Bourne v. Whitman ( 1911 )

Knowlton, C. J.

These are actions to recover for injuries received from a collision between two automobiles, in one of which were the two plaintiffs.' The accident happened late in the evening of August 15,1908. The defendants asked the judge to instruct the jury as follows: “ If the jury find that at the time of the accident the defendant was driving on the right of the middle of the travelled part of the way, it is evidence of the exercise of due care on his part, and if the jury shall find that the plaintiff Bourne was driving his machine in an opposite direction and collided with the defendant, this is evidence that the plaintiff was acting in violation of R. L. c. 54, § 1, requiring him to drive to the right of the middle of the travelled part of the road, and unexplained indicates negligence on the part of the plaintiff.” There was evidence to which the request was applicable. There was also other evidence bearing upon the questions whether the plaintiffs were in the exercise of due care and whether the defendants were negligent. The request was in accordance with the law as laid down in Perlstein v. American Express Co. 177 Mass. 530, and in other cases, and it well might have been given. Perhaps the defendants properly might have gone further and have asked for an instruction that if the jury found the facts stated in the request, and also found that this violation of the statute was one of the direct and proximate causes of the collision; the plaintiff Bourne could not recover. Newcomb v. Boston Protective Department, 146 Mass. 596.

The plaintiffs’ contention is that the judge was not bound to grant the request, because it asked for a ruling upon the effect of a particular part of the evidence, upon a question on which there was other testimony. It is true that the general subject of the plaintiff’s care and the general subject of the defendant’s negligence were involved in the two branches of the request, and there was other important testimony bearing upon each of these subjects. Applying the rule strictly, we are of opinion that the judge was not bound to comply with a request in this form, and to select evidential facts that might or mighty not be found by the jury, and separate them from other parts of the testimony as subjects for a special instruction upon their effect as evidence. Hicks v. New York, New Haven & Hartford Railroad, 164 Mass. 424 and cases cited.

One of the defendants was a father, who owned the automobile, and the other was his minor son nineteen years of age, who operated it as Ms chauffeur a part of each year, without compensation. One of the questions before the court was whether the son, Richard P. Whitman, was acting as his father’s servant at the time of the accident, or was running the automobile for Mmself alone. He had had a license to operate an automobile as chauffeur for.his father, William P. Whitman, in 1905, 1906, 1907 and 1908, up to August 14, 1908, when the license expired. He had made an application for another license which was issued to him on August 17. On August 15, 1908, the day of the accident, he was operating the machine without a license. The evidence tended to show that he was of large experience in this business and presumably thorougHy competent.

The defendants offered to prove that Dr. Harold O. Hunt, who was riding with Richard P. Whitman in the automobile, was the holder of an operator’s license which he had with him at the time of the accident. TMs evidence was excluded and the judge ruled that the possession of a license by another person riding with him, afforded him no justification.

This brings us to the consideration of the language in the St. 1903, c. 473, § 4, as amended by the St. 1905, c. 311, § 4, as follows: “ The provisions of this section shall not prevent the operation of automobiles by unlicensed persons if riding with or accompanied by a licensed chauffeur or operator.” These words were originally in the St. 1903, c. 473, § 6, and this section was repealed by St. 1905, c. 311, § 7. In the repealing statute they were inserted in § 4 of the former act by an amendment of that act, but the word “ hereinafter ” in § 5 of St. 1903, c. 473, was not changed to “ herein,” as it should have been when the quoted language which previously had followed this word was now made to precede it by putting it in the earlier section. W e are of opinion that the failure to make this change was a mere inadvertence, and that an unlicensed person may operate an automobile, if riding with or accompanied by a licensed chauffeur or operator, under the authority of St. 1903, c. 473, § 4, as amended by the St. 1905, c. 311, § 4.

