Bowdler v. St. Johnsbury Trucking Co. , 88 N.H. 331 ( 1937 )

"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, s. 9. The only exception is that of persons being taught to operate if accompanied by a licensed operator. Ib. s. 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, 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; State v. Ryan, 70 N.H. 196) but the question whether criminal intent is a necessary element of a statutory crime is one of statutory construction." Coutremarsh v. Metcalf 87 N.H. 127. 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." Ib., 354.

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, s. 11 (P. L., c. 90, s. 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," (Carleton v. Railroad, 82 N.H. 263, 266) has been regarded as decisive in the construction of other statutes. Carleton v. Railroad, supra; Jarvis v. Claremont, 83 N.H. 176, 180.

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" 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, s. 2; Colston v. Railroad, 78 N.H. 284; Floyd v. Verrette, 79 N.H. 316. 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," (Ib., 351); 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, 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. Company, ante, 204, 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, s. 16. The conclusion that this section was intended to be supplemental to section 9 and was designed to specify the method which car owners must adopt in ascertaining whether another person holds a license, finds little support in the language quoted and still less in the history of the law. This provision had its origin in Laws 1905, c. 86, s. 4, which provided as follows: "Every licensee when operating a machine shall keep his license with him and exhibit it upon the request of any officer of the law." The language of the present statute was adopted in Laws 1911, c. 133, s. 10. The express command that the license be exhibited "upon the request of any officer of the law" was in that act transferred to another section (s. 21), and now appears in section 19 of chapter 102 of the Public Laws, but the obvious purpose of this section as enacted in 1905 was not thereby altered. The requirement that a person operating a motor vehicle shall have his license readily accessible is designed primarily to facilitate identification and investigation in case he is involved in an accident upon the highway. Other sections of the act sustain this conclusion. P. L., c. 101, ss. 4, 6; Ib., c. 102, ss. 17, 19. There is nothing to indicate that it was designed to impose by indirection upon every owner of a motor vehicle a specific duty to demand the production of a license, before permitting another person to operate his car.

The practice of car owners to allow friends to drive their cars is undoubtedly common, but it is not common to demand of a friend that he show his license before permitting him to drive. It would come as a violent surprise to most car owners to be told that such a demand is required by the statute and is the only sure way of avoiding a criminal prosecution. We do not think that the language of section 16 above quoted demands or permits a construction so contrary to the amenities of life in a civilized community.

The foregoing considerations lead to the conclusion that the question transferred by the Superior Court must be answered in the negative and it is so ordered.

Case discharged.

PAGE, J., was absent: ALLEN, C. J., dissented: the others concurred.