Riss & Company v. United States

• Decision Date: 31 December 1958
• Docket Number: No. 16005.,16005.
• Citation: 262 F.2d 245
• Parties: RISS & COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

262 F.2d 245 (1958)

RISS & COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee.

No. 16005.

United States Court of Appeals Eighth Circuit.

December 31, 1958.

Lester M. Bridgeman, Washington, D. C. (A. Alvis Layne, Jr., Washington, D. C., John L. Harlan, St. Louis, Mo., and Ivan E. Moody, Kansas City, Mo., were with him on the brief), for appellant.

Harry F. Horak, Atty., Interstate Commerce Commission, Kansas City, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with him on the brief), for appellee.

Before JOHNSEN, VOGEL and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

Pursuant to authority of § 204(a) of the Interstate Commerce Act, as amended 49 Stat. 546, 49 U.S.C.A. § 304(a), the Interstate Commerce Commission promulgated certain motor carrier safety regulations. Section 195.4 thereof, 49 C.F.R. § 195.4 (1949 Ed., 1952 Sup.) dealing with maximum driving time for operators of motor carriers subject to the act, provides that except under conditions with which we are not here concerned, "no carrier * * * shall permit or require a driver employed or used by it to drive or operate for more than 10 hours in the aggregate in any period of 24 consecutive hours, unless such driver be off duty for 8 consecutive hours during or immediately following the 10 hours aggregate driving and within said period of 24 consecutive hours * * *."

Section 222(a) of the Interstate Commerce Act, supra 49 U.S.C.A. § 322(a), provides that: "(a)ny person knowingly and willfully violating any provision of this chapter, or any rule, regulation * * * thereunder * * * for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined not more than $100 for the first offense and not more than $500 for any subsequent offense * * *."¹

An information containing twenty counts was filed by the Government against Riss & Company, Inc. The first count charged that "(o)n or about September 28, 1956, defendant, a common carrier by motor vehicle, did knowingly and wilfully permit and require James Tindall, a driver in its employ, to operate a motor vehicle engaged in the transportation of property from St. Louis, Missouri, to Cincinnati, Ohio, for more than 10 hours in the aggregate, to wit, 13 hours, in the period of 24 consecutive hours beginning at 12:01 a. m. on the 28th day of September, 1956, without said driver being off duty for 8 consecutive hours during or immediately following 10 hours aggregate driving and operating in said period of 24 consecutive hours." The remaining counts were similar in substance, differing only in date, name of driver; in some instances, the point of origin and destination and the number of excess driving hours. The date of the last alleged violation was January 31, 1957.

The case was tried without a jury, and in due time, the Court found the defendant guilty on fourteen counts and not guilty on two counts of the information, and a fine aggregating $3,350 was duly imposed. The Government dismissed as to four of the counts. Defendant has appealed, and for its basic point strenuously insists that the judgment of conviction cannot stand because the evidence does not establish beyond a reasonable doubt that the defendant has knowingly and willfully violated known regulations of the Interstate Commerce Commission. More precisely, it is urged that the record does not support a finding that the Government proved beyond a reasonable doubt that defendant's course of conduct was such as to establish that it willfully neglected to take proper precaution to prevent excess driving time violations. We are unable to agree and conclude that there was ample evidence to justify the verdict and judgment.

In an effort to dissipate the essential elements of "knowingly and willfully," defendant places much emphasis on the evidence which established beyond doubt that it had in effect, during the period of violations, an elaborate and comprehensive program designed to insure compliance with all regulations of the Interstate Commerce Commission, generally, and the regulation restricting driving time in particular. A detailed resume of the evidence on this phase of the case is unnecessary to a solution of the basic issue. Briefly, the program was under the supervision of a Director of Safety and Personnel, whose functions included over-all supervision of the driving and duty hours of drivers; defendant had a "Master Driver Program" under which 18 of its best drivers were sent to the University of Kansas for a week of instruction in driver-training and ICC regulations; it conducted a continuing program of driver-training and instruction in ICC and company regulations; it had a driver supervisor at every terminal at which the drivers were based (in this case, St. Louis, Missouri); defendant operated its own safety patrol cars on the highways, and the patrol car operators would stop drivers on the road and check their equipment and log books; defendant also utilized services of a similar patrol service provided by an independent company; and it also had in effect a safety incentive award program whereby drivers without safety violations are given "points" toward acquisition of various items of merchandise.

