[7] The allegations to the effect that the plant entered into the illegal arrangements in good faith and in full belief that they were lawful, and upon advice of counsel, are without avail. The plaintiff became a party to the illegal aspects of this business voluntarily, with a full knowledge of all the material facts, and did not act in consequence of mistake, fraud or accident. No new facts were subsequently disclosed. It was said in Harriman v. Northern Securities Co., 197 U. S. 244, 298, 25 Sup. Ct. 493, 505 (49 L. Ed. 739) with reference to a like situation:

tribute profits to him, because of a pretend- the plaintiff, as stockholder or otherwise, is ed cancellation of his shares of stock, and in e degree impaired. that acting under the feigned authority of contracts "A" and "B" a forfeiture of his shares of stock has been made. These acts are averred to be illegal because the contracts are illegal and also because their terms have not been complied with. But, although characterized as pretended, illegal and the result of unlawful conspiracy, the allegations of forfeiture and cancellation are definite and positive. One of the prayers, expressed in one bill and necessarily implied in the other, is that the defendants shall recognize the plaintiff as a stockholder and accord to him the rights of a stockholder as to dividends and otherwise. Thus the plaintiff is compelled by the exigencies of his situation to invoke the active interference of a court of equity to extricate himself from the alleged unlawful acts of the defendants, performed in pretended reliance upon the illegal contracts repudiated by him, in forfeiting and cancelling his shares of

stock.

"We regard the contention that complainants are exempt from the doctrine in pari delicto because the parties acted in good faith and without intention to violate the law as without merit. With knowledge of the facts and of the statute, the parties turned out to be mistaken in supposing that the statute would not be held applicable to the facts. Neither can plead ignorance of the law as against the other."

See, also, Com. v. Mixer, 207 Mass. 141, 93 N. E. 249, 31 L. R. A. (N. S.) 467, 20 Ann. Cas. 1152; United States v. Anthony, 11 The first element of his case to be estab-Blatchf. 200, Fed. Cas. No. 14,459; State v. lished is that he is a stockholder. That lies Goodenow, 65 Me. 30.

doing business, and to do equity in that respect, are of no consequence in view of the other allegations. Penitence after participation in the execution of illegal elements of the transaction affords no ground for relief. Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368. The grounds which have been stated and upon which this opinion rests are applicable equally to each suit. They appear to us to be decisive against the right of plaintiff to maintain either suit.

at the threshold. If he cannot prove that, [8] The offer to return the dividends alhe has no standing. But in order to estab-ready received from the illegal methods of lish that essential fact, the acts of the directors and the Stamp Company in pretending to forfeit and cancel his stock must be declared void. That is an executed part of the illegal contract. The description in the pleadings of these acts as illegal and as done pursuant to the unlawful contracts and to a conspiracy, does not abridge the difficulty. If the cancellation and forfeiture has been in simulated conformity to the illegal contracts and thus apparently a corporate act, that unlawful conduct is one of the complaints of the plaintiff against which relief must be had, and in respect of which the court must aid the plaintiff. But that is one part of the whole illegal scheme and must be so declared. It would be granting relief against an executed part of the contract to grant this prayer of the plaintiff. It appears to be essential to do this as a preliminary to affording any relief. Otherwise the plaintiff shows no private right. It seems to us to make no difference that these actions of the defendants took place after his repudiation of the contracts. Upon the allegations of the bill these acts are pretended to be in conformity to the authority conferred by the illegal contracts. The contracts by their terms are entire and not severable. They are executed in a particular as to which relief must be granted as a necessary prerequisite to the general grounds alleged by the plaintiff. They occurred before any of his bills were filed. This circumstance in connection with all the other allegations appears to us to preclude the plaintiff from obtaining any relief.

