Wallace v. Merrimack River Navigation & Express Co.

• Decision Date: 09 January 1883
• Citation: 134 Mass. 95
• Parties: John Wallace v. Merrimack River Navigation and Express Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 95

John Wallace v. Merrimack River Navigation and Express Company

Supreme Court of Massachusetts

January 9, 1883

Argued November 10, 1882; November 1, 1881

Essex.

The case was argued at the bar, in November 1881, by W. S. Knox for the plaintiff, and by W. F. Gile, for the defendant; and was submitted on briefs, in November 1882, by the same counsel.

Devens J. C. Allen, Colburn & Holmes, JJ., absent.

OPINION

Devens J.

The plaintiff was sailing his yacht on the Lord's day, and thus travelling in violation of the Gen. Sts. c. 84 § 2, which permits this only for reasons of necessity or charity, none of which are assigned by him. He contends that he may recover upon the first count of his declaration, alleging that the defendant carelessly and negligently ran its steamboat into his yacht while thus sailing. Where the illegal act of a plaintiff contributes to the injury he receives from the carelessness of another, he cannot recover; but if his illegal act is independent of the injury, he is not thereby precluded from recovering, although at the time he was acting in violation of law. McGrath v. Merwin, 112 Mass. 467. Lyons v. Desotelle, 124 Mass. 387. The illegal act, although contemporaneous, is then a condition merely, and not a contributory cause of the injury. White v. Lang, 128 Mass. 598. But where one travelling on the highway in violation of law sustains injury by collision with the vehicle of another carelessly driven, his own illegal act is an essential element in the case as proved by him. Lyons v. Desotelle, ubi supra. No distinction can be made between travellers with their vehicles upon the highway and those who travel for pleasure in their boats upon the river. In either case, the act of him who unlawfully travels is not merely a circumstance attending the injury, but a cause contributing to its occurrence. The plaintiff has therefore no just ground of complaint on account of the ruling of the presiding judge, that he could not maintain his action upon the first count of his declaration.

There was evidence in the case tending to show that the defendant was a common carrier of passengers, but the question whether the facts would present a case such as contemplated by the terms of the St. of 1877, c. 232, ^[*] and whether that would have any application, was not raised at the trial, nor is it here considered.

The second count of the plaintiff's declaration alleges, not a careless and negligent act on the part of the defendant in running down his boat, but a wanton and malicious one. Upon such a state of facts, although the plaintiff was in violation of the law forbidding travelling upon the Lord's day, his title to an action would be independent of his unlawful act. He would not thereby forfeit the general protection of the law, and the injury in such supposed case would proceed solely from the wrongful act of the defendant. Kidder v. Dunstable, 11 Gray 342. Smith v. Gardner, 11 Gray 418. Counter v. Couch, 8 Allen 436. Welch v. Wesson, 6 Gray 505. Spofford v. Harlow, 3 Allen 176. Damon v. Scituate, 119 Mass. 66. Smith v. Conway, 121 Mass. 216. The learned judge who presided apparently recognized this as the law; but, as in his opinion "the evidence of the plaintiff, uncontradicted and uncontrolled, would authorize the jury in finding that the defendant's servants wilfully and maliciously ran the steamer upon the plaintiff's boat," he ruled "that for such an act upon the part of its servants the defendant would not be responsible;" and thereupon directed a verdict for the defendant. This instruction treats the defendant as exonerated from responsibility, if the act done by its servants was wanton and malicious, and disregards the inquiry whether they were acting under the general authority of the defendant as their master, and for the purpose of executing its orders and doing its work. There are respectable authorities certainly, such as Richmond Turnpike Co. v. Vanderbilt, 1 Hill (N.Y.) 480, and Wright v. Wilcox, 19 Wend. 343, which hold that, where the acts of a servant are wilful, the master is not responsible, even if they are done in the performance of his business, because such wilful acts are held to be a departure from the master's business.

These with many other authorities were carefully considered in Howe v. Newmarch, 12 Allen 49; and it was there held, that, if the act...