125 U.S.

555
8 S.Ct. 974
31 L.Ed. 795

BUCHER
v.
CHESHIRE R. CO. et al.
March 19, 1888.

[Statement of Case from pages 556-566 intentionally omitted]

A. A. Ranney, for plaintiff in error.
[Argument of Counsel from pages 566-576 intentionally omitted]
Chas. A. Welch, for defendants in error.
MILLER, J.

This is a writ of error to the circuit court of the United States for the district of
Massachusetts. The plaintiff in error was plaintiff in that court, and sought to
recover of the defendants for injuries which he sustained by reason of their
negligence while traveling upon their roads. The court on the trial substantially
instructed the jury that the plaintiff could not recover because the injury
complained of occurred while he was traveling upon the Sabbath day, in
violation of the law of the state of Massachusetts. A suit between the same
parties in regard to the same transaction had been brought in the supreme court
of that state, in which, on a trial before a jury, the plaintiff obtained a verdict.
This was carried to the court in bank, and was there reversed and sent back for a
new trial. The plaintiff then became nonsuit in the state court and brought the
present action in the circuit court of the United States.

It is important to inquire what was at issue upon the trial in the state court.
There the defendant set up the law of the state found in Gen. St. c. 84, 2,
which is as follows: 'Whoever travels on the Lord's day, except for necessity or
charity, shall be punished by a fine not exceeding ten dollars;' and insisted that
the plaintiff, being in the act of violating that law at the time the injury
occurred, could not recover. On the 15th of May, 1877, after the plaintiff was

injured, the legislature of Massachusetts passed a statute declaring that this

prohibition against traveling on the Lord's day should not constitute a defense
to an action against a common carrier of passengers for any tort or injury
suffered by the person so traveling. St. Mass. 1877, c. 232. The supreme court
of that state had decided previous to this, in Stanton v. Railroad Co., 14 Allen,
485, a similar case, that the plaintiff, being engaged in a violation of law,
without which he would not have received the injury sued for, could not obtain
redress in a court of justice. Also, in Bosworth v. Swansey, 10 Metc. 363, and in
Jones v. Andover, 10 Allen, 18. In the trial of the case now under consideration,
before the jury in the state court, the plaintiff does not seem to have
controverted the general doctrine thus declared, but insisted that the present
case did not come within the statute, becauseFirst, the act of May 15, 1877,
had declared that traveling on Sunday should no longer be a defense to actions
for injuries suffered by reason of the negligence of carriers of passengers,
although this statute was passed after the accident occurred upon which the
right of action was founded; and second, that at the time he was injured he was,
within the meaning of the statute, traveling upon an errand of charity or
necessity, specially excepted from its provisions. The court below sustained
both of these propositions of the plaintiff, and the court in bank reversed the
trial court upon both of them. It held that the act of May 15, 1877, did not
govern a case where the injury had occurred before its passage; that it was not
retroactive; and also held that the facts set out in the bill of exceptions did not
show that the plaintiff was traveling at the time of the accident either from
necessity or for charity. It may be as well to state here that the facts found in
the bill of exceptions relating to this latter question, as it was presented before
the supreme court of Massachusetts, were identical with those appearing in the
bill of exceptions of the case now before us, being in both cases the plaintiff's
own statement of his reasons for traveling on that day.
3

Upon the trial in the circuit court of the United States the judge was requested
by the plaintiff to charge the jury that the circumstances detailed in the
testimony of plaintiff and found in the bill of exceptions concerning the illness
of his sister in Minnesota, of which he had received knowledge by letter, and
had replied that he would meet her in Chicago at a certain time, and that, having
been delayed by accidental circumstances, the travel on Sunday, when he was
injured, became necessary to enable him to fulfill that promise, were sufficient
to be submitted to the jury in order that they might pass upon the question of
whether or not this act of traveling on the Lord's day was a work of necessity or
charity. This the court declined to do, saying that the same question having
been submitted to the jury in the trial in the state court, and having been passed
upon by the supreme court of the state, he did not consider that there was
evidence sufficient to go to the jury upon that subject. This is one of the

