118 Mass. 195 | Mass. | 1875
The provision of the Lord’s Day Act, which prohibits travelling, like that which forbids the doing of any business, labor or work, excepts what is done from “ necessity or charity. Gen. Sts. c. 84, §§ 1, 2. The exception has been often said by this court to cover everything which is morally fit and proper to be done upon that day under the particular circumstances of the case. Commonwealth v. Knox, 6 Mass. 76, 77. Flagg v. Millbury, 4 Cush. 243, 244. Bennett v. Brooks, 9 Allen, 118, 123. Commonwealth v. Sampson, 97 Mass. 407, 409. In the last case, Mr. Justice Hoar said that acts to prevent or relieve suffering of men or animals would unquestionably fall within the exception.
In considering what is lawful or fit to be done on the Lord’s day, “ charity ” must include everything which proceeds from a sense of moral duty, or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one’s own benefit or pleasure. That a visit to a sick child or other near relative upon the Lord’s day is within the exception is well settled. Pearce v. Atwood, 13 Mass. 324, 350, 351. Gorman v. Lowell, 117 Mass. 65. McClary v. Lowell, 44 Vt. 116. The same reason extends to the case of- a sick friend.
In the case at bar, there was evidence tending to show, and which would have warranted the jury in finding, that the plaintiff was travelling with his brother for the sole purpose of visiting a common friend, whom they knew to be sick, and thought might be in need of assistance, and of rendering such assistance as on inquiry they might find to be necessary. The absence of evidence of the grounds of their knowledge or belief is immaterial, except as a circumstance to be considered by the jury in determining whether the real purpose of their journey was as the rest of the evidence tended to show. Myers v. State, 1 Conn. 502. The jury having been instructed otherwise, the
Verdict must be set aside.