[9] The plaintiff contends that several federal questions are raised upon the present records, and that his rights under the federal Constitution have been disregarded by the conclusion we have reached. He alleges and contends that his right as a stockholder in the Stamp Company is a contract entitled to protection under section 10 of article 1 of the United States Constitution. That allegation and contention, however sound they may be in the abstract (Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604), are not relevant to any issue presented on these records. Νο statute of the commonwealth is relied on or referred to as "impairing the obligation" of the plaintiff's contractual right arising from his status as a stockholder in the Stamp Company. It was said in Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 638, 32 Sup. Ct. 577, 580 (56 L. Ed. 924) respecting the force and effect of section 10 of article 1 of the federal Constitution:

"This clause, as its terms disclose, is not directed against all impairment of contract obligations, but only against such as results from a subsequent exertion of the legislative power of the state. It does not reach mere errors committed by a state court when passing upon In reaching this conclusion no contract of the validity or effect of a contract under the

laws in existence when it was made. And so, the state court upon all the issues raised in while such errors may operate to impair the a proceeding, and a decision has been renderobligation of the contract, they do not give rise ed upon principles of general law, in reaching to a federal question. But when the state court, either expressly or by necessary impli- which the Constitution, laws, treaties or concation, gives effect to a subsequent law of the trolling rules of the United States are not state whereby the obligation of the contract is necessarily involved, then no federal question alleged to be impaired, a federal question is presented. In such a case it becomes our duty is raised. It was said by Mr. Justice Gray to take jurisdiction and to determine the exist- in Central Land Company v. Laidley, 159 ence and validity of the contract, what obliga- U. S. 103, 112, 16 Sup. Ct. 80, 83 (40 L. Ed. tions arose from it, and whether they are im-91): paired by the subsequent law. But if there be no such law, or if no effect be given to it by the state court, we cannot take jurisdiction, no matter how earnestly it may be insisted that that court erred in its conclusion respecting the validity or effect of the contract; and this is true even where it is asserted, as it is here, that the judgment is not in accord with prior decisions on the faith of which the rights in ques-U. S. 9, 26 [5 Sup. Ct. 441, 28 L. Ed. 889]; tion were acquired."

Manifestly no federal question arises in this particular. Moore-Manfield Construction Co. v. Electrical Installation Co., 234 U. S. 619, 624, 625, 34 Sup. Ct. 941, 58 L. Ed. 1503. The plaintiff further alleges and strenuously contends that his property is taken from him without "due process of law" and that he is denied “equal protection of the laws" in contravention of the guarantees of the Fourteenth Amendment to the Constitution of the United States.

[10, 11] On the allegations of the bills in the suits at bar the plaintiff was one of the incorporators of the Stamp Company. The purpose for which it was organized was the conduct of a lawful business. The plaintiff's right as a shareholder was property. It was entitled to all the protection afforded to property by the state and federal Constitutions. It may not be doubted that the protection afforded by that amendment is available in appropriate instances against decisions by the state courts. Its prohibitions are directed to all instrumentalities of government within the several states, including judicial, executive and legislative. The law as administered, interpreted and enforced by the state courts may deprive one of his property without due process of law, or deny to one the equal protection of the laws as well as a statute enacted by the Legislature. If the state courts deny due process of law or equal protection of the laws to any one who seasonably raises the question, they are amenable to the corrective power of the Supreme Court of the United States. Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896; Chicago, Burlington & Quincy R. R. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979; Muhlker v. Harlem R. R., 197 U. S. 544, 25 Sup. Ct. 522, 49 L. Ed. 872; Myles Salt Co. v. Iberia Drainage District, 239 U. S. 478, 484, 36 Sup. Ct. 204, 60 L. Ed. 392; Saunders v. Shaw, 244 U. S. 317, 320, 37 Sup. Ct. 638, 61 L. Ed. 1163. That principle we recognize and accept in all its amplitude.

But it appears to us that that principle has no pertinency to the questions raised on this record. It is settled that when a party has been given a full opportunity to be heard in

"When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not deprive the unsuccessful party of his property without due process of law, within the Fourteenth Amendment of the Constitution of the 90 [23 L. Ed. 678]; Head v. Amoskeag Co., 113 United States. Walker v. Sauvinet, 92 U. S.