assignments of error now before us, and upon this point we are of opinion that
the court below ruled correctly. It is not a matter of estoppel which bound the
parties in the court below, because there was no judgment entered in the case in
which the ruling of the state court was made, and we do not place the
correctness of the determination of the circuit court in refusing to permit this
question to go to the jury upon the ground that it was a point decided between
the parties, and therefore res judicata as between them and the present action,
but upon the ground that the supreme court of the state in its decision had given
such a construction to the meaning of the words 'charity' and 'necessity' in the
statute as to clearly show that the evidence offered upon that subject was not
sufficient to prove that the plaintiff was traveling for either of those purposes.
The court in its opinion, which is reported in Bucher v. Railroad co., 131 Mass.
156, said: 'The act of plaintiff in thus traveling on the Lord's day was not an act
of necessity within the meaning of the statute. * * * In order to constitute an act
of charity, such as is exempted from the Lord's day act, the act which is done
must be itself a charitable act. The act of ascertaining whether a charity is
needful is not the charity; but, so far as the statute is concerned, the only
question in that case would be, is this act a necessary act? That involves the
question, whether the act is one which it is necessary to do on the Lord's day;
and no previous neglect to obtain the requisite information on a previous day
creates a necessity for obtaining it on the Lord's day.' After citing other cases
which had been decided in that court, it was further said: 'It is apparent that the
plaintiff's duty to his sister was made subservient to his secular business. We
are, therefore, of opinion that the ruling should have been given that there was
no evidence which would justify the jury in finding that the plaintiff was
traveling from necessity or charity within the meaning of the statute.' Taking,
therefore, this construction of the language of the statute, as well as prior
decisions to the same purport in which we think we are bound to follow the
supreme court of the state, we agree that the record in this case as in that does
not furnish evidence which should have gone to the jury upon that branch of the
subject.
4

The other assignment of error, in regard to the effect of traveling on the Lord's
day in violation of the statute of Massachusetts, submitted as a defense to what
would otherwise be a liability of the railroad for the negligence of its servants,
presents the matter in a somewhat different aspect. It is not easy to see that
there was anything n the case as it arose in the circuit court which required a
construction of the meaning of that statute, after eliminating what has just been
suggested as to the signification of the words 'necessity' or 'charity.' The
remainder is a short prohibition against traveling upon the Lord's day, and
provides for the imposition of a penalty for so doing. This is very plain; it
admits of no doubt as to its meaning, and its validity has never been

controverted. When, therefore, the supreme court of Massachusetts, in a long

line of decisions, has held that the violation of this statute may be set up as a
defense to a liability growing out of the negligence of a railroad company in
carrying passengers upon its road, it must have been on some other ground than
that to be found in the expressions used in the statute itself. There is no such
provision in it, and there is no necessary inference to be drawn from its
language that it was intended to control the relations between the passenger and
the carrier, or to modify the obligations of the one to the other. The language of
the court in Stanton v. Railroad Co., already cited, is that 'because the plaintiff
was engaged in the violation of law, without which he would not have received
the injury sued for, he cannot obtain redress in a court of justice.' This principle
would seem to be as applicable to a man engaged in any other transaction
forbidden by law as to that of violating the Sabbath. Whether the doctrine thus
laid down is a sound one, and whether, if it be not sound as it commends itself
to our judgment, we should follow it as being supported by the decisions of the
supreme court of Massachusetts in numerous instances, presents in this case the
only serious question for our consideration. Hamilton v. City of Boston, 14
Allen, 475; Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen,
18; Day v. Railway Co., 135 Mass. 113; Read v. Railroad Co., 140 Mass. 199,
4 N. E. Rep. 227. If the proposition, as established by the repeated decisions of
the highest court of that state, were one which we ourselves believed to be a
sound one, there would be no difficulty in agreeing with that court, and,
consequently, affirming the ruling of the circuit judge in the present case. But
without entering into the argument of that subject, we are bound to say that we
do not feel satisfied, that upon any general principles of law by which the courts
that have adopted the common-law system are governed, that this is a true
exposition of that law. On the contrary, in the case of Railroad Co. v. Tow-Boat
Co., 23 How. 209, this court had under consideration the same question. It
arose in regard to the effect of a statute of Maryland forbidding persons 'to
work or do any bodily labor, or willingly suffer any of their servants to do any
manner of labor on the Lord's day, works of charity or necessity excepted,' and
prescribing a penalty for a breach thereof. It was held by this court that where a
vessel was prosecuting her voyage on Sunday, and was injured by piles
negligently left in the river, this statute making traveling on Sunday an offense
and punishing it by a penalty, constituted no defense to an action for damages
by the vessel. A number of cases were cited sustaining that view of the subject,
and the court, through Mr. Justice GRIER, used this language: 'We do not feel
justified, therefore, on any principles of justice, equity, or of public policy, in
inflicting an additional penalty of seven thousand dollars on the libelants, by
way of set-off, because their servants may have been subject to a penalty of
twenty shillings each for the breach of the statute.' It that case, however, there
had been no decision of the courts of Maryland holding that a violation of the
Sabbath would constitute a defense to the action against the company which

had left the piles in the river. In this view of the matter it is not unworthy of
consideration that, shortly after the injury in the present case was inflicted, the
general court of Massachusetts passed a statute, to which we have already
referred, declaring that traveling on the Lord's day should not 'constitute a
defense to an action against a common carrier of passengers for any tort or
injury suffered by a person so traveling.'
5

