 1877, c. 232; and, having been passed upon by this court, it is not to be presumed that the Legislature intended to give any larger effect to the provisions of the St. of 1877. We are therefore of opinion that the St. of 1877 does not apply to this case, and that the defendant could properly set up that the plaintiff was travelling on the Lord's day.

The cases, in which it has been held that statutes regulating the rules of practice in the conduct of suits may apply to actions brought before as well as after their enactment, have no application to this case; they relate to forms of proceeding, and do not materially affect the rights of parties. Robbins v. Holman, 11 Cush. 26. George v. Reed, 101 Mass. 378, and cases cited. In the case at bar, this defence was a legitimate and proper one, under the law existing at the time of the alleged injury.

Nor can we hold, upon the facts reported, that there was any evidence which would warrant a jury in finding that the plaintiff was travelling on the 6th of August, which was the Lord's day, from necessity or charity, within the meaning of the Gen. Sts. c. 84, § 2. It appears from his reported testimony, that he was a travelling agent in New England for a fire insurance company; that his sister was unwell, and was temporarily residing in Minnesota; that on the second week of July she had written to him that she had had a severe attack of illness, and desired to be carried home to Philadelphia. And about July 15 he had written to her, stating his situation, that he was travelling, and asking her to arrange with a friend to bring her as far as Chicago, and that he would make arrangements for some one to accompany her from Chicago to Philadelphia, if her friend could not come with her any farther. To this letter he expected an answer to reach Boston in a...