Wheelden v. Lyford

• Decision Date: 16 December 1891
• Citation: Wheelden v. Lyford, 84 Me. 114, 24 A. 793 (Me. 1891)
• Parties: WHEELDEN v. LYFORD, (two cases.)
• Court: Maine Supreme Court

24 A. 793

84 Me. 114

WHEELDEN

v. LYFORD, (two cases.)

Supreme Judicial Court of Maine.

Dec. 16, 1891.

(Official.)

Appeal from supreme judicial court, Penobscot county.

Two actions by Albert Wheelden against Frank Lyford,—one on an account for horse hire, and the other in tort for damages to the team.

Facts agreed.The parties stated their cases as follows: Two actions, one upon account annexed for horse hire, the other in tort for damage to the team, through defendant's negligence, while in his possession, under said contract of hire.The team was hired and used for pleasure on Sunday, December 21, 1890, and was injured by defendant's negligence, as aforesaid, and returned in a damaged condition.

Peregrine White, for plaintiff.

P. H. Gillin, for defendant.

EMERY, J.The defendant on Sunday, or Lord's day, hired of the plaintiff a team for the purpose of pleasure driving on the same day.The defendant used the team for that purpose on that day, as the plaintiff supposed he would, and while so using the team he injured it, not willfully, but solely by his negligence.He returned the team to the plaintiff in a damaged condition on the same day, and refused to pay for the injury or the hire.The plaintiff thereupon afterwards brought these two actions,—one in case for the injury caused by the defendant's negligence, the other in assumpsit for the hire.The defendant invokes in defense of both actions the "Sunday Law,"(Key. St.c. 124, § 20.)

Before the enactment of Rev. St. c. 82, § 116, in 1880, the plaintiff could not have maintained either action.The contract itself was of course void under the old law; and Parker v. Latner, 60 Me. 528, expressly decides that on these facts an action for negligence could not have been maintained.

How far has the new statute(Rev. St. c. 82, § 116) changed the law?It does not in terms make lawful anything which was before unlawful.It does not say that contracts made on Sunday are valid or enforceable, it does not say that men may work on Sunday or play on Sunday without offense.No inhibitions of the statute or common law against Sunday business or pleasures are repealed.The new statute does not create any new rights of action.It simply forbids the interposition of the "Sunday Law," in defense to certain enumerated actions in certain enumerated cases.Those actions and cases not enumerated in the statute remain unaffected by it.The statute is limited in terms to actions upon contracts where the defendant has received a valuable consideration.In such an action and case the defendant is delayed in interposing the "Sunday Law" in defense until he restores the consideration.If he restores the consideration, he may then interpose that defense and defeat the action.

The hiring and using of this team on Sunday were illegal.The plaintiff was a party to that illegal transaction.The statute does not forbid the defendant defending on that ground against the action on the case for negligence.Such an action is not named nor implied in the statute.It may be a casus omissus, but we cannot supply it.We...