The question then arises, how far is this court bound to follow the decisions of
the Massachusetts supreme court on that subject? The congress of the United
States, in the act by which the federal courts were organized, enacted that 'the
laws of the several states, except where the constitution, treaties or statutes of
the United States otherwise require or provide, shall be regarded as rules of
decision in trials at common law, in the courts of the United States, in cases
where they apply.' Rev. St. 721; Judiciary Act, 34, 1 U.S.St. at Large, 92.
This statute has been often the subject of construction in this court, and its
opinions have not always been expressed in language that is entirely
harmonious. What are the laws of the several states which are to be regarded 'as
rules of decision in trials at common law,' is a subject which has not been
ascertained and defined with that uniformity and precision desirable in a matter
of such great importance. The language of the statute limits its application to
cases of trials at common law. There is, therefore, nothing in the section which
requires it to be applied to proceedings in equity, or in admiralty; nor is it
applicable to criminal offenses against the United States, (see U. S. v. Reid, 12
How. 361,) or where the constitution, treaties, or statutes of the United States
require other rules of decision. But with these, and some other exceptions which
will be referred to presently, it must be admitted that it does provide that the
laws of the several states shall be received in the courts of the United States, in
cases where they apply, as the rules of decision in trials at common law. It has
been held by this court that the decisions of the highest court of the state in
regard to the validity or meaning of the constitution of that state, or its statutes,
are to be considered as the law of that state, within the requirement of this
section. In Leffingwell v. Warren, 2 Black, 599, this court said, in regard to the
statutes of limitations of a state: 'The construction given to a statute of a state by
the highest tribunal of such state is regarded as a part of the statute, and is as
binding upon the courts of the United States as the text.' In the case of Luther v.
Borden, 7 How. 40, Chief Justice TANEY said: 'The point then raised here has
been already decided by the courts of Rhode Island. The question relates
altogether to the constitution and laws of that state; and the well-settled rule in
this court is, that the courts of the United States adopt and follow the decisions
of the state courts in questions which concern merely the constitution and laws
of the state.' See, also, Post v. Supervisors, 105 U. S. 667. It is also well settled
that where a course of decisions, whether founded upon statutes or not, have

become rules of property as laid down by the highest courts of the state, by
which is meant those rules governing the descent, transfer, or sale of property,
and the rules which affect the title and possession thereto, they are to be treated
as laws of that state by the federal courts. The principle also applies to the rules
of evidence. In Ex parte Fisk, 113 U. S. 720, 5 Sup. Ct. Rep. 724, the court
said: 'It has been often decided in this court that in actions at law in the courts
of the United States the rules of evidence and the law of evidence generally of
the state prevail in those courts.' See, also, Wilcox v. Hunt, 13 Pet. 378; Ryan v.
Bindley, 1 Wall. 66. There are undoubtedly exceptions to the principle that the
decisions of the state courts, as to what are the laws of that state, are in all cases
binding upon the federal courts. The case of Swit v. Tyson, 16 Pet. 1, which has
been often followed, established the principle that if this court took a different
view of what the law was in certain classes of cases which ought to be governed
by the general principles of commercial law, from the state court, it was not
bound to follow the latter. There is, therefore, a large field of jurisprudence left
in which the question of how far the decisions of state courts constitute the law
of those states is an embarrassing one. There is no common law of the United
States, and yet the main body of the rights of the people of this country rest
upon and are governed by principles derived from the common law of England,
and established as the laws of the different states. Each state of the Union may
have its local usages, customs, and common law. Wheaton v Peters, 8 Pet. 591;
Pennsylvania v. Bridge Co., 13 How. 518. When, therefore, in an ordinary trial
in an action at law we speak of the common law we refer to the law of the state
as it has been adopted by statute or recognized by the courts as the foundation
of legal rights. It is in regard to decisions made by the state courts in reference
to this law, and defining what is the law of the state as modified by the opinions
of its own courts, by the statutes of the state, and the customs and habits of the
people, that the trouble arises. It may be said generally that wherever the
decisions of the state courts relate to some law of a local character, which may
have become established by those courts, or has always been a part of the law
of the state, that the decisions upon the subject are usually conclusive, and
always entitled to the highest respect of the federal courts. The whole of this
subject has recently been very ably reviewed in the case of Burgess v.
Seligman, 107 U. S. 20, 2 Sup. Ct. Rep. 10. Where such local law or custom
has been established by repeated decisions of the highest courts of a state it
becomes also the law governing the courts of the United States sitting in that
state.
6

We are of opinion that the adjudications of the supreme court of Massachusetts,

holding that a person engaged in travel on the Sabbath day, contrary to the
statute of the state, being thus in the act of violating a criminal law of the state,
shall not recover against a corporation upon whose road he travels for the

negligence of its servants, thereby establish this principle as a local law of that
state, declaring, as they do, the effect of its statute in its operation upon the
obligation of the carrier of passengers. The decisions on this subject by the
Massachusetts court are numerous enough and of sufficiently long standing to
establish the rule, so far as they can establish it, and we think that, taken in
connection with the relation which they bear to the statute itself, though giving
an effect* to it which may not meet the approval of this court, they nevertheless
determine the law of Massachusetts on that subject.
7

FIELD and HARLAN, JJ., dissented.