Morley v. Lake Shore R. R., 146 U. S. 162, 171
[13 Sup. Ct. 54, 36 L. Ed. 925]; Bergmann v.
Backer, 157 U. S. 655 [15 Sup. Ct. 727, 39 L.
Ed. 845]."

When a case is presented in the state court for decision upon principles of general law alone, according to which in the ordinary course of the administration of justice rights of parties are determined and issues respecting the life, liberty and property of litigants are adjudicated, then no federal question is involved. New York Life Ins. Co. v. Hendren, 92 U. S. 286, 23 L. Ed. 709; Delmas v. Merchants Ins. Co., 14 Wall. 661, 666, 20 L. Ed. 757; Delmar Jockey Club v. Missouri, 210 U. S. 324, 335, 28 Sup. Ct. 732, 52 L. Ed. 1080. Where a party seeks in the state court and is there "given opportunity to litigate the rights claimed by" him, he cannot "complain that the guaranties of the Constitution of the United States were denied because the litigation did not result successfully." Remington Paper Co. v. Watson, 173 U. S. 443, 451, 19 Sup. Ct. 456, 459 (43 L. Ed. 762). It is possible that these broad statements may be subject to one limitation, namely, that there may be a review by the Supreme Court of the United States where the decision of the state court, although ostensibly rendered on principles of general law and resting thus upon a "nonfederal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary or a mere device to prevent a review of the decision upon the federal question. Leathe v. Thomas, 207 U. S. 93, 99 [28 Sup. Ct. 30, 52 L. Ed. 118]; Vandalia R. R. v. South Bend, Ibid, [207 U. S. 359, 367, 28 Sup. Ct. 130, 52 L. Ed. 246]." But even then, if the principle adopted by the state court as one of general law "has fair support, we are not at liberty to inquire whether it is right or wrong, but must accept it, as we do other state decisions of nonfederal questions. Murdock v. Memphis, 20 Wall. 590, 635 [22 L. Ed. 429]; Eustis v. Bolles, supra, p. 369 [150 U. S. 361] [14 Sup. Ct. 131, 37 L. Ed. 1111]; Arkansas Southern R. R. v. German National Bank, 207 U. S. 270, 275 [28 Sup. Ct. 78, 52 L. Ed. 201]." Mr. Justice Van Devanter, in Enterprise Irrigation District v. Farmers' Mutual Canal Co., 243 U. S. 157, 164, 37 Sup. Ct. 318, 321 (61

L. Ed. 644). For the purposes of the presentings according to those rules and principles decision, but without passing upon the point, we accept that limitation, although stated in another connection, as applying to the cases at bar.

The cases at bar have been decided, as was the earlier case in 227 Mass. 466, 116 N. E. 873, where no attempt was made to raise federal questions upon what we conceive to be principles of general law. These principles have broad application to all persons who are connected with contracts and undertakings of any sort which are contrary to express prohibitions of law or otherwise illegal. Notwithstanding the arguments directed to the end of demonstrating the unsoundness of the former decision either in its statement of the governing rules of law or in its application of them to the facts alleged in the bill, we remain content with what there was decided. It stands both upon the doctrine of stare decisis and of res judicata.

**

*

[12] If, however, we are wrong in the view that no federal question is presented, then we are of opinion that the plaintiff has not been deprived of his property without due process of law, and has not been denied the equal protection of the laws. This involves "the consideration of what is due process of law. A precise definition has never been attempted. Its fundamental requirement is an opportunity for a hearing and defense, but no fixed procedure is demanded." Ballard v. Hunter, 204 U. S. 241, 255, 27 Sup. Ct. 261, 266 (51 L. Ed. 461). "The fundamental requisite of due process of law is the opportunity to be heard. Louisville & Nashville R. R. v. Schmidt, 177 U. S. 230, 236 [20 Sup. Ct. 620, 44 L. Ed. 747]; Simon v. Craft, 182 U. S. 427, 436 [21 Sup. Ct. 836, 45 L. Ed. 1165]." Grannis v. Ordean, 234 U. S. 385, 394, 34 Sup. Ct. 779, 783 (58 L. Ed. 363). The words of Mr. Chief Justice Fuller in Caldwell v. Texas, 137 U. S. 693, 697, 11 Sup. Ct. 224, 226 (34 L. Ed. 816) are these:

* *

"Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the state, the constitutional requisition is satisfied. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of govern ment, unrestrained by the established principles of private right and distributive justice."

