ening, traducing, quarrelling, challenging to fight or fighting, or whoever shall carry concealed weapons, or in a threatening manner display any pistol, knife, slung-shot, brass, steel or iron knuckles, or other deadly weapon, shall be fined not exceeding $100." ... Unquestionably defendant in error and plaintiff in error were both engaged in wilfully disturbing the peace and quiet of the family of Daniel Hirsch by loud and unusual noises. The enterprise, in which they were both engaged at the time of the injury, was an unlawful one. The fact, that it is called a "charivari," does not make it any the less unlawful. ... What results from the fact, that defendant in error and plaintiff in error were both engaged in such an unlawful and criminal enterprise, as is above described? In Harris v. Harfield, 71 Ill. 298, a suit was brought to recover damages on account of disease, communicated to the cattle of plaintiff by Texas cattle brought into this State by defendant in the month of July, in violation of a statute forbidding such act; it appeared that the plaintiff had put his cattle, among which were the Texas cattle, into his own pasture; that soon afterward the plaintiff discovered, that some of them were Texas cattle, and still kept possession and control of them, and bought some of them, and kept them with his other cattle; and it was there held that a court of justice will not assist a party, who has participated in a transaction forbidden by statute, to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. The principle is thus concisely stated in Heland v. City of Lowell, 3 Allen 407: "And it is the established law, that when a plaintiff's own unlawful act concurs in causing the damage that he complains of, he cannot recover compensation for such damage. . . . As long ago as the case of Holman v. Johnson, [supra, No. 694,] Lord MANSFIELD said: 'The principle of public policy is this: ex dolo malo, non oritur actio. No Court will lend its aid to a man, who founds his cause of action upon an immoral or illegal act.' . . . The injury, therefore, is as directly traceable to his own breach of the law as to the negligence of his associate; each has combined to produce it, and without both it could not have occurred. What the plaintiff must ask, therefore, must be this: that the law shall relieve him from the consequences of his disregard of the law; and this, as already stated, it will refuse to do." So, in the case at bar, the defendant in error traces his injury to the negligence of the plaintiff in error, but, in doing so, he necessarily shows that, at the time, both he and the plaintiff in error were engaged in the unlawful enterprise. . . . It follows that the firing of a pistol by the plaintiff in error was as much the act of the defendant in error as of any other person engaged in the enterprise. The fact, that the parties, assembled at the school house, were associated in the joint prosecution of the common design, gave to the collective body the attribute of individuality by their mutual agreement, and the act of each member in furtherance of the common object was the act of all concerned. Under this view, to allow defendant in error to recover this case would be to allow him to recover for an injury, which was, in the eye of the law, as much his own act as the act of the plaintiff in error. The judgments of the Appellate Court and of the Circuit Court of Piatt county are reversed, and the cause is remanded to the latter Court, with directions to proceed in accordance with the views herein expressed. Reversed and remanded. 704. DUDLEY v. NORTHAMPTON STREET RAILWAY COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1909 202 Mass. 443, 89 N. E. 25 TORT for personal injuries to the plaintiff and damages to his automobile resulting from a collision between it and an electric street-car of the defendant. Writ dated March 3, 1906. The case was tried before BROWN, J. The material facts are stated in the opinion. At the close of the evidence the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions. The case was argued at the bar in September, 1908, before KNOWLTON, C. J., MORTON, LORING, SHELDON, & RUGG, J.J., and afterwards was submitted on briefs to all the justices. J. B. O'Donnell, for the plaintiff. J. C. Hammond, (T. J. Hammond with him), for the defendant. SHELDON, J. It was provided by the statutes in force at the time of this accident that no person should operate an automobile or motor cycle upon any public highway or private way in this Commonwealth laid out under authority of statute unless he had been licensed to do so and unless his automobile or motor cycle had been registered as prescribed. Sts. 1903, c. 473; 1905, c. 311. . . . It followed that the plaintiff was acting unlawfully, in violation of the statutes referred to, at the time of the collision between his machine and the defendant's trolley-car; and it must be determined whether his violation of law is necessarily fatal to his right of action. The general rule was stated in Newcomb v. Boston Protective Department, 146 Mass. 596, that the plaintiff's unlawful act will prevent his recovering if it directly contributed to his injury. But there is a