The exclusion of the evidence and the ruling were at variance with the provision relied on by the defendants, if the language is taken literally and interpreted broadly. What is the meaning of the language? Evidently it was intended to provide an opportunity for persons to learn to use an automobile by running it under the supervision of a licensed person, and thus acquire skill by practice, without which one never could become skilful. It does not necessarily mean that the unlicensed operator shall be under the legal control of the licensed chauffeur, for the operator might be the owner of the automobile, and the chauffeur, a person hired by him to give instructions under his direction. But the language of the statute undoubtedly contemplated by the words, •“ riding with or accompanied by,” proximity sufficient to enable the licensed operator to maintain such supervision as might be necessary for safety, and to render assistance,if need be, with reasonable promptness. In a case like the present, where the unlicensed operator was a person of skill and great experience, whose license had expired only the day before and who was expecting another license within a day or two, the supervision and reasonable proximity required by law would not be as close as in ordinary cases, but we are of opinion that the law contemplates at least knowledge on the part of both persons, of the existence of a relation like that of operator without a license, and licensed chauffeur or operator accompanying him, in a position to advise or assist with reasonable promptness, if necessary.

Neither the offer of proof nor the ruling shows plainly what construction was put upon the statute by the judge. He may have made his ruling on the ground that the defendants did not go far enough in their offer, to bring the case within the authority of the statute. As the burden of showing error is on the excepting party, we are inclined to hold that the offer did not go far enough and that no error is shown. But if the relation between the defendant Richard P. Whitman and Dr. Hunt was that contemplated by the statute and known to both of them, we are of opinion that the defendant was protected, even if it was not expected that any particular supervision would be required, and if they were not in such proximity as would be necessary for safety between a licensed chauffeur and an unlicensed operator just beginning to learn to manage a machine.

At the request of the plaintiffs, the judge instructed the jury that “ Richard P. Whitman at the time of the accident was a trespasser upon the highway and had no legal right then and there to operate the car.” Under the first part of the instruction the plaintiffs owed him no duty except to refrain from inflicting an injury upon him wantonly or recklessly. He had no right to put his car in the way of the plaintiffs, or to interfere with their use of the road in any part which they chose to occupy. The rights and duties of both parties were different from those of ordinary travellers. Presumably the instruction affected the decision, and if it was erroneous, there must be a new trial.

For the discussion of this part of the case, we assume that the defendant Richard received no protection from Dr. Hunt’s license. He was then violating the law in not having obtained another license before running the car. What effect did this violation have upon the right of either party to recover, when there was an accidental collision between his car and that of another driver on the highway?

It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. It has been said in a general way that such a violation is evidence of negligence of the violator, and it has sometimes been stated that this would show negligence, that can be availed of as a ground of recovery by one who suffers any kind of an injury from him while this illegality continues ; but it is now settled that it is not even evidence of negligence, except in reference to matters to which the statute relates. Davis v. John L. Whiting & Son Co. 201 Mass. 91, 96 and cases cited. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty. As was said by Mr. Justice Matthews in Hayes v. Michigan Central Railroad, 111 U. S. 228, 240: “ The duty is due not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery.” Intimations that there is a separate and distinct duty to individuals under general criminal laws, are not in accordance with sound reasoning or the weight of authority.

If we consider the effect of such a violation of law by a plaintiff, upon his right to recover, the principles that have been recognized are instructive. They were considered long ago in connection with our Sunday law. It has been established from early times that one who is violating a criminal law cannot recover for. an injury to which his criminality was a directly contributing cause. It was early held in this State that one travelling in violation of the statutes as to the observance of the Lord’s day, could not recover for an injury received while so travelling. Smith v. Boston & Maine Railroad, 120 Mass. 490 and cases cited. Lyons v. Desotelle, 124 Mass. 387. Day v. Highland Street Railway, 135 Mass. 113. White v. Lang, 128 Mass. 598. McGrath v. Merwin, 112 Mass. 467. These decisions on the Sunday law have been much criticised in the opinions of other courts and by writers of textbooks. Broschart v. Tuttle, 59 Conn. 1. Sutton v. Wauwatosa, 29 Wis. 21. Baker v. Portland, 58 Maine, 199. Baldwin v. Barney, 12 R. I. 392. Johnson v. Irasburgh, 47 Vt. 28. Platz v. Cohoes, 89 N. Y. 219. The ground of the criticism may be stated in a word, as a supposed failure to distinguish between criminality which is a cause, and criminality which is a mere condition of an injury for which recovery is sought. But this distinction is now thoroughly established in our law. Newcomb v. Boston Protective Department, 146 Mass. 596. Farrell v. Sturtevant Co. 194 Mass. 431, 434. Moran v. Dickinson, 204 Mass. 559, 562. The Sunday law, so called, has been repealed as to its effect as a bar to recovery in actions of tort showing a violation of it by the plaintiff. R. L. c. 98, § 17. The old case of Gregg v. Wyman, 4 Cush. 322, as to the effect of the Sunday law in barring a claim in trover against one who had driven a horse hired for service on Sunday to a different place from that agreed upon, was overruled by this court before the partial repeal of the Sunday law. Hall v. Corcoran, 107 Mass. 251. Other cases have been decided, in which it was held that illegality of the plaintiff was no bar to his recovery for an injury, unless his illegality was a cause directly contributing to the injury. Damon v. Scituate, 119 Mass. 66. Smith v. Gardner, 11 Gray, 418. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Moran v. Dickinson, 204 Mass. 559.