It was said in Jones v. Buffalo Creek Coal Co., 245 U. S. 328, 329, 38 Sup. Ct. 121, 122 (62 L. Ed. 325), that:

"Error of a trial judge in * * entering judgment after full hearing does not constitute a denial of due process of law."

which have been established by our jurisprudence for the protection and enforcement of private rights." Pennoyer v. Neff, 95 U. S. 714, 733 (24 L. Ed. 565).

[14] We are unable to discover any foundation for the contention that the plaintiff has been denied the equal protection of the laws. Resort has been had in deciding his cases to rules of law which are familiar. The substance of ancient maxims of the common law, such as in pari delicto potier est conditio defendentis, and ex turpi causa non oritur actio, and the principles which inevitably flow from them, form the basis of the decision. These principles have been applied to varying phases of human affairs in this commonwealth for more than a century beginning with Worcester v. Eaton, 11 Mass. 368. The decision has been rendered upon principles of general law alone constantly recognized and enforced, not only in this commonwealth but in many other jurisdic tions including the Supreme Court of the United States. Harriman v. Northern Securities Co., 197 U. S. 244, 295, 296, 25 Sup. Ct. 493, 49 L. Ed. 739; Pullman Car Co. v. Central Transportation Co., 171 U. S. 138, 150, 151, 18 Sup. Ct. 808, 43 L. Ed. 108, and cases there collected; Dent v. Ferguson, 132 U. S. 50, 65-68, 10 Sup. Ct. 13, 33 L. Ed. 242; McMullen v. Hoffman, 174 U. S. 639, 654, 655, 19 Sup. Ct. 839, 43 L. Ed. 1117; Riggs v. Palmer, 115 N. Y. 506, 511, 512, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; Taylor v. Chester, L. R. 4 Q. B. 309, 313; White v. Franklin Bank, 22 Pick. 181; Huckins v. hunt, 138 Mass. 366; Horton v. Buffinton, 105 Mass. 399; West Springfield & Agawam St. Ry. v. Bodurtha, 181 Mass. 583, 587, 61 N. E. 414; Eastern Expanded Metal Co. v. Webb Granite & Construction Co., 195 Mass. 356, 81 N. E 251, 11 Ann. Cas. 631, and cases there collected; Otis v. Freeman, 199 Mass. 160, 85 N. E. 168, 127 Am. St. Rep. 476; Rudnick v. Murphy, 213 Mass. 470, 471, 100 N. E. 643, Ann. Cas. 1914A, 538.

In its last analysis the plaintiff's contention is that our decision "is so plainly arbitrary and contrary to law as to be an act of mere spoliation." It is needless to amplify further our conclusion that "we fail to perceive the slightest semblance of ground for such a contention." Delmar Jockey Club v. Missouri, 210 U. S. 324, 385, 28 Sup. Ct. 732, 735 (52 L. Ed. 1080).

The plaintiff also invokes the full faith and credit clause of section 1, article 4, of [13] The plaintiff in the cases at bar the Constitution of the United States and sought the forum of the state court. It is in- section 237 of the Judicial Code (Act March dubitable that he is and was subject to its 3, 1911, c. 231, 36 Stat. 1156) as amended by jurisdiction. He has been heard fully upon the act of Congress approved September 6, every issue which he has raised. The proce- 1916 (39 Stat. 726, c. 448, § 2 [U. S. Comp. dure has been according to established prac- St. 1916, § 1214]) in support of its contice. Painstaking consideration has been tention that it is entitled to share in the given to his every argument. The conclusion, profits of the Stamp Company for the year so far as it is adverse to his contentions, has 1915. We are unable to discern that these been reached by "a course of legal proceed-provisions are apposite to the issues here de

pending. See Stadelman v. Miner, 246 U. S.
544, 38 Sup. Ct. 359, 62 L. Ed. 875, and Ire-
land v. Woods, 246.U. S. 323, 38 Sup. Ct.
319, 62 L. Ed. 745.

