Todd v. Traders' & Mechanics' Ins. Co.

• Decision Date: 26 June 1918
• Citation: 120 N.E. 142,230 Mass. 595
• Parties: TODD et al. v. TRADERS' & MECHANICS' INS. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 595

120 N.E. 142

TODD et al.

v.TRADERS' & MECHANICS' INS. CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1918.

Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge.

Actions by C. L. Todd and others against the Traders' & Mechanics' Insurance Company, the Worcester Mutual Fire Insurance Company, the Quincy Mutual Fire Insurance Company, the Middlesex Mutual Fire Insurance Company, the Holyoke Mutual Fire Insurance Company, and the Dorchester Mutual Fire Insurance Company. Verdicts for plaintiffs, and defendants except. Exceptions overruled.

Warner, Stackpole & Bradlee, of Boston (J. G. Palfrey and R. J. Cotter, both of Boston, of counsel), for plaintiffs.

Harold Williams, Jr., and Edward C. Mason, both of Boston (Barker & Wood, of Boston, of counsel), for defendants.

DE COURCY, J.

These are six actions upon fire insurance policies, in the Massachusetts standard form, to recover for loss or damage by fire. The plaintiffs owned the premises as trustees under the will of George G. Tarbell, deceased; and the plaintiff Tarbell was the sole beneficiary, The buildings insured consisted of a dwelling-house, barn and shed, situated in the town of Lincoln. It appears that about one hundred feet back from the barn and extending parallel with it was a raspberry bed a few feet wide. Along the side of the bed away from the barn was a two-foot grass path; and beyond this was a garden patch, about seventy by one hundred feet in size.

On March 13, 1915, Mr. Tarbell and his wife drove over to the premises, from Winchester, and he spent most of the afternoon working on the raspberry bed, ‘raking it over and cleaning out loose ends,’ etc. A question arose with reference to the grass path, and some discussion as to whether it would be better to burn it over rather than rake it. To Mrs. Tarbell's question, ‘wouldn't you scorch the raspberries?’ he said, ‘I don't believe so; let us go and see.’ He further testified, ‘I took a match and when I lit the match the grass was hanging over into the bed and I lit the grass hanging over into the bed to see if it would scorch the raspberries.’ Flames flared up and Mr. Tarbell, being satisfied with his experiment, stamped them out. Then, looking up, he saw a little flame starting fifteen or twenty feet the other side of the raspberry bed. He summoned help to his assistance, and they used every effort to extinguish the fire; but when the fire department arrived ten minutes later the barn was on fire.

The contention of the defendants is that the plaintiffs cannot recover on the policies because the fire was started by Mr. Tarbell in violation of St. 1911, c. 244, § 1, which strikes out section 1 of St. 1908, c. 209, and substitutes therefor the following:

‘It shall be unlawful within any city, or within any town which accepts the provisions of this act, for any person to set a fire in the open air between the first day of March and the first day of December except by the written permission of the forest warden, or the chief of the fire department or, incities that have such an official, the fire commissioner: Provided, that débris from fields, gardens and orchards, or leaves and rubbish from yards may be burned on ploughed fields by the owners thereof, their agents or lessees: And provided, further, that persons above eighteen years of age may maintain a fire for a reasonable purpose upon sandy or barren land, if the fire is enclosed within rocks, metal or other noninflammable material. In every case such fire shall be at least two hundred feet distant from any forest or sprout lands, and at least fifty feet distant from any building, and shall be properly attended until it is extinguished. The forest warden shall cause public notice to be given of the provisions of this section, and shall enforce the same. Whoever violates the provisions of this section shall be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than one month, or by both such fine and imprisonment.’

It is undisputed that the town of Lincoln had duly accepted this statute, and that Mr. Tarbell had no ‘written permission.’ Although the meager bill of exceptions does not disclose the special questions which were submitted to the jury, and does not purport to contain all the material evidence, we assume that the fire was not set on ‘ploughed fields,’ within the meaning of the statute, and that the question whether said violation of the statute preventsa recovery on the policies as matter of law is open to the defendants on their motions for directed verdicts.

In actions of tort (where the question generally arises), while a plaintiff cannot obtain the aid of a court to relieve him from the direct consequence of his own illegal act (see Banks v. Highland St. Ry., 136 Mass. 485,Brunelle v. Lowell Eectric Light Corp., 188 Mass. 493, 74 N. E. 676), the mere fact that he was violating a statute or ordinance when injured does not necessarily prevent his recovery. Such violation is considered ‘evidence of negligence’ on the part of the violator, as to all consequences that the statute was intended to prevent. Bourne v. Whitman, 209 Mass. 155, 167, 95 N. E. 404,35 L. R. A. (N. S.) 701;Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797. If however, his violation of law was merely a condition or an attendant circumstance of his injury, and not a proximate contributing cause, he may recover from the wrongdoer. Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354. For...