distinction between an unlawful act which is at least a contributing cause of the accident, and one which is merely an attendant circumstance or a condition, though perhaps a necessary condition, of that accident. And if we had before us simply the case of a plaintiff who was driving his vehicle on a public way in a manner forbidden by law or without appliances required by law, but who, while himself using all due care had been injured by an accident due solely to the negligence of a third person, his own violation of law not being a contribu torý cause of the accident but merely one of the conditions existing at the time, it could not be said that such a plaintiff was barred of recovery by the mere fact of his violation of the law. But that is not the case which is now presented. We are dealing here with a peculiar kind of vehicle which has only recently come into use, which requires unusual care in its management, and the presence of which upon the highway has been found to involve more than ordinary risks to other travellers. . . . Section 3 of the Act before us (St. 1903, c. 473) . . . expressly ordains that "except as otherwise provided herein, no automobile or motor cycle shall . . . be operated upon any public highway . . . unless registered as above provided." This provision, in addition to the penalties fixed for any operation of unregistered machines, forbids their being operated upon the highway at all. We cannot avoid the conclusion that it was intended to safeguard persons who were lawfully using the highways from the serious risks of injury by machines of this character which were operated in defiance of the law, and the owners of which furnish no means by which they could be identified and compelled to make proper compensation for the injuries which by their violation of law or by their mere negligence they might cause to other travellers. The Legislature, in the opinion of a majority of the Court, intended to outlaw unregistered machines, and to give them, as to persons lawfully using the highways, no other right than that of being exempt from reckless, wanton or wilful injury. They were to be no more travellers than is a runaway horse. Of course the defendant would have had no right to run its car into the plaintiff's machine wantonly or recklessly; and that is the point of such cases as Welch v. Wesson, 6 Gray 505, and McKeon v. New York, New Haven, & Hartford Railroad, 183 Mass. 271. But there was no evidence in the case at bar to warrant a finding for the plaintiff upon this ground. Accordingly, the verdict for the defendant was rightly ordered. . . . Exemptions overruled. 705. NORRIS v. LITCHFIELD. (1857, 35 N. H. 277, 278.) BELL, J. The idea of the defendant's counsel was, that if the plaintiff was himself a wrong-doer, he could maintain no action whatever, however prudent and careful he may have been. There are decisions which give countenance to this idea. . . But we are unable to agree to the doctrine thus broadly laid down. As a general principle it seems to us wholly immaterial, whether, in the abstract, the plaintiff was a wrong-doer or a trespasser, or was acting in violation of law. For his wrong or trespass he is answerable in damages, and he may be punishable for his violation of law; but his rights as to other persons and as to other transactions are not affected by that circumstance. . . It must be shown that such act is a fault which has directly contributed to the loss or damage of which the party complains. It is not a question, as it has been made in some cases, whether the party is a trespasser, or has done some wrongful act, but whether he is guilty of a fault or of negligence in reference to the matter in question, which has directly contributed to the injury. 706. MONROE v. HARTFORD ST. R. Co. (1903, 76 Conn. 201, 56 Atl. 498; action for damage caused by collision with the plaintiff's wagon while left unfastened in the street contrary to a city ordinance.) HAMERSLEY, J. There is some real and more apparent conflict of opinion in the many cases treating of the relation between an illegal act and a coincident injury. In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of redress for an injury suffered by himself, nor liable for an injury suffered by another, merely because he is a lawbreaker. In actions to recover for injuries not intentionally inflicted but resulting from a breach of duty which another owes to the party injured - commonly classed as actions for negligence - the fact that the plaintiff or defendant at the time of the injury was a lawbreaker may possibly be relevant as an incidental circumstance, but is otherwise immaterial unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered. . . . The cause of action which arises upon an injury resulting from a breach of duty in respect to the party injured in neglecting to use that care which the law requires under the particular circumstances of the case, for the protection of those liable to be injured by such neglect, is the same as the cause of action arising upon an injury resulting from a breach of duty in respect to the person injured in doing an act forbidden by statute for the protection of those liable to be injured