Hoadley v. Int'l Paper Co.

• Decision Date: 04 December 1899
• Citation: 47 A. 169,72 Vt. 79
• Parties: HOADLEY v. INTERNATIONAL PAPER CO.
• Court: Vermont Supreme Court

47 A. 169

72 Vt. 79

HOADLEY

v. INTERNATIONAL PAPER CO.

Supreme Court of Vermont. Rutland.

Dec. 4, 1899.

Exceptions from Rutland county court; Watson, Judge.

Action by Justus R. Hoadley, administrator of the estate of Michael Kennedy, deceased, against the International Paper Company. From a judgment in favor of plaintiff, defendant brings exceptions. Affirmed.

The decedent, while at work upon repairs to a pulp digester in the defendant's mill, received injuries which caused his death within two or three days thereafter.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, and THOMPSON, JJ.

Butler & Moloney, for plaintiff.

Joel C. Baker, for defendant.

THOMPSON, J. 1. The defendant excepted to the refusal of the county court to direct a verdict for it on the ground that the alleged negligence causing the death of the decedent occurred while he was at work Sunday on the defendant's pulp digester in its paper mill at Bellows Falls, Vt. The defendant also excepted to the charge to the jury on this subject. The instruction was, in substance, that the plaintiff was entitled to recover, if his case was made out in other respects, notwithstanding that the decedent at the time of the accident was working for the defendant on Sunday, if the jury found that defendant's negligence was the proximate cause of his death, and his working Sunday the remote cause. It is now contended by the defendant that the decedent was working in violation of V. S. § 5140, which prohibits the exercise of any business or employment, except works of necessity or charity, between 12 o'clock Saturday night and 12 o'clock the following Sunday night, under a penalty of not more than two dollars, and that consequently the plaintiff is precluded from recovery. The jury found that the negligence of the defendant was the proximate cause of the death of the decedent, and that he was not guilty of contributory negligence.

There is a conflict of authorities on this subject, but the view adopted by the weight of authority is against the contention of the defendant. This view accords with reason and the general principles of the law applicable to torts. The fact that the decedent was working for the defendant on Sunday cannot be said to be, either in law or in fact, contributory negligence concurring to produce the injury, nor the proximate cause of it This view is recognized in Johnson v. Irasburgh, 47 Vt. 32, which was decided on the ground that the town was not bound to maintain its highway for use by the plaintiff for an unlawful purpose. Holcomb v. Danby, 51 Vt. 435, cited by defendant, was decided on the same ground. Duran v. Insurance Co., 63 Vt. 440, 22 Atl. 530, 13 L. R. A. 637, turned upon the terms of the contract on which plaintiff claimed to recover. The court below, without submitting the question of proximate cause to the jury, should have held that it was no defense to defendant's negligence that the decedent was working for it on Sunday when its negligence caused his death. Baldwin v. Barney, 12 R. I. 392, 34 Am. Rep. 670; Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534; Baker v. Portland, 58 Me. 199, 4 Am. Rep. 274; Philadelphia, W. & B. R. Ob. v. Philadelphia & H. de G. Steam Towboat Co., 23 How. 209, 16 L. Ed. 430; Platz v. City of Cohoes, 89 N. Y. 219, 42 Am. Rep. 286; Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453, 9 Am. St. Rep. 883; Schmid v. Humphrey, 48 Iowa, 652, 30 Am. Rep. 414; Boydon v. Railroad Co., 70 Vt. 125, 39 Atl. 771. The motion for a verdict on this ground was properly denied. The charge on this subject was more favorable to the defendant than it was entitled to have given, and the exception thereto cannot be sustained.

2. The defendant excepted to the refusal of the court to direct a verdict for it on the ground that the decedent, at the time of its alleged negligence, was its servant, and received the injuries causing his death by reason of the negligence of a fellow servant, another employé of the defendant. One Spring was a builder and contractor, for whom the decedent had worked for many years next before his death. When the defendant had occasion to have work done in the way of certain repairs about its mill, it called on Spring to do it, and he sent his men, including the decedent, to do what was needed. The bill of exceptions, referring to the time when the decedent received the injuries causing his death, states that "Kennedy, while at work on this occasion, was in the employ of Mr. Spring, and no testimony was introduced tending to show that he was either employed or paid or governed or directed by the defendant or any one in its employ." Although all the evidence is referred to in connection with the motion for a verdict, the defendant's counsel has not called our attention to any evidence tending to contradict or modify this statement in the record, nor have we found any having such effect. Standing thus, the question of fellow servant is not involved, as the decedent was the servant of Spring, and not of the defendant. Sherman v. Canal Co., 71 Vt. 325, 45 Atl. 227, and authorities there cited. Therefore the county court...