Perry v. Stanfield

• Decision Date: 04 April 1932
• Parties: PERRY v. STANFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 563

180 N.E. 514

PERRY

v.STANFIELD.

Supreme Judicial Court of Massachusetts, Essex.

April 4, 1932.

Exceptions from Superior Court, Essex County; Henry T. Lummus, Judge.

Action by Frank Perry, Jr., administrator, against Richard Stanfield. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained.A. J. Santry and F. Fish, both of Boston, for plaintiff.

E. J. Garity, of Lynn, for defendant.

RUGG. C. J.

Damages are sought in this action of tort for the conscious suffering and death of the plaintiff's intestate alleged to have been caused by the negligence of the servants of the defendant. The intestate was working on a power boat which was in collision with a fishing schooner. It is conceded that there was evidence to support a finding that the collision was caused by the negligence of the servants of the defendant acting within the scope of their employment in charge of the schooner. It is not contended that it could not rightly have been found that the suffering and death of the intestate resulted from that collision. The collision occurred in the late forenoon of a June morning in navigable waters at the mouth of Gloucester Harbor. Although the sun was not visible, the weather was clear. The intestate was one of three on board the power boat, all employees of its owner. The power boat was about thirty feet long and eight feet wide. It was loaded with barrels of fish waste. The object of its voyage and the duty of its crew were to dump into the water the contents of the barrels. There was evidence tending to show these facts: One Carr, a fellow employee of the intestate, had sole charge of the operation and navigation of the power boat. After leaving the wharf, the power boat proceeded down the harbor to a point outside the breakwater, where the navigable channel was about half a mile wide and where Carr pulled out the clutch of the engine and ‘allowed it to idle.’ From this point those on board could see the harbor plainly. The three men started dumping the contents of the barrels into the water and had emptied all but three or four barrels. Carr and the intestate were at the forward end and the other man at the stern. Carr, happening to turn around, saw the schooner bearing down upon them, under power, from the harbor and about one hundred feet away. The three men cried out loudly toward the schooner, which did not change her course or speed. Carr and aft, speeded up his engine to go ahead and ‘threw his wheel hard aport to go to starboard and straighten out his boat in the same direction the schooner was going.’ He testified ‘I started to cross the schooner's bow in that position. I was taking the chance of the schooner going right over my bow.’ The starboard side of the schooner collided with the port side of the power boat, which turned over and filled with water. The intestate was drowned.

1. The courts of this commonwealth have jurisdiction of the cause of action set forth in the plaintiff's declaration. It was agreed by the parties that the collision occurred not on the high seas but on the inland navigable waters of the United States as defined by the United States Code. It is not contended that the cause of action did not occur within the territorial limits of the commonwealth. G. L. c. 1, § 3; Manchester v. Massachusetts, 139 U. S. 240, 11 S. Ct. 559, 35 L. Ed. 159. Although the cause of action falls within the admiralty jurisdiction of the United States, it is cognizable in the courts of this commonwealth by virtue of the provisions of the Judicial Code. Act of March 3, 1911, c. 231, § 24, cl. 3, and section 256, cl. 3, 36 U. S. Sts. at Large, 1091, 1161, 28 USCA § 41 (3), 371 (3). It there is provided that exclusive jurisdiction is vested in the courts of the United States of all ‘civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.’ The count in the plaintiff's declaration for conscious suffering comes within this saving clause. Proctor v. Dillon, 235 Mass. 538, 541, 542,129 N. E. 265, and federal decisions three reviewed. The count for death, although founded not on the common law but on a statute amending and enlarging the common law, likewise falls within the saving clause and is within the jurisdiction of the courts of this commonwealth. That is settled by several authoritative decisions. American S. B. Co. v. Chase, 16 Wall. 522, 21 L. Ed. 369;Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819;Knapp Stout & Co. Company v. McCaffrey, 177 U. S. 638, 644, 20 S. Ct. 824, 44 L. Ed. 921; The Hamilton, 207 U. S. 398, 404, 28 S. Ct. 133, 52 L. Ed. 264;Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210;Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 125, 44 S. Ct. 274, 68 L. Ed. 582;Panama Railroad v. Vasquez, 271 U. S. 557, 46 S. Ct. 596, 70 L. Ed. 1085;Messel v. Foundation Co., 74 U. S. 427, 434, 47 S. Ct. 695, 71 L. Ed. 1135;Langnes v. Green, 282 U. S. 531, 51 S. Ct. 243, 75 L. Ed. 520.

