Steere Tank Lines, Inc. v. United States

• Decision Date: 20 April 1964
• Docket Number: No. 20446.,20446.
• Parties: STEERE TANK LINES, INC., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

330 F.2d 719 (1963)

STEERE TANK LINES, INC., Appellant, v. UNITED STATES of America, Appellee.

No. 20446.

United States Court of Appeals Fifth Circuit.

December 30, 1963.

Rehearing Denied April 20, 1964.

James H. Doores and Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., for appellant.

William L. Hughes, Jr., Robert S. Travis, Asst. U. S. Attys., Fort Worth, Tex., Barefoot Sanders, U. S. Atty., for appellee.

Before BROWN, WISDOM and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

Appellant, a motor common carrier operating under the authority of the Interstate Commerce Commission, was convicted on each of fourteen counts¹ of a criminal information after jury trial of violating the following regulation, 49 CFR, § 195.8(a) promulgated by the Commission in that drivers' logs were falsified:

"(a) Every motor carrier shall require that a driver\'s daily log shall be made in duplicate by every driver employed or used by it and every driver who operates a motor vehicle shall make such a log. Form BMC-59 and the instructions for its use, which form and instructions are set forth below, shall be used for this purpose.

* * *

"1. Drivers and motor carriers will be held responsible for the proper maintenance of the daily logs. Drivers shall keep the log current to the time of the last change of duty status. Failure to make logs, failure to make required entries therein, falsification of entries, or failure to file logs with the motor carrier will make both the driver and the carrier liable to prosecution."

The punishment provided for violation of this regulation is set out in Title 49 U.S.C.A. § 322(a) as follows:

"Any person knowingly and wilfully violating any provision of this chapter, or any rule, regulation, requirement, or order thereunder, or any term or condition of any certificate, permit, or license, for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined not less than $100 nor more than $500 for the first offense and not less than $200 nor more than $500 for any subsequent offense."

There is no contention that the regulation is invalid, or that violation of it is not otherwise subject to the punishment. And, as appellant notes in its brief, having had a former conviction under this regulation, the punishment was assessed by the trial judge at the minimum of two hundred dollars on each count. This appeal is from the judgment of conviction, and the errors assigned go to a claimed fault in the charge, and to the admission in evidence, over objection, of testimony concerning discrepancies in logs other than those charged in the information.

Appellant had its main office in Dallas, Texas and its Safety Department in Albuquerque, New Mexico. In December 1960, it leased certain trucks, to be driven by drivers who were to be in its employ but who were theretofore assigned to the trucks and employed by the lessors, from a terminal in Dumas, Texas for the purpose of hauling asphalt from Dumas to points in the State of Colorado. The log violations charged involved drivers operating out of this terminal, and occurred in May 1961. The lease agreement was cancelled in August 1961.

The evidence showed that an Interstate Commerce Commission inspector had conferred with appellant with regard to log violations in 1956, 1957, 1958 and 1960. The government presented the testimony of six drivers who were involved in the violations charged in twelve of the fourteen counts. They testified in substance that they had made a practice of preparing and filing logs with appellant containing false entries as to the times they were off duty and that the practice was followed in operations from Dumas to the points in Colorado, including the trips involved in the respective counts of the information. Their purpose was to earn extra money by driving over and above the lawful number of hours allowed by the regulations.² There was also evidence, aside from the fact that the drivers wanted to make the extra money, that the extra hours were necessary in order for appellant to handle the business on hand with the available equipment and manpower.

One of the two lessors served as dispatcher for appellant at the Dumas terminal and had knowledge of the falsification of the logs. The logs were sent by him to the Safety Department in Albuquerque. A simple comparison of these records with port of entry records obtained by each driver from the State of Colorado and turned in to the dispatcher would have disclosed the falsification. These port of entry records were sent from Dumas to the main office of appellant in Dallas instead of to the Albuquerque office and, of course, one of the contentions of appellant on the trial was that they had no knowledge that such a comparison would have shown the discrepancies, and that the Safety department in Albuquerque did not have access to the Dallas office records.

The evidence disclosed that during or near the period of the violations charged, one hundred twenty five false logs were filed by thirty five drivers operating from four different terminals of appellant relating to trips to Colorado. This disclosure resulted from a comparison by a safety inspector for the Interstate Commerce Commission of approximately three hundred of the Colorado port of entry receipts with the driver's daily logs. The records compared were for the months of April and May 1961, and covered trips to Colorado only. The admission of this evidence forms the basis of one of the claimed errors. However, it was relevant and material to the charges against appellant for falsifications during the month of May 1961 in connection with trips to Colorado, and went to the question of wilfulness. Roe v. United States, 5 Cir., 1963, 316 F.2d 617. Cf. United States v. E. Brooke Matlack, Inc., D.C.Md., 1957, 149 F.Supp. 814. This evidence also served to negate the evidentiary defense put forth throughout the trial that the violations charged were the result of mere negligent or accidental failure to require proper logs, something that would not amount to a crime under the regulation. See Inland Freight Line v. United States, 10 Cir., 1951, 191 F.2d 313. We thus hold that there was no error in admitting this evidence.

The assignment of error based on the jury charge presents a question more difficult of solution. It is now beyond doubt that a corporation may be held criminally liable. New York Cent. & H. R.R. Co. v. United States, 1909, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613; United States v. Illinois Central R. Co., 1938, 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773; United States v. A & P Trucking Company, 1958, 358 U.S. 121, 79 S.Ct. 203, 3 L.Ed.2d 165; Inland Freight Lines v. United States, supra, Riss & Company v. United States, 8 Cir., 1958, 262 F.2d 245; and United States v. E. Brooke Matlack, Inc., supra. These cases also settle the proposition that knowledge of employees and agents of the corporation is attributable to the corporation, and that their acts may amount to wilfulness on the part of the corporation.

It is clear from the case of United States v. Illinois Central R. Co., supra, that "knowingly" and "wilfully" are separate elements of the violation, but that neither term connotes an act done with evil purpose or criminal intent. The Supreme Court there pointed out:

"Mere omission with knowledge of the facts is not enough. The penalty may not be recovered unless the carrier is also shown `willfully\' to have failed. In statutes denouncing offenses involving turpitude, `willfully\' is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394 54 S.Ct. 223, 78 L.Ed. 381, 384, shows that it often denotes that which is `intentional, or knowing, or voluntary, as distinguished from accidental,\' and that it is employed to characterize `conduct marked by careless disregard whether or not one has the right so to act.\' The significance of the word `willfully\' as used in § 3 now before us, was carefully considered by the circuit court of appeals for the eighth circuit in St. Louis & S. F. R. Co. v. United States (C.C.A. 8th) 169 Fed. 69. Speaking through Circuit Judge Van Devanter, now Mr. Justice Van Devanter, the court said (p. 71): `"Willfully" means something not expressed by "knowingly," else both would not be used conjunctively * * *. But it does not mean with intent to injure the cattle or to inflict loss upon their owner because such intent on the part of a carrier is hardly within the pale of actual experience or reasonable supposition. * * * So, giving effect to these considerations, we are persuaded that it means purposely or obstinately and is designed to describe the attitude of a carrier, who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.\'"

See also Riss & Company v....