Hall v. Smith

• Decision Date: 25 May 1933
• Citation: 283 Mass. 166,185 N.E. 850
• Parties: HALL v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 166

185 N.E. 850

HALL

v.SMITH.

Supreme Judicial Court of Massachusetts, Hampden.

May 25, 1933.

Exceptions from Superior Court, Hampden County; William A. Burns, Judge.

Action by William H. Hall against Seymour M. Smith. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

E. S. Searle, of Springfield, for plaintiff.

R. T. King, of Springfield, for defendant.

WAIT, J.

The plaintiff was injured in consequence of what, it is admitted, could be found to be negligent operation by the defendant of an automobile in which both were riding. The accident happened on Sunday, May 1, 1927. The plaintiff was riding in the automobile while travelling to obtain a tool which he needed to use in performing a task which the defendant had on that day hired him to perform. They were on their way to the place of performance. The task could be found to be neither an act of charity nor of necessity. No allegation of gross negligence was made in the declaration.

The case is before us, after verdict for the plaintiff, on the defendant's exceptions. He contends that the trial judge was in error in denying a motion for a directed verdict for the defendant filed at the completion of the plaintiff's opening; in denying a similar motion at the end of the testimony; and in charging the jury that liability could be made out by proof of ordinary as distinguished from gross negligence.

The bill of exceptions does not state that it sets out the substance of all the material evidence. This, of itself, is enough to justify overruling these exceptions, but as the result is unchanged and as the bill might readily be amended, we go on to consider the questions. Commonwealth v. McNary, 246 Mass. 46, 48, 140 N. E. 255, 29 A. L. R. 483.

Unless the excepting party then rests, he has no good exception to the denial of a motion for directed verdict at the close of the opening. Meeney v. Doyle, 276 Mass. 218, 221, 177 N. E. 6, and cases cited. The defendant did not rest.

All the exceptions are based upon the contention that since, as appeared from the plaintiff's opening and evidence, he was engaged in a violation of the statutes with reference to the observance of the Lord's day (G. L. [Ter. Ed.] c. 136), he could not recover in this action.

Whatever force such a contention might once have had under our early statutes and decisions (see as illustrations Bosworth v. Swansey, 10 Metc. 363,43 Am. Dec. 441;McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119;Davis v. Somerville, 128 Mass. 594, 35 Am. Rep. 399;Day v. Highland Street Railway, 135 Mass. 113, 44 Am. Rep. 447;Read v. Boston & Albany Railroad, 140 Mass. 199, 4 N. E. 227) has been taken away by G. L. (Ter. Ed.) c. 136, § 20. Jordan v. New York, New Haven & Hartford Railroad, 165 Mass. 346, 43 N. E. 111,32 L. R. A. 101, 52 Am. St. Rep. 522. That section enacts that: ‘The provisions of this chapter [Observance Of The Lord's Day] shall not constitute a defence to an action for a tort or injury suffered by a person on the Lord's day.’ It is a continuation of St. 1884, c. 37 through R. L. c. 98, § 17. In speaking of it in Bourne v. Whitman, 209 Mass. 155, at page 168, 95 N. E. 404, 406,35 L. R. A. (N. S.) 701, Knowlton, C. J. said: ‘The Sunday Law, so called, has been repealed as to its effect as a bar to recovery in actions of tort showing a violation of it by the plaintiff. R. L. c. 98, § 17.’ This interpretation is borne out by the terms of the amending acts. After decisions that one who was travelling on Sunday for something other than charity or necessity could not recover although injured by the negligence of railways or railroads which carried them or through faults of others which had no real connection of cause and effect with the violation of the Lord's Day Act, in 1877, by chapter 232 of the acts of that year the Legislature amended the law so that the provision prohibiting travel on the Lord's day (Gen. St. 1860, c. 84, § 2) should not ‘constitute a defence to an action against a common carrier of passengers for a tort or injury suffered by a person so travelling.’ By St. 1884, c. 37 this was broadened so that the nonobservance was no longer confined merely to travel, but was extended to all the prohibitions of Pub. St. 1882, c. 98, with reference to observance of the Lord's day, and others than common carriers of passengers could be held liable. The act read: ‘The provisions of chapter ninety-eight of...