Under ICC and company regulations, defendant's drivers were required to, and, in fact, did turn in daily their logs to their home terminal. Under the plan and program of defendant, it was contemplated that the following procedure would be pursued by its employees with respect to drivers' daily logs. The driver supervisor stationed at the St. Louis terminal would pick up all drivers' logs each morning and present them to the terminal log clerk who, during the period here involved, was Mrs. Jane Rulon. It was Mrs. Rulon's duty to check all logs for violations of on duty hours, and excess driving time violations, and to make report thereof to the driver supervisor. She was also required to record on a form designated as SP-26 all violations appearing on the logs, and forward said form daily to the defendant's headquarters in Kansas City, Missouri, where they would be examined and checked for violations. When the driver supervisor was informed of an infraction of the regulations, he would discuss it with the driver personally, if he was available, or would notify the driver by letter that he had been in violation, and he also issued formal reprimands or instructions. The drivers' logs would remain in the home terminal for ten or fifteen days following the month in which they were filed, and they were then sent to the Kansas City office, where they were available for inspection.

Directing attention to the instant violations, it should be said at the outset that defendant concedes that the evidence establishes that its involved drivers not only reported their on-duty time and driving hours on the logs which were turned in at the St. Louis terminal when each round trip was completed, but that said logs revealed the drivers drove more than ten hours in the aggregate, in a twenty-four hour period, without being off duty for eight consecutive hours during or immediately following the driving period. For some reason not apparent from the record, Mrs. Rulon failed to report the excess driving time to the driver supervisor or to the St. Louis terminal manager, neither did she record the violations on the form which she forwarded daily to the Kansas City office. The log clerk in the personnel and safety department, stationed in Kansas City, handled daily drivers' logs sent to Kansas City from all terminals. He would check the logs "day by day for errors in construction," but never checked the logs against the SP-26 forms to determine whether all violations were being reported thereon. According to their testimony, none of the employees of defendant charged with the responsibility of handling the drivers' logs or reports based thereon, including the St. Louis terminal manager, the log clerk in the personnel and safety department, the over-all director of safety and personnel, the driver supervisor at the St. Louis terminal, and the office manager at the St. Louis terminal, acquired actual notice of the violations by the drivers until at, or subsequent to the time of filing of the information in this case.

Contentions, similar to that here advanced by defendant, have received judicial consideration in cases where the involved statute forming the basis for the prosecution or recovery of penalty used the words "knowingly and willfully." From decisional law, the principle emerged that determination of the meaning of those words rested upon the character of the offense charged. Thus, in Chicago, St. P., M. & O. R. Co. v. United States, 8 Cir., 162 F. 835, certiorari denied 212 U.S. 579, 29 S.Ct. 689, 53 L.Ed. 659, where this Court was concerned with a charge that defendant had granted rebates in violation of the statute known as the "Elkins Act," 49 U.S. C.A. § 41 et seq. this pronouncement appears at page 842 of 162F: "In most cases the evil mind or bad intent accompanies the doing of a wrongful act, and no difficulty arises in the disposition of a case involving an offense malum in se.² It is only when an offense malum prohibitum³ is charged that the application of the general doctrine becomes doubtful."

St. Louis & S. F. R. Co. v. United States, 8 Cir., 169 F. 69, 70, concerned an action to recover a penalty for failure of defendant to comply with a statute providing for the manner of handling livestock in transit, known as the "28-hour law." The opinion deals specifically with the meaning of the words "knowingly and...