The only matter which seems to be left doubtful under our decisions in this class of cases, is what constitutes “ illegality,” which is sometimes a directly contributing cause of the injury. Some cases have been decided, which seem to imply that if there is an illegal element entering into a plaintiff’s act or conduct, and this act or conduct directly contributes to his injury, he cannot recover, although the illegal element or the objectionable quality of the act had no tendency to produce the injury, and the consequences would have been the same under the other existing conditions, if the criminal element had been absent. In other cases the decision seems to turn upon whether the criminal element in the act or conduct, considered by itself alone, operated as a direct cause to produce a result that would not have been produced under the same conditions in other respects, if the criminal element had been absent. This latter seems to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied many times in recent years, as the relations of men in business and society have grown complex with the increase of population, is a reason why the violation of a criminal statute of slight importance should not affect one’s civil rights, except when this violation, viewed in reference to the element of criminality intended to be punished, has had a direct effect upon his cause of action. Our decisions seem to have been tending toward the adoption of such a rule. Welch v. Wesson, 6 Gray, 505. Spofford v. Harlow, 3 Allen, 176. Steele v. Burkhardt, 104 Mass. 59. Damon v. Scituate, 119 Mass. 66. Hall v. Ripley, 119 Mass. 135. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Moran v. Dickinson, 204 Mass. 559, 562. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 157.

Under particular statutes, we are brought back to the question, what is the legal element which is the essence of the command or prohibition? In most cases, the effect of doing or failing to do that which the law forbids or requires under a penalty, when considered in reference to its relation to one’s civil rights in collateral matters, ought to be limited pretty strictly. Take the case of driving without sleigh bells in violation of the law of the road. R. L. c. 54, § 3. Kidder v. Dunstable, 11 Gray, 342. Counter v. Couch, 8 Allen, 436, 437. The requirement of the law is that “ No person shall travel on a bridge or way with a sleigh or sled drawn by a horse, unless there are at least three bells attached to some part of the harness.” The wrong to be prevented is the failure to have bells while travelling in this way. The travelling in other respects is unobjectionable. The question arises whether the act should be deemed illegal as a whole, in reference to the rule that the courts will not aid one to obtain the fruits of his disobedience of law, or whether in this aspect its different qualities may be considered separately. It is possible to decide this question either way, but we think it is more consistent with justice and with the course of decision elsewhere, to hold that, in reference to the law of negligence and the rule as to rejection of causes of action that are founded on illegality, an act may be considered in its different aspects in its relation to the cause of action, and if only that part of it which is innocent affects the cause of action, the existence of an illegal element is immaterial. We do not think, under this statute, that one who drives in a sleigh without bells should be treated as a trespasser on the highway, although he is punishable criminally for the failure to have the bells attached to the harness, and is liable in damages to any member of the public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty, the regular operation of any elevator by a person under the age of sixteen years, and the regular operation of any rapidly running elevator by a person under the age of eighteen years. If a person under the prescribed age, while employed to operate an elevator, is injured through the negligence of the owner, in leaving it in an unsafe condition, shall his violation of the statute by entering this service before reaching the prescribed age, be treated as criminality, entering into every one of his acts in moving the elevator, so as to prevent his recovery for an injury from the joint effect of his employer’s negligence and his own application of the power to raise or lower the elevator ? We think it better to hold, if his age and the degree of his competency, which might depend in part upon his age, had no causal connection with the injury, that his criminality was not a direct cause of the injury. In other words, that the punishable ele-' ment in the act is only disobedience as to age, and although his act in applying the power to the elevator which brought him in contact with the defect, is punishable, and in a sense illegal because of the existence of that element, in determining the relation of his conduct to the cause of action, to see whether the court will aid him in the prosecution of it, we ought to limit the illegality to that part of his conduct towards which the statute is particularly directed. We are to consider the specific thing at which the statute is aimed, and the immediate effect that it was intended directly and proximately to accomplish by its command or prohibition. A question of this kind arose in Murphy v. Russell, 202 Mass. 480, but it was not referred to in the opinion, as the case was decided on other grounds. Substantially, this question was decided in Moran v. Dickinson, 204 Mass. 559.