In each case let the entry be:
Bill dismissed, with costs

BECHTOLD v. RAE et al.

(Supreme Judicial Court of Massachusetts. Franklin. Oct. 10, 1918.)

1. INNKEEPERS 10 ELEVATOR

GENCE.

--

NEGLI

In action against hotel keepers for death in elevator, if rear door of elevator was open when it was started, it was evidence of negligence. 2. INNKEEPERS 10 ELEVATORS CIENCY OF EVIDENCE.

SUFFI

ELE

In action against hotel keepers for death in elevator, evidence held to justify finding that rear door of elevator was open when it was started, and remained open up to accident. 3. INNKEEPERS 10 NEGLIGENCE VATOR-SUFFICIENCY OF EVIDENCE. In action against hotel keepers for death in elevator, evidence held to justify finding that failure to close door in rear of elevator contributed to happening of accident, and that failure was negligence.

4. INNKEEPERS 10-INJURIES IN ELEVATOR -FINDING OF NEGLIGENCE.

Though there was nothing to show exact way in which elevator accident occurred on hotel premises, hotel keepers still could be found to be negligent if jury were satisfied on evidence injury was due to their neglect. 5. INNKEEPERS 10-INJURIES IN ELEVATOR -EVIDENCE-BOARD OF ELEVATOR REGULA

TIONS.

In action against hotel keepers for death in elevator, certain of regulations of board of elevator regulations, created by St. 1913, c. 806, were properly admitted in evidence, there being evidence to show they were violated, and had

the force of law.

6. INNKEEPERS 15-OPERATION OF ELEVATOR-PENAL OFFENSE.

Operation of power elevator on hotel premises by unlicensed operator and without any interlocking device preventing operation unless rear door was closed, being in violation of regulations of board of elevator regulations, created by St. 1913, c. 806, was a penal offense. 7. INNKEEPERS 10-INJURIES IN ELEVATOR -EVIDENCE OF NEGLIGENCE-VIOLATION OF REGULATIONS.

In action against hotel keepers for death in elevator, operation of elevator by unlicensed operator and without interlocking device, in violation of regulations of board of elevator regulations, created by St. 1913, c. S06, was evidence of negligence.

8. INNKEEPERS

10-INJURIES IN ELEVATOR -DUE CARE-QUESTION FOR JURY. In action against hotel keepers for death in elevator, under St. 1914, c. 553, whether deceased was not in exercise of due care was properly submitted to jury.

1078(1)-WAIVER OF

9. APPEAL AND ERROR
EXCEPTIONS-FAILURE TO ARGUE.
Exceptions not argued are waived.
Exceptions from Superior Court, Franklin
County, William Cushing Wait, Judge.
Action by Margaret Bechtold, administra-
trix, against Joseph F. Rae and others.

There was a verdict for plaintiff, and defendants except. Exceptions overruled.

Wm. A. Davenport and Charles Fairhurst, both of Greenfield, for plaintiff. Charles S. Knowles, of Boston, for defendants.

CROSBY, J. This is an action brought against the defendants, who conducted the Crawford House, a hotel in Boston, for the conscious suffering and death of the plaintiff's intestate, while he was a guest, and was being carried in an elevator from the office floor to the floor on which he had been assigned a room.

His death was caused by being caught between the floor of the elevator and the upper casing of a door leading into the elevator well. The front of the elevator, where the door opening into the office was located, was sixty inches wide and fifty-two inches deep; directly opposite the door above referred to there was another door, at the back of the elevator. This rear door was used to reach floors in the rear of the hotel which were not on the same level with the floors to which access was had through the front door. The floor next above the office, called the parlor floor, was twenty-two inches above the office floor, and was reached by means of the elevator through its rear door. The elevator, a power passenger car, was operated by means of a lever located at the left side of the car, as it was entered, between the front and rear doors; the lever being about eighteen inches from the front door and about thirty-four inches from the rear door.

