136 Ga. 511 | Ga. | 1911
The Court of Appeals has certified to us the following question of law: “Can a servant who was injured by the negligent conduct of an incompetent fellow-servant, the incompe'tency being unknown to him, recover damages from a common master, arising from his breach of duty in knowingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged together in the violation of a penal statute of this State, viz., in pursuit of their business and work of ordinary calling on the Sabbath day? Penal Code, § 422.”
One injured through the negligence of another ordinarily has
But it is contended that where both plaintiff and defendant are engaged in violating a penal statute when the former is negligently injured by the latter, the rule should be different from that applied to eases where the plaintiff alone was committing an illegal act at the time • of his injury. In support of this contention the eases of Wallace v. Cannon, 38 Ga. 199 (95 Am. D. 385), Martin v. Wallace, 40 Ga. 52, and Redd v. Muscogee Railroad Company, 48 Ga. 102, are cited. These decisions rule that when two or .more parties are engaged in the same illegal transaction, in violation of the supreme law of the land, and one of them is injured by the carelessness or negligence of the other, the court will not lend its assistance in favor of either party to recover damages. Is this ruling decisive of the question of law submitted; and, if so, are these cases so wrong in principle that they should be reviewed and modified, a request to review these eases having been made? Each of these cases arose during the late war between the States, and the alleged illegality consisted in the transportation of troops in aid of the Confederate government and in opposition to the government of the United States. In .the Cannon case, Cannon was the engineer of a train which carried Confederate soldiers and munitions of war in addition to passengers, and was killed in collision with another train of the defendant on its return trip after having transported Confederate soldiers to their destination. In none of the eases did the court discuss or recognize the principle that the plaintiff would be cut off from a recovery because of his own illegal conduct, unless its illegality contributed to the injury. Should the ruling be modified to this extent ? At the outset we venture to say that no rational differentiation can be made between cases in which it is held that the plaintiff may recover for a tort inflicted while, he alone was violating the Sunday law, and cases where both he and the tort-feasor were simultaneously violating the Sunday statute, where in either instance the violation of the statute did not contribute to the injury. If a carpenter undertakes to repair his house on Sunday and negligently lets fall a piece of timber which injures his neighbor, a gardener, while working in his garden, can it be said that the gardener shall go without re
Again, the argument is advanced, that the rule that a person violating the Sunday law is not precluded from recovering damages for injuries received from the negligence of another is not applicable where the parties sustain the relation of master and servant, for the reason that it is a necessary part of the injured servant’s case to prove the contract, and a contract to labor on the Sabbath is void; that without the contract no legal duty of the
We therefore think that the ruling in the cases of Wallace v. Cannon, Martin v. Wallace, and Redd v. Muscogee R. Co., supra, that where two or more persons are engaged in the same transaction which is in violation of a penal statute, and one of them is injured by the carelessness or negligence of the other, the injured person is without remedy, should be modified with the qualification that, to prevent a recovery, the violation of the penal statute must be a contributing cause of the injury..