Hughes v. Atlanta Steel Co.

• Decision Date: 13 June 1911
• Parties: HUGHES v. ATLANTA STEEL CO. ATLANTA STEEL CO. v. HUGHES.
• Court: Georgia Supreme Court

71 S.E. 728

136 Ga. 511

HUGHES v. ATLANTA STEEL CO.

ATLANTA STEEL CO. v. HUGHES.

Supreme Court of Georgia

June 13, 1911

Syllabus by the Court.

The collateral fact that the plaintiff and the defendant are engaged in violating the law does not prevent the former from recovering damages of the defendant for an injury negligently inflicted, unless the unlawful act contributed to produce the injury.

(a) A servant who is injured by the negligent conduct of an incompetent fellow servant, the incompetency being unknown to him, may recover from the common master damages arising from his breach of duty in knowingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged together in the violation of a penal statute of this state viz., the statute making penal the pursuit of one's business or work of ordinary calling on the Lord's Day.

The ruling in Wallace v. Cannon, 38 Ga. 119, 95 Am.Dec 385, Martin v. Wallace, 40 Ga. 52, and Redd v Muscogee R. Co., 48 Ga. 102, to the effect that when two or more parties engage in an act violative of a penal law and one of them is injured by the carelessness or negligence of the other, the injured party is not entitled to damages, should be so qualified as to provide that, to defeat a recovery in such case, the violation of the statute must be a contributing cause of the injury.

Certified Question from Court of Appeals.

Action by Robert Hughes against the Atlanta Steel Company. From the judgment, both parties appeal to the Court of Appeals, who certified a certain question of law to the Supreme Court. Question answered.

F. M. Hughes and Westmoreland Bros., for plaintiff.

Smith, Hammond & Smith, for defendant.

EVANS P.J.

The Court of Appeals has certified to us the following question of law: "Can a servant who was injured by the negligent conduct of an incompetent fellow servant, the incompetency being unknown to him, recover damages from a common master, arising from his breach of duty in knowingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged together in the violation of a penal statute of this state, viz., in pursuit of their business and work of ordinary calling on the Sabbath day? Penal Code 1910, § 422."

One injured through the negligence of another ordinarily has a right of action against a tort-feasor. The query submitted by the Court of Appeals raises the question whether this right of action is lost because, at the time of the happening of the tort, the injured person was violating a penal law. In Massachusetts it was held that a plaintiff who gratuitously assisted the defendants in clearing out a wheel pit on the Sabbath, for the purpose of preventing the stoppage, on a week day, of the defendants' mills, could not recover for the defendants' negligence, by reason of the statute making penal such work on the Sabbath day. The court based its decision on the premise that the plaintiff's act, working on the Lord's Day, was so inseparably connected with the cause of action as to prevent his maintaining the suit. McGrath v. Merwin, 112 Mass. 467, 17 Am.Rep. 119. In most jurisdictions, including the Supreme Court of the United States and the courts of England, it is held that a collateral unlawful act, not contributing to the injury, will not bar a recovery. The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular, at the time of the happening of the accident, will not bar the right of action of the former, nor make the latter liable to pay damages, unless such violation of law was the efficient cause of the injury. 1 Thomp. Neg. §§ 82, 249; 37 Cyc. 573; P., W. & B. R. Co. v. P. & H. Steam Towboat Co., 23 How. 209, 16 L.Ed. 433; Black v. City of Lewiston, 2 Idaho (Hasb.) 276, 13 P. 80; Knowlton v. Railway Co., 59 Wis. 278, 18 N.W. 17; Osaphe v. Judd, 30 Minn. 126, 14 N.W. 575; Sharpe v. Evergreen, 67 Mich. 443, 35 N.W. 67; Bigelow v. Reed, 51 Me. 325; Mohoney v. Cook, 26 Pa. 342, 67 Am.Dec. 419; Ill. Central R. Co. v. Dick, 91 Ky. 434, 15 S.W. 665; Baldwin v. Barney, 12 R.I. 392, 34 Am.Rep. 670; W. U. Tel. Co. v. McLaurin, 70 Miss. 26, 13 So. 36. As said by Judge Cooley: "The principle is that, to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury." 1 Cooley on Torts (3d Ed.) 269. The statute denouncing as penal the following of one's ordinary calling on the Lord's Day defines and declares a duty to the state. A breach of duty to the state does not necessarily involve a breach of duty to the defendant in such cases; and when it does not, it is simply an irrelevant fact, unless the law gives it relevancy in some express form. Hence the conclusion is irresistible that the plaintiff's violation of a penal statute cannot be pleaded in defense of a tort, unless such violation is a contributing cause of the injury for which compensation is asked.

But it is contended that, where both plaintiff and defendant are engaged in violating a penal statute when the former is negligently injured by the latter, the rule should be different from that applied to cases where the plaintiff alone was committing an illegal act at the time of his injury. In support of this contention the cases of Wallace v. Cannon, 38 Ga. 199, 95 Am.Dec. 385 Martin v. Wallace, 40 Ga. 52, and Redd v. Muscogee Railroad Co., 48 Ga. 102, are cited. These decisions rule that when two or more parties are engaged in the same illegal transaction, in violation of the supreme law of the land, and one of them is injured by the carelessness or negligence of the other, the court will not lend its assistance in favor of either party to recover damages. Is this ruling decisive of the question of law submitted; and, if so, are those eases so wrong in principle that they should be reviewed and modified, a request to review these cases having been made? Each of these cases arose during the late war between the states, and the alleged illegality consisted in the transportation of troops in aid of the Confederate government and in opposition to the government of the United States. In the Cannon Case, Cannon was the engineer of a train which carried Confederate soldiers and munitions of war in addition to passengers, and was killed in collision with another train of the defendant on its return trip after having transported Confederate soldiers to their destination. In none of the...