The accident occurred about half past two o'clock on the morning of September 12, 1916, The elevator was in charge of one Webster, a night watchman in the employ of the defendants. He testified that he passed the deceased and got the key to the room at the office and when he returned the deceased, who was a large man, had just entered the elevator and stood "between the lever and the door at the back, filling that part of the elevator." He further testified in substance that when he started the elevator with his hand on the lever, he was facing the office and the deceased was behind him; that when the car had gone up a short distance he turned and saw the legs and feet and so much of the body of the deceased as was below the middle of the abdomen, in the car; that the upper portion of the body was caught be tween the floor of the elevator and the top of the door which opened into the parlor floor.

[1] It is the contention of the plaintiff that when the elevator was started the rear door was open; if so, it was evidence of negligence.

[2, 3] The only evidence upon this question came from Webster who testified that, from the time he went on duty up to the time the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

plaintiff's intestate entered the elevator, the of the accident. Certain of these regularear door had not been opened; but he also tions were properly admitted in evidence, testified that just before taking the deceased and had the force of law. There was eviup he did not know whether the rear door dence to show that the regulations so adwas open or not; and that he "did not look mitted were violated by the defendants. to see whether the rear door was open or [6, 7] The evidence was undisputed that closed when [he] * * * got on the ele- while Webster was duly licensed to opervator." In view of these conflicting state-ate the elevator from May 22, 1915, for one ments, and the evidence as to the position of year, that no license for that purpose was the body of the deceased when the elevator | afterward issued to him until September came to a stop, it could have been found that the rear door was open at the time the car was started and remained open up to the time of the accident. The jury could have found that the failure to close this door contributed to the happening of the accident, and that such failure was negligence on the part of the defendants. Hayes v. Pitts-Kimball Co., 183 Mass. 262, 64 N. E. 249; Munsey v. Webb, 231 U. S. 150, 34 Sup. Ct. 44, 58 L. Ed. 162.

[4] Although there was nothing to show the exact way in which the accident occurred, still the defendants might be found to be negligent if the jury were satisfied upon the evidence that the injury was due to their neglect. Heuser v. Tileston & Hollingsworth Co., 230 Mass. 299, 119 N. E. 683; Davis v. Boston Elevated Railway, 222 Mass. 475, 111 N. E. 174; McNicholas v. N. E. Tel. & Tel. Co., 196 Mass. 138, 141, 81 N. E. 889; Woodall v. Boston Elevated Railway, 192 Mass. 308, 78 N. E. 446; Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 62 N. E.

379.

[5] Under St. 1913, c. 806, a board described as the "Board of Elevator Regulations" was created by the Legislature, with authority to frame regulations relating to the construction, installation and operation of all elevators then installed or thereafter to be installed. This board duly framed such regulations, and they were in force at the time

14, 1916. It thus appears that at the time of the accident he operated the elevator in violation of law. It also appeared that the elevator was not equipped with any interlocking device which would prevent the operation of the car unless the door was closed.

The operation of the elevator in violation of the foregoing regulations was a penal offense and could have been found to have contributed to the happening of the accident. Accordingly it was evidence of negligence on the part of the defendants. Finnegan v. Winslow Skate Mfg. Co., 189 Mass. 580, 76 N. E. 192; Baldwin v. American Writing Paper Co., 196 Mass. 402, 409, 82 N. E. 1; Doolan v. Pocasset Mfg. Co., 200 Mass. 200, 85 N. E. 1055.

[8] It could not have been ruled that the deceased was not in the exercise of due care, as that question was properly submitted to the jury under St. 1914, c. 553. We need not consider whether the evidence was sufficient to warrant a finding in favor of the plaintiff independently of the statute.

[9] As the jury found for the defendants under the count for conscious suffering, the defendants' first and second requests have become immaterial; the third could not properly have been given. The exceptions argued, for the reasons above stated cannot be sustained; those not argued are treated as waived.

Exceptions overruled.