through such act. The main distinction lies in the method of proof. In the former case, the breach of duty must be established by showing a want of due care under all the circumstances; in the latter case it may be established by proving the commission of the illegal act. In both cases two questions are presented. First, was there a breach of duty in respect to any person liable to be injured by the conduct proved? Second, was this breach of duty a proximate cause of the injury alleged? And the principles which determine the relation of the negligent conduct in the one case, or the illegal act in the other, to the resulting injury as a proximate cause, are the same. . . . Applying the principles which determine the causal relation between a negligent act and the following injury, to the admitted facts in the present case, it is apparent that the illegal act was not necessarily a mere independent concomitant or condition of the collision, but might well be a contributing cause, and might be, according as the jury should find the attendant or surrounding circumstances, a proximate cause of the injury.1 . . . 1 [NOTES: The plaintiff, riding in an automobile not registered as required by law, was injured by a defect in the defendant's highway. Is the defendant liable? (1908, Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677.) The plaintiff prepared and sold a laxative which it called "California Fig Syrup;" the defendant imitated the name and diverted some of the plaintiff's patronage. In fact, the plaintiff's preparation contained no fig syrup at all, but produced its laxative effect by the drug senna, commonly used by doctors. Is the defendant liable? (1895, California Fig Syrup Co. v. Stearns, 67 Fed. 1008; 1900, Warden Co. v. Cal. Fig Syrup Co., C. C. A., 102 Fed. 334; 179 U. S. 686, 21 Sup. 926; 187 U. S. 516, 23 Sup. 161.) The plaintiff was unlawfully driving cattle on Sunday. When passing over the defendant's bridge, the cattle were killed or injured by a defect in the bridge, which caused it to break down. Is the defendant liable? (1871, Sutton v. Wauwatosa, 29 Wis. 21.) The plaintiff, at Macon, Georgia, made shoes, and marked them "Old Colony Shoe Co., Rockland, Mass.," thereby desiring fraudulently to get the benefit of the repute of the Massachusetts shoes. The defendant, also in Georgia, imitated the same mark on his shoes, and thus diverted some of the plaintiff's patronage. Is the defendant liable? (1898, Coleman, B. & C. Co. v. Dannenberg, 103 Ga. 784, 30 S. E. 639.) The defendants' automobile collided with the plaintiffs', injuring the latter. The defendants, father and son, and one H., were riding in their car; H. had an operator's license; the son, who was operating at the time, had none; the father had none. Was the son liable irrespective of specific negligence? (1911, Bourne v. Whitman, Mass. 95 N. E. 404.) The plaintiff was riding in a buggy, and was injured in a collision with the defendant's street-car negligently managed. The buggy was owned and driven by C.; the plaintiff and W. were the other occupants; the ride was taken for C. to exhibit the horse with a view to the plaintiff's purchase; the horse was blind; the buggy had no light; and all three occupants were in liquor. Is the defendant liable? (1911, Flynn v. Chicago, — Ill., 95 N. E. 449.) The plaintiff's intestate was an engineer, killed by a collision of trains due to the fault of the defendant's employees. At the time, the intestate was engaged knowingly in the carriage of Confederate troops making war upon the United States, and was therefore committing treason. Is the defendant liable? (1868, Wallace v. Cannon, 38 Ga. 199.) The plaintiff's sleigh was injured by a collision with the defendant's sleigh, due to the latter's wilful running into the former. Both were engaged in an illegal race for a purse of money. Is the defendant liable? (1856, Welch v. Wesson, 16 Gray 505.) The plaintiff's wagon was backed crosswise to the street at the curb, contrary to a city ordinance forbidding any wagon having a load of less than five hundred pounds to be so placed. The defendant's team, in passing negligently, injured the plaintiff's horse. The defendant's team had space to pass if care had been used. Is the defendant liable? (1870, Steele v. Burkhardt, 104 Mass. 59; 1888, Newcomb v. Boston Protective Department, 146 Mass. 596.) The plaintiff while unlawfully driving on Sunday in the highway was injured by the overturning of the buggy, due to the plaintiff's horse being frightened by the defendant's dog. Is the defendant liable? (1880, White v. Lang, 128 Mass. 598.) The plaintiff was unlawfully working on Sunday to repair the wheel-pit of the defendant's mill, and was injured by the negligent starting of the machinery. Is the defendant liable? (1872, McGrath v. Merwin, 112 Mass. 467.) ESSAYS: Harold S. Davis, "The Plaintiff's Illegal Act as a Defence in Actions of Tort." (H. L. R., XVIII, 505.) NOTES: "Negligence violation of statute as a bar to recovery." (10 C. L. R. 367.) "Plaintiff's illegal act as contributing cause." (H. L. R., XII, 144, 286; XIV, 295; XV, 79.) "Assumption of risk by voluntary spectator at unlawful exhibition." (H. L. R., XX, 156.) |