Whitley v. Holmes
| Decision Date | 31 October 1932 |
| Docket Number | 30185 |
| Citation | 144 So. 48,164 Miss. 423 |
| Court | Mississippi Supreme Court |
| Parties | WHITLEY v. HOLMES |
1 NEGLIGENCE.
Wrongful or illegal act of plaintiff which will preclude recovery for injury must have some causal connection with injury.
2 SUNDAY.
That guest violated Sunday law by transacting business on Sunday did not preclude recovery for injuries sustained in collision; there being no causal connection between violation and injury.
3. APPEAL AND ERROR.
Errors if any, in instructions granted to plaintiff held harmless where plaintiff was entitled, under evidence, to peremptory instruction.
JNO. M. KUYKENDALL, Judge.
APPEAL from circuit court of De Soto county, JNO. M. KUYKENDALL, Judge.
Action by George W. Holmes against J. R. Whitley. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Logan & Barbee, of Hernando, for appellant.
If any person, on the first day of the week, commonly called Sunday shall himself labor at his own or any other trade, calling or business, or shall employ his apprentice or servant in labor or other business except it be in the ordinary household offices of daily necessity or other work of necessity or charity he shall on conviction, be fined not more than twenty dollars for every offense, deeming every apprentice or servant so employed as constituting a distinct offense; but nothing in this section shall apply to labor on railroads or steamboats, telegraph or telephone lines, street railways, newspapers, or in the business of a livery stable, garage or gasoline stations, or ice house, and in municipalities of less than five thousand inhabitants, meat markets.
The authorities, without exception, lay down the rule that the contract, if not within an exception, is void, because it is made a misdemeanor, and punishable, to do secular business on Sunday, which amounts to a prohibition.
Block v. McMurry, 56 Miss. 217, 219; Strouse v. Lanctot, 27 So. 606; Thornhill v. O'Rear, 19 So. 382.
All the parties participated in the violation of the law and are in pari delicto. In such cases the court will not, where the contract has been executed, interfere for the relief of either party; but will leave them in their respective conditions. Where a contract is executory, they will likewise refrain from lending aid to carry it into effect.
Lowenburg v. Klein, 87 So. 652.
Our courts have generally held that transactions made in violation of the Sunday law were void, and that no party could recover on such contracts when they were in pari delicto.
Grapico Bottling Co. et al. v. Ennis, 106 So. 97.
The object of the statute is for the benefit of the public, and not the advantage of the defendant. It is founded on the policy that no court will lend its aid to an illegal act. The parties will be left where they placed themselves.
Block v. McMurry, 56 Miss. 217.
To drive an automobile on a highway at a greater speed than the section of the statute hereinbefore referred to permits is negligence per se, but, in order for the unlawful speed to be an element of liability for an injury inflicted by an automobile while being driven at an unlawful speed, it must appear that the unlawful speed was a proximate contributing cause of the injury. In other words if the injury would have been inflicted though the automobile was then being driven at a lawful speed there is no liability therefor, in the absence of other acts of negligence that proximately contributed to the injury.
Rowlands v. Morphis, 130 So. 906, 907.
The two other cases above cited were actions of tort by the owners, to recover damages from the bailees for injuries to personal property loaned and used on Sunday --horses immoderately driven on that day. They were decided against the plaintiffs, and chiefly on the ground of the unlawfulness of the act of loaning or letting on Sunday of the horses, to be driven on that day in violation of the statute, which the plaintiffs themselves were obliged to show, and the doctrine of the par delictum was applied. It was, in substance, held in each case that the plaintiff, by the first wrong committed by him, had placed himself in pari delicto with the defendant, with respect to the subsequent and distinct wrong committed by the latter and the actions were dismissed upon the principle that the law will not permit a party to prove his own illegal acts in order to establish his case.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534, 537.
The general principle is undoubted, that courts of justice will not assist a person who has participated in a transaction forbidden by statute to assert his rights growing out of it, or to relieve himself from the consequences of his own illegal act. Whether the form of the action is in contract or in tort, the test in each case is, whether when all the facts are disclosed, the action appears to be founded in a violation of law, in which the plaintiff has taken part.
Hall v. Corcoran, 107 Mass. 251; 9 Am. Rep. 30.
Dinkins & Wilroy, of Hernando, for appellee.
Section 5575, Code of 1930, requires the showing of white lights visible at least two hundred feet in the direction toward which a motor vehicle is proceeding.
Section 5569, Code of 1930, the speed statute, prohibits the operation of a motor vehicle on a public highway at a greater rate of speed than is reasonable or proper, or so as to endanger the life or limb of any person or the safety of any property.
The driver of a motor vehicle has not the right to a clear road but must anticipate the presence of persons and vehicles thereon, must at all times drive at such rate of speed as will enable him to avoid injury to persons and vehicles when they come, or should come, under his observation.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522.
The driver of a motor vehicle must keep his machine under control, and be on the alert for pedestrians, and other motor vehicles on the highway. He must drive at a rate of speed which will enable him to avoid injury to those who should come under his observation. Driving, at night, at such a rate of speed as not to permit the driver to avoid injuring persons coming within the range of his lights is negligence.
Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840.
A party to an action when called upon to answer for the consequences of his wrongful act done to another, cannot allege, or reply that the separate or distinct wrongful act of another, done, not to himself nor to his injury, and not necessarily connected with, or leading to, or causing or producing the wrongful act complained of.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
Himself guilty of a wrong, not dependent on nor caused by that charged to the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the state, and thus to impose upon him a penalty many times greater than what those laws prescribed. Neither justice nor sound morals require this, and it seems contrary to the dictates of both that such a defense should be allowed to prevail.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
All other conditions and circumstances remaining the same, the accident or injury would have happened on any other day as well. The same natural causes would have produced the same results on any other day, and the time of the accident or injury, as that it was Sunday, is wholly immaterial so far as the cause of it or the question of contributory negligence is concerned.
Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534.
A railroad company cannot defend for negligence for killing of an employee on the ground that he received injury while engaged in common labor on Sunday.
N. A. & C. R. Co. v. Buck, 116 Ind. 566, 9 Am. St. Rep. 883, 2 L.R.A. 520, 19 N.E. 453; I. C. R. R. Co. v. Dick, 91 Ky. 434, 15 S.E. 665.
A city cannot defend for negligence on the ground that the injured party was working on Sunday where a negligent act was proximate cause of the injury.
Kansas City v. Orr, 62 Kan. 61, 50 L.R.A. 783.
Owner of stock allowing them to run at large in violation of law, not debarred of right of recovery for injury done to them.
G. S. R. Co. v. McAlpine, 71 Ala. 545.
A violation of law is no bar to recovery for injuries sustained thru another's negligence, unless act of such character as would naturally tend to produce injuries.
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