Cleveland v. Bangor. pernicious, will sanction no inutility or absurdity. Now, what can be more absurd than to authorize the pendency and proceeding of twenty separate actions against persons concerned in a joint trespass, and, after the accumulation of vast expense, to hold that the first judgment bars the other suit. See also Ayer v. Ashmead, 31 Conn. 447; Osterhout v. Roberts, 8 Cowen, 43; Elliott v. Hayden, 104 Mass. 180; Knight v. Nelson, 117 Mass. 458; Savage v. Stevens, 128 Mass. 254; Sanderson v. Caldwell, 2 Aik. (Vt.) 195; Elliott v. Porter, 5 Dana, 299 (30 Am. Dec. 688); Society v. Underwood, 11 Bush. 265; Wyman v. Bowman, 71 Me. 123; (21 Am. Rep. 214); Bigelow, Estoppel, 57, 128; Cooley, Torts (2nd ed.), 158. In Freeman, Judgments, sec. 236, the author says: "A few cases decide that the mere issuing of an execution is a conclusive election to consider the defendant as exclusively responsible. But a majority of the American cases discountenance this mani fest absurdity. How vain and delusive that law must be which declares the right of an injured party to proceed severally against every person concerned in committing an injury; which sustains him until the liability of every wrongdoer is severally determined, and evidenced by a final judgment; and which, after thus holding the word of promise to his ear, breaks it to his hope' by forbidding him to attempt the execution of either judgment, upon penalty of releasing all the others." White v. Philbrick, 5 Maine, 147, is one of the "few cases" that may be cited in support of the doctrine thus characterized by Mr. Freeman as a‘manifest absurdity." It appears to have been decided on the authority of the early case of Brown v. Wooton, Yelverton, 67, and a qualified dictum in Livingstone v. Bishop, 1 Johns. 290; but it stands upon indefensible ground. As stated by the court in Murray v. Lovejoy, 2 Clifford, 191, "it does not seem to rest upon any substantial basis, and should no longer be followed. In the later case of Hopkins v. Hersey, Cleveland v. Bangor. 20 Me. 449, it is held that a collateral concurrent remedy against one not a joint trespasser is not barred by anything short of actual satisfaction, and the case of White v. Philbrick, supra, is distinguished as a "decision limited to co-trespassers. 27 This technical refinement was obviously suggested to prevent a conflict, and avoid the necessity of overruling White v. Philbrick. But, with regard to the point under consideration, no sound reason has been given, and it is believed that none can be assigned, for such a distinction between the case of wrongdoers who are jointly and severally liable and of those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, and full satisfaction from one will operate as a discharge of the others. In neither case will anything short of satisfaction from one bar a suit against another. A master, for instance, is liable for the tort of his servant, and a satisfaction from one will discharge both, but they cannot be sued and declared against jointly. So in Brown v. Cambridge, 3 Allen, 474, the plaintiff brought suit against the water company for an injury sustained on account of a trench left in the highway, and, by way of compromise, accepted a small sum in " payment and satisfaction" of all damages in that suit. It was held that he was thereby precluded from maintaining a subsequent action against the city for the same injury. Conversely, in Bennett v. Fifield, 13 R. I. 139 (43 Am. Rep. 17) it was held that judgment, with execution, against an individual for leaving in the highway an object calculated to frighten horses, was no bar to a subsequent suit against the town for permitting it to remain, although the defendant in the former suit had been committed to jail on the execution, and the claim subsequently proved against his estate in bankruptcy. But as Rhode Island was one of the three States in which the error of Brown v. Wooton, supra, had been followed (see Hunt v. Bates, 7 R. I. 217, S. C. 82 Cleveland v. Bangor. Am. Dec. 592), the court limited the latter case to joint wrongdoers, and distinguished it from Bennett v. Fifield, supra, on the ground that the individual and the town in the latter case could not be regarded as joint tort-feasors. "They were not jointly, but collaterally, liable for the same injury," said the court, "by reason of distinct, though related, torts, and therefore the injured parties, until indemnified, are entitled to look to either of them remaining undischarged for their damages. 