Take the provision in St. 1903, c. 473, § 5, that “ No person shall operate an automobile or motor cycle for hire, unless specially licensed by the commission so to do,” and the earlier provision in the same section that no person shall “ operate an automobile or motor cycle upon any public highway or private way laid out under authority of statute unless licensed so to do under the provisions of this act.” The operating of the automobile in itself is unobjectionable. The illegal element in the act is the failure to have a license. The purpose of the requirement of a license is to secure competency in the operator. If in any case the failure to have a license, looking to those conditions that ordinarily accompany the failure to have it, is a cause contributing directly to an injury, a violator of the law would be legally responsible to another person injured by the failure; or, if he is injured himself, would be precluded from recovery against another person who negligently contributed to the injury. But we are of opinion that his failure in that respect is only evidence of negligence in reference to his fitness to operate a car, and to his skill' in the actual management of it, unless in the case of the plaintiff, it is shown to be a contributing cause to the injury sued for, in which case it is a bar to recovery. We think that the operation of a car without a license, while it is a punishable act, does not render the operator a trespasser on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement contributed to the accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery. If the illegal quality of the act had no tendency to cause the accident, the fact that the act is punishable because of the illegality, ought not to preclude one from recovery for harmful results to which, without negligence, the innocent features of the act alone contributed.

The other part of this statute, relative to the licensing of automobiles, has been construed differently. In Dudley v. Northampton Street Railway, 202 Mass. 443, because of the peculiar provisions of the statute and the dangers and evils that it was intended "to prevent, it was decided, after much consideration, that the having of such a machine in operation on a street, without a license, was the very essence of the illegality, and that the illegality was inseparable from the movement of the automobile upon the street at any time, for a single, foot; that in such movement the machine was an outlaw, and any person on the street as an occupant of the automobile, participating in the movement of it, was for the time being a trespasser. Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed and is now the established law of the Commonwealth. Feeley v. Melrose, 205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 158. The difference between this provision of the statute and that involved in the present case is in'part one of form, but in connection with the form, it is still more the seeming purpose and intent of the Legislature as to permitting such machines upon the public ways without adequate means of identifying them and ascertaining their owner, together with the requirement that the machine itself, as a thing of power, shall have its own registration and legalization, the evidence of which it shall always carry with it. In the last of the cases cited is this language: “ Under the decisions, the operation of the unregistered automobile is deemed to be unlawful in every feature and aspect of it. Everything in the conduct of the operator that enters into the propulsion of the vehicle is under the ban of the law. . . . The operator, in running it there and thus bringing it into collision with the locomotive engine, is guilty of conduct which is permeated in every part by his disobedience of the law,” etc.

We are of opinion that the law of these last cases should not be extended to the provision of the statute requiring every operator to have a personal license to operate the car. The jury should have been instructed that the defendant’s failure to have a license was only evidence of his negligence as to the management of the car.

An important question at the trial was whether there was any evidence that Eichard P. Whitman was operating the automobile as the-servant of his father, at the time of the accident, or only on his own account. The weight of the testimony was that he was using it with his father’s permission, solely for his own purposes. But we are of opinion that the circumstances that he was the regularly employed chauffeur of his father, that he lived in his father’s family, that the persons whom he brought to the dance in the evening and carried home again just before the accident, were in the presence of his father and his family at the dance, that his father saw him start to take them home from the dance and told him he had better light his headlights, were proper for the consideration of the jury on the question whether he was representing his father in running the automobile at the time of the accident.

jExceptions sustained.