Smith v. Rollins

• Decision Date: 24 February 1877
• Citation: 11 R.I. 464
• Parties: FREDERICK J. SMITH v. WILLIAM ROLLINS.
• Court: Rhode Island Supreme Court

11 R.I. 464

FREDERICK J. SMITH v. WILLIAM ROLLINS.

Supreme Court of Rhode Island.

February 24, 1877

A statute being in force and providing that " every person who shall do or exercise any labor or business, or work of his ordinary calling, .... on the first day of the week, or suffer the same to be done .... by his children, servant, or apprentices, works of necessity and charity only excepted shall be fined not exceeding" ....

S., a livery stable-keeper, let, in his ordinary business, a horse and carriage to be driven for pleasure to a particular place. The hirer drove them to a different place, and returned them damaged. Whereupon S. brought trover against the hirer: -

Held, affirming Whelden v. Chappel, 8 R.I 230, that the action would not lie.

Where a plaintiff's cause of action arises from a violation of law on his part the suit cannot be sustained, and it is immaterial whether the violation of law appears from the plaintiff's direct evidence or is elicited from him by legitimate cross-examination.

EXCEPTIONS to the Court of Common Pleas.

Trover for the conversion of a horse, buggy, and harness originally brought in the Justice Court of the city of Providence, and appealed by the plaintiff to the Court of Common Pleas. The writ was dated April 24, 1874. The defendant pleaded the general issue.

At the trial in the Court of Common Pleas, after the evidence had been closed, the plaintiff requested the presiding judge to charge the jury as follows: -

1. When a livery stable-keeper, in the exercise of his ordinary calling, lets a horse and buggy to be driven to a particular place on Sunday, not being called for either by necessity or charity, and the hirer drives them to another place, such use of said property amounts to a conversion thereof by the hirer, for which he will be liable in an action of trover, if the contract of hiring need not be and is not proven as a necessary part of the plaintiff's case.

2. A person who hires a horse and buggy of a livery stable keeper on a week day to drive to a particular place on Sunday for pleasure, and drives to another place, is liable in trover for the conversion of them.

The judge refused so to charge; but did instruct the jury that if the plaintiff, in the exercise of his ordinary business or calling, agreed on a week day to let his horse and buggy to the defendant to be used on Sunday, and not in a case of either necessity or charity, and did, pursuant to said agreement, deliver such horse and buggy to the defendant on Sunday, it was a contract made in violation of law; and that therefore the plaintiff could not sustain an action of trover for the conversion of the property by the defendant's driving it to a different place from that specified in the contract of hiring; and that the ability of the plaintiff to establish his case without proving the illegal contract was immaterial, if the illegal contract appeared from the whole testimony in the case.

The plaintiff excepted, and, after verdict for the defendant, brought his exceptions as allowed to this court.

George B. Barrows, for the plaintiff, in support of the exceptions.

The two questions raised by the bill of exceptions are: 1. Whether a livery stable-keeper who, in the exercise of his ordinary calling, lets a horse and buggy to be driven to a particular place on Sunday for pleasure, can maintain an action of trover against the hirer who drives them to another place and injures them; and 2. Whether he can maintain such action, if the contract of hiring need not be, and is not, proven by the plaintiff as a necessary part of his case.

The only grounds upon which the plaintiff's right to redress has been denied in this class of cases are, that his cause of action is founded upon his illegal contract, and he must himself show his illegal contract in order to establish his case. Gregg v. Wyman, 4 Cush. 322; Whelden v. Chappel, 8 R.I. 230.

But these propositions have failed to stand the test of judicial criticism and practice. Woodman v. Hubbard, 25 N.H. 67; Morton v. Gloster, 46 Me. 520; Nodine v. Doherty, 46 Barb. S.C. 59; Hall v. Corcoran, 107 Mass. 251; Frost v. Plumb, 40 Conn. 111.

The plaintiff's action is for the conversion of his property. The conversion consists in the use of it by the defendant for his own benefit, without the plaintiff's permission; and such use is a conversion, because it is in exclusion and defiance of the plaintiff's right as owner. 2 Greenl. Ev. § 642; 1 Chitty on Pl. 146.

The plaintiff's injury, therefore, is not a violation of any contract or of any right arising therefrom, but of the right of ownership; and upon that right is his cause of action founded. Homer v. Thwing, 3 Pick. 492; Dwight v. Brewster, 1 Ibid. 50. The last case was approved in Meyers v. Meinrath, 101 Mass. 366.