This point was raised by a request for ruling presented to the trial judge. Since it touches the jurisdiction of the court to entertain the case, it must be determined, although not argued in the defendant's brief. Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, 5 A. L. R. 1426;Commonwealth v. Dyer, 243 Mass. 472, 508, 138 N. E. 296.

2. There wereput in evidence (according to the record) section 407, 411, of title 33, U. S. Code Annotated (Act of Congress of March 3, 1899, c. 425, §§ 13, 16, 30 U. S. Sts. at Large, 1152, 1153), whereby is prohibited under severe penalty the dumping of refuse into any navigable water of the United States. Therefore the voyage of the power boat and the work of its crew, including the intestate, were for the accomplishment of an illegal act in violation of a criminal law. Their presence at the time and place of the collision was in direct promotion of that illegal purpose. The sections of the statutes of the United States invoked by the defendant do not prohibit the operation in navigable waters of a boat engaged in the unlawful purpose. They simply forbid the discharge of refuse and impose a penalty for violation of that prohibition. The terms of those sections are different in form and substance from St. 1903, c. 473, § 3 (now G. L. c. 90, § 9, as most recently amended by St. 1931, c. 95), whereby the operation of an unregistered motor vehicle upon any way is prohibited under penalty which was interpreted in Dudley v. Northampton Street Railway Co., 202 Mass. 443, 447, 448, 89 N. E. 25,23 L. R. A. (N. S.) 561, to make such unregistered motor vehicles outlaws upon the ways. The principle illustrated by that decision and the many following it, Balian v. Ogassian (Mass.) 179 N. E. 232, is not applicable to the case at bar. The language of the federal statute conveys no indication of intent to protect others operating in navigable waters from collision with craft being used for dumping the prohibited material into the water. Its plain purpose is to protect navigable waters from pollution and shoaling through the prohibited conduct. Compare Joly v. Salem (Mass.) 177 N. E. 121. The principles of law applicable to a case like the present were exhaustively considered in Bourne v. Whitman, 209 Mass. 155, at pages 166, 167, 95 N. E. 404, 406,35 L. R. A. (N. S.) 701, where the court, speaking through Chief Justice Knowlton, said: ‘It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. * * * It is not even evidence of negligence, except in reference to matters to which the statute relates.’ The rule there amplified with affluent reference to decided cases is in substance that a plaintiff engaged in a criminal act at the time of suffering injury through the negligence of another is not by that fact alone precluded from recovery of damages. He is so precluded provided the element of criminality directly contributes to his injury. He is not so precluded provided the element of criminality does not directly contribute to his injury. The law on its civil side will not aid a violator of the criminal law in seeking relief from the consequences of his transgression; but it will not deny relief if the illegal factor in the conduct of a plaintiff has no causal connection with the injury for which he asks compensation. The distinction is between an illegal act which is a mere condition and an illegal act which is a contributing cause. Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354;Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 493, 499, 95 N. E. 876, Ann. Cas. 1912B, 797;Jones v. New York, New Haven & Hartford Railroad, 275 Mass. 139, 175 N. E. 487;St. Louis, Iron Mountain & Southern Railway v. McWhirter, 229 U. S. 265, 279-282, 33 S. Ct. 858, 57 L. Ed. 1179.

We are of opinion that it could not rightly be found that the illegal element in the conduct of the intestate, namely, participation in the...