4 A.2d 871 | N.H. | 1939
At the former transfer of this case there was no direct evidence as to what if any control the plaintiff had over the manner in which Heartz drove her car. Otherwise the facts then considered were the same as those now before us and a majority of this court held that they were not sufficient to invoke the civil liability imposed by the licensing statute. P. L., c. 101, s. 9. The defendants now contend that this evidence of control, although there is nothing to show that the control testified to was any greater in extent than that which might ordinarily be inferred from the relation of a host-owner to his guest-chauffeur, compels a difference in result. Their reasoning is that this definite evidence of the plaintiff's control over the driving of her friend established the relationship of master and servant between them under the rule laid down in McCarthy v. Souther,
This contention raises the question of the nature, scope and extent of the civil liability imposed by the legislature when it enacted the licensing statute, and this question is one of statutory construction. Johnson v. Railroad,
Before considering this question it will be of assistance to summarize the facts which raise it. At the time of the accident the plaintiff, who was duly licensed, was not herself operating her car. She was riding in it, but had relinquished its operation to a friend of several years standing who, she reasonably but erroneously believed, had a license to operate motor vehicles upon the ways of this state. At the former transfer we held that these facts were insufficient to invoke the civil liability imposed by the licensing statute under the rule of Johnson v. Railroad, supra, and this conclusion, under familiar principles, is not now open for reconsideration. Smith v. Railroad,
In addition to the facts previously considered it now appears in explicit language that the plaintiff had retained the right to control the manner in which her friend drove the car. In reality, because of the control inherent in the relationship of a host to his driver-guest, this evidence adds nothing to the facts previously considered. But it is sufficient to show that the relationship of master and servant subsisted between the plaintiff and her driver, (McCarthy v. Souther, supra; Hutchins v. Company,
In our opinion this question must be answered in the negative. The reason for this is that the liability imposed upon a master for the faults of his servant by the doctrine of respondeat superior is a vicarious one not based upon any actual wrongdoing on the master's part, and, at the former transfer of this case, it was held by a majority of this court that the provisions of the licensing statute were not comprehensive enough to warrant the inference that the legislature intended by it to press its policy of highway safety through licensing to the ultimate extent of depriving innocent persons of their civil rights. In other words we then held that the Johnson case goes to the verge of the law.
The dissenting opinion at the prior transfer shows that other views may be entertained as to this legislative intention. However, in the interest of continuity of interpretation and also because of the cogency of the reasoning of the majority opinion, we believe that the view there expressed should be adhered to. That reasoning does not now require recapitulation. But, in addition thereto it is to be noted that with the exception of persons under sixteen, persons guilty of reckless (P. L., c. 102, s. 12) or drunken (Ib. 15) driving, conviction for the third time in any calendar year of some other offenses (Ib. 29) and the use of an automobile in the larceny of agricultural products, (P. L., c. 380, s. 8), the legislature has made no specific rules to *71 determine who shall or shall not be entitled to a license to drive. Aside from the above, the question of the mental, moral, physical and emotional qualifications for a license is committed to the discretion of whoever may from time to time occupy the office of Commissioner of Motor Vehicles. It seems to us clear that if the legislature had intended to promulgate a complete and fully integrated program of safety by the requirement of a license it would have implemented that program with definite provisions for some sort of a physical or psychological examination, and not left so fundamental a matter as a licensee's fitness to drive to the discretion of an appointed official.
Further support for the view that the legislature did not intend to carry this policy of safety to the extent of punishing those blameless as a matter of fact is to be found in the reasoning of this court in its other opinions interpretative of the licensing statute. In Johnson v. Railroad,
This latter question did arise, however, in Vidal v. Errol,
In our previous opinion in the instant case, conformably with the Johnson and Vidal cases, we held that the legislature in enacting the statute had evinced no intention to include within its terms any persons other than those named therein and that the plaintiff was not such a person for the reason that the word "permit," as used in the statute, was intended by the legislature to refer only to owners who knowingly allow their cars to be operated by unlicensed drivers. In other words, we interpreted the statute in such a way as to exclude from the legislative mind any intention to deprive of civil rights a person who, through reasonable ignorance, allows an unlicensed operator to drive his car. This conclusion was based in part upon the view that the legislative purpose in enacting the statute was adequately served by confining its application to those and only to those who have personally violated its terms, and in part upon the view that had the legislature intended to impose a liability for conduct blameless as a matter of fact it would have said so in explicit language. These reasons are fully as cogent in the case of a master innocent of actual wrongdoing as they are in the case of an equally innocent bailor. Logical consistency with the reasoning of the opinion at the former transfer compels the conclusion that it was not the intent of the legislature in enacting this statute to impose a civil liability upon a master for the unlicensed driving of