That the plaintiff need not prove his unlawful act is expressly decided by cases heretofore cited, and is illustrated by the present case. The only two things necessary for the plaintiff to prove are property in himself, and conversion by the defendant. 1 Chitty on Pleading, 146, citing Lord Mansfield in 1 Burr. 31. And conversion consists only in beneficial use and absence of permission for such use.

Evidence of a bailment, therefore, is relevant only to the question of authority in the defendant to use the property. That there was no authority, it is submitted, is quite as properly and effectually proved by the plain, direct, and full statement to that effect of the plaintiff, as by proving authority for one thing, and leaving it to be merely inferred that there was none for another. It may be questioned if a prudent lawyer would trust to the inference and fail to elicit a direct and positive denial of any authority.

If such denial be made, then what necessity is there for evidence of any bailment? Upon the question of authority, and to disprove conversion, it may be necessary, in a given case, for the defendant to show the bailment, and that he was acting within its terms. But in this case, the fact that there was any contract whatever is not only made to appear solely by the defendant himself, but it is proven for the only purpose of showing it to be in violation of a penal statute made to enforce morality, and of invoking its illegality, in which he participated, to secure immunity from liability for the wrongful destruction of his neighbor's property.

" But he can no more avail himself of that as a defence than the plaintiff can as a cause of action. Either party whose success depends upon proving his own violation of law must fail." Frost v. Plumb, 40 Conn. 111; Welch v. Wesson, 6 Gray, 505.

The fact that the plaintiff had done an unlawful act in respect to his property does not commit it to the mercy of wrongdoers. That would be practical outlawry, which " is putting a man out of the protection of the law, so that he is incapable of bringing an action for redress of injuries, and it is also attended with a forfeiture of all one's goods and chattels." 3 Bl. Com. 284; Cummings v. Perham, 1 Met. 555; Ewings v. Walker, 1 Gray, 95; Steele v. Burkhardt, 104 Mass. 59.

The decision in Gregg v. Wyman, 4 Cush. 322, did not distinguish between those cases where the plaintiff's right grows out of, rests upon, and is ascertained by the unlawful contract, and his injury is a mere invasion of such contract right, i. e. where his cause of action is founded upon his unlawful act; and those cases where the plaintiff's right is independent of, and separable from, such contract, and his injury is an invasion of that right, i. e. where his cause of action is not founded upon his unlawful act. It takes for granted the only two vital propositions in the case. It cites an imposing array of cases whose authority no one questions, to establish general rules of law whose existence no one doubts, and applies them to assumptions whose correctness every one denies. It has been overruled. Hall v. Corcoran, 107 Mass. 251.

The case of Whelden v. Chappel, 8 R.I. 230, was decided upon the authority of Gregg v. Wyman, 4 Cush. 322, before the latter was reversed, and adopted its conclusions. The attention of the court was apparently not called to the above distinction, nor do the two cases then reported, in which it is pointed out and applied, appear to have been cited. Moreover, the illegal contract was made to appear as a part of the plaintiff's case.

Henry J. Spooner, for the defendant, contra, cited Whelden v. Chappel, 8 R.I. 230.

MATTESON J.

The bill of exceptions raises the question whether a livery stable-keeper, who, in his ordinary business, lets a horse and carriage to be driven to a particular place on Sunday, for pleasure, can maintain an action of trover against the hirer for driving them to a different place.

Such a contract, to be executed on Sunday, in violation of the statute prohibiting the doing or exercising of any labor or business, or work of one's ordinary calling, works of necessity and charity only excepted; or the using of any game, sport, play, or recreation on the first day of the week, is illegal. Gen. Stat. R.I. cap. 232, § 17; Allen v. Gardiner et al. 7 R.I. 22; Whelden v. Chappel, 8 R.I. 230.

In the latter case, which was similar to the present, the conversion consisted solely in driving the horse and buggy beyond the place specified in the hiring. The court held that proof of that contract, which was illegal, was necessary to establish the conversion, and that the plaintiff, therefore, could not recover.

The evidence in the present case, exclusive of the contract of bailment, discloses nothing in the defendant's use or treatment of the property, or in his conduct in relation to it, which amounts to a conversion; for though the property was returned in a...