1 In the case at bar, the liability of the street railway for negligence respecting the location of its posts existed at common law, while the liability of the city for permitting the obstruction to remain is created by general statute. (R. S. c. 18, sec. 80.) And although the liability of both is reaffirmed in sec. 8, c.1378, of the Laws of 1885, for obvious reasons, they cannot be deemed joint tort-feasors with respect to the mode of redress. But it is immaterial. Concurrent remedies exist against them severally for the same cause. The plaintiff is entitled to indemnity for the injury, but only one indemnity. Satisfaction from the railway company would have been a bar to this suit; but judgment and execution against the company, without satisfaction, cannot be a bar. Having a judgment against each, she will be entitled to choose the larger sum and the solvent party. II. The motion. In the report of the plaintiff's case against the street railway (86 Me. 232), the court say, respecting the motion for a new trial: "A careful examination of the evidence reported satisfies us that it was sufficient to authorize the verdict." A careful review of the evidence reported in this case against the city leads us to the same conclusion. True, the ground of liability is essentially different. In the action against the railway, the defendant would not have been exempt from liability for the consequences of its own negligence if some other cause, for which the Cleveland v. Bangor. plaintiff was not responsible, had contributed to the accident. Lake v. Milliken, 62 Maine, 240. But in this action against the city, it must appear that the defect in the street was the sole cause of the injury. If any other cause, for which the plaintiff was responsible, or any other independent cause, for which neither the plaintiff nor the city was responsible, proximately contributed to the injury, she cannot recover. But unlawful traveling on Sunday would bar recovery in either case, and the defendant contends that the verdict was not authorized by the evidence on this point. We are unable to concur in this view. It involves an interpretation of the statute at variance with its true spirit and purpose. It is not ev ery act of walking or riding on Sunday that constitutes "traveling" within the meaning of R. S. c. 124, sec. 20. It is only unnecessary traveling which is prohibited. Works of necessity and charity are expressly excepted from the prohibition; and "a moral fitness or propriety of traveling under the circumstances of any particular case may be deemed necessary within this section." PARSONS, C. J., in Com. v. Knox, 6 Mass. 76; Sullivan v. M. C. R. R., 82 Maine, 196. The primary object of such legislation has been to secure to private citizens the quiet enjoyment of Sunday as a day of rest, and to encourage the observance of moral duties on that day, but not to authorize any arbitrary or vexatious interference with the private habits and comfort of individuals. Hamilton v. Boston, 14 Allen, 475. In accordance with these views was the decision of the court in McClary v. Lowell, 44 Vt. 117, holding that it was not unlawful for a father to ride eight miles on Sunday to visit his minor sons, and attend to their welfare, in another town. And it has been repeatedly held in this State and Massachusetts that walking or riding in the open air, in a quiet and civil manner, with no object of business or pleasure, except the enjoyment of the VOL. V-23. Cleveland v. Bangor. air and gentle exercise, and the consequent promotion of the health, is not in violation of the Sunday law. O'Connell v. Lewiston, 65 Maine, 34; Davidson v. Portland, 69 Maine, 116; Sullivan v. M. C. R. R., 82 Maine, 196, supra; Barker v. Worcester, 139 Mass. 74. In the case at bar, the plaintiff was in feeble health, and, being unable to walk with comfort, had accepted her husband's invitation to ride into the country for the enjoy ment of the open air and the benefit of her health. The fact that the companionship of her husband and friends may have enhanced the pleasure of the drive did not render it unlawful. The jury found in favor of the plaintiff, under proper instructions, and we see no justification for disturbing the verdict on this ground. But the defendant finally contends that the uncontrol lable conduct of the horse, and not the obstruction in the street, was the proximate cause, or one of the proximate causes, of the accident. The law of causal connection in this class of cases has been maturely considered and critically analyzed in the recent decisions of this court. Spaulding v. Winslow, 74 Maine, 528; Aldrich v. Gorham, 77 Maine, 287; Perkins v. Fayette, 68 Maine, 152; Moulton v. Sanford, 51 Maine, 127. These authorities all agree that the contributory fault which will bar a recovery against a town for a defective highway must be one of the efficient and proximate causes of the accident, and not a mere condition or occasion of it. But it has been found impracticable to prescribe by abstract definition applicable to all possible states of facts, what is a proximate and what a remote cause; what is a true and efficient cause of a given result, and what is a mere occasion or opportunity" for the operation of the true cause. "Everything which induces or influences an accident does not necessarily and legally cause it. It might be the agency, or medium, or opportunity, or occasion, or situation, or condition, as it is variously styled, 66 66 |