Bowdler v. St. Johnsbury Trucking Co.

• Decision Date: 02 February 1937
• Citation: 189 A. 353
• Parties: BOWDLER v. ST. JOHNSBURY TRUCKING CO. et al.
• Court: New Hampshire Supreme Court

189 A. 353

BOWDLER

v. ST. JOHNSBURY TRUCKING CO. et al.

Supreme Court of New Hampshire. Merrimack.

Feb. 2, 1937.

Transferred from Superior Court, Merrimack County; Lorimer, Judge.

Action by Gladys N. Bowdler against St. Johnsbury Trucking Company and others. The case was transferred, in advance of trial without ruling, to the Supreme Court.

Case discharged.

Case for negligence to recover damages sustained by the plaintiff as the result of a collision between an automobile owned by her and in which she was riding, and the defendant's truck, on a highway in Concord. The plaintiffs car was operated at the time of the accident by one Heartz, who was not licensed to operate a motor vehicle in accordance with Public Laws c. 101, § 9. The evidence introduced at the preliminary hearing tended to show that the plaintiff reasonably believed that he did have a license. He was not in her employ as a chauffeur, but on the trip, in the course of which the collision occurred, he drove at his own suggestion. The trial court transferred, in advance of trial, without ruling, the question whether the plaintiff is precluded from recovery because the driver was not licensed.

Laurence I. Duncan and Robert W. Upton, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway, Piper & Jones, of Concord, and Jonathan Piper, of Concord, for defendants.

BRANCH, Justice.

"No person shall operate a motor vehicle upon any way in this state unless" licensed * * * or permit such a vehicle owned or controlled by him to be so operated by a person not so licensed, except as otherwise herein provided." P.L. c. 101, § 9. The only exception is that of persons being taught to operate if accompanied by a licensed operator. Id. section 10.

The driver of the plaintiff's car did not have a license, although it might be found, and must here be assumed, that she reasonably believed that he did have one. The defendant argues that by allowing her car to be driven by a person who, in fact, had no license, the plaintiff violated the statute; that the question of her knowledge or belief is immaterial and that the rule laid down in the case of Johnson v. Railroad, 83 N.H. 350, 143 A. 516, 61 A.L.R. 1178, precludes a recovery by her.

"Undoubtedly it is within the power of the Legislature to declare an act criminal irrespective of the intent of the doer of the act (State v. Cornish, 66 N.H. 329, 21 A. 180, 11 L.R.A. 191; State v. Ryan, 70 N. H. 196, 46 A. 49, 85 Am.St.Rep. 629), but the question, whether criminal intent is a necessary element of a statutory crime is one of statutory construction." Coutrcmarsh v. Metcalf, 87. N.H. 127, 175 A. 173, 175. As ever in such cases the problem is to be solved by an ascertainment of the legislative intent. The question here in issue was not raised in Johnson v. Railroad, supra, and the court carefully refrained from expressing an opinion upon it. "The suggestion that, although blamelessness in fact may be made ground for liability, it is not usually cause for complaint, * * * has no application here. There is no question but that the plaintiff knew his driving a car was prohibited." Id, 83 N.H. 350, 354, 143 A. 516, 518, 61 A.L.R. 1178.

In determining the intent of the Legislature, an important factor to be considered is that "principle of natural justice" to which the common law early gave expression in the maxim "actus non facit reum nisi mens sit rea." Broom's Legal Maxims, 306. In Lyons v. Child, 61 N.H. 72, 75, this principle was stated by Doe, C. J, as follows: "An act which a man does not intend to commit, of which he is unconscious, and for which he is in fact blameless, is not ordinarily imputed to him as a penal offence by the unwritten or the written law." In that case this principle and the closely related rule which in civil cases "generally imposes liability for actual fault only" were held to be of controlling importance in the construction of that provision of the law of the road which provides that a traveler in a vehicle shall seasonably turn to the right when meeting another vehicle traveling in the opposite direction. G.L. c. 75, § 11 (P.L. c. 90, § 1). It was there held that the defendants were not chargeable with a "constructive fault" when they "were in no actual fault either for not knowing their left wheel was on the left side of the centre of the road, or for not knowing they were approaching the plaintiff's wagon."

The common-law rule which "generally imposes liability for actual fault only" and which "nowhere" has "been more clearly and decisively declared than in this jurisdiction. Brown v. Collins, 53 N.H. 442, 16 Am. Rep. 372" (Carleton v. Railroad, 82 N.H. 263, 266, 132 A. 680, 681) has been regarded as decisive in the construction of other statutes. Carleton v. Railroad, supra; Jarvis v. Claremont, 83 N.H. 176, 180, 139 A. 747.

Considering the Motor Vehicle Law in the light of these fundamental principles, the conclusion seems plain that the Legislature did not intend to impose criminal liability for "an act which a man does not intend to commit, of which he is unconscious, and for which he is in fact blameless" (Lyons v. Child, supra) or to reinstate the discredited doctrine of liability without fault. "In this situation, it would be natural to expect that any legislative reinstatement of the old theory of liability would be expressed in explicit terms." Carleton v. Railroad, supra.

The language of the statute above quoted reinforces this conclusion. By its terms, the owner of a motor vehicle who shall "permit" an unlicensed person to operate it is guilty of a criminal offense. The word "permit" ordinarily implies knowledge of and consent to the thing permitted. See numerous illustrative cases collected in Words and Phrases, First, Second, Third and Fourth Series, under the heading Permission—Permit, and 48 C.J. 924.

Undoubtedly the plaintiff permitted Heartz to perform the physical acts required in the operation of her car. It does not follow that she consented to his violation of the statute. Such consent depended upon her knowledge of his unlicensed status, of which we must assume that she was justifiably ignorant. It is not illegal for the owner of a motor vehicle to permit another person to drive it. This is all that the plaintiff knowingly did. To hold that in making this unforbidden arrangement she acted at her peril and took the risk that other facts unknown to her might render her conduct illegal, would be contrary not only to the fundamental principle of natural justice set forth above, but to the ordinary meaning of the words of the statute.

The statutory rules for the construction of statutes provide that "words and phrases shall be construed according to the common and approved usage of the language." P.L. c. 2, § 2; Colston v. Railroad, 78 N. H. 284, 99 A. 649; Floyd v. Verrette, 79 N.H. 316, 108 A. 693. Some reason of compelling force would be necessary to justify a conclusion that the Legislature attached to the word "permit" any meaning not in accord with the common and approved usage of the language.

It is argued that such a reason is found in the purpose of the statute which, as declared in Johnson v. Railroad, supra, is "to protect other users of the highways" (Id., 83 N.H. 350, 351, 143 A. 516, 517, 61 A. L.R. 1178); that since the protection of travelers was the legislative purpose, an interpretation of the statute which gives the greatest possible protection should be adopted.

One answer to this argument is that it proves too much. It asserts that a statute designed for an ascertainable purpose should be given the most drastic possible interpretation in order to accomplish that purpose in its widest possible extension. Judged by this standard, the cases of Lyons v. Child and Carleton v. Railroad, supra, were wrongly decided and the long line of cases involving the liability of towns for defective highways beginning with Hubbard v. Concord, 35 N.H. 52, 69 Am. Dec. 520, would be subject to the same reproach. We do not recognize in this argument an accepted canon of construction. In the recent case of Davis v. W. T. Grant Co., 185 A. 889, this court explained at length why such an argument could not be adopted.

Logically this argument is fallacious in at least two respects. First, it involves an equivocation in regard to the purpose of the Legislature. While it may safely be assumed that the purpose of the statute was to give protection to other users of the highway, it by no means follows that the greatest possible protection was intended. The Legislature undoubtedly intended to give such protection as the act provided. It begs the question to make a further assumption in regard to the extent of the designed protection and then to construe the language of the statute so as to give effect to that assumption.

Second, bearing in mind the nature of our problem, i. e, the ascertainment of the intent of the Legislature from the language used in the statute, the above argument describes a complete circle. In outline it is as follows: The statute was passed because the Legislature intended to give travelers the greatest possible protection from unfit drivers and it intended to give travelers the greatest possible protection from unfit drivers because the statute was passed.

It has been suggested that the plaintiff should be charged with knowledge of the driver's unlicensed status because she did not demand that he show a license before permitting him to drive her car. It is argued that an obligation to make such a demand is a necessary corollary of the statutory provision that an operator shall have his license on his person or in an easily accessible place in the motor vehicle. The provision to which reference is thus made reads as follows: "Every person operating a motor vehicle shall have the certificate of registration for said vehicle and his license to operate upon his person or in the vehicle in some easily accessible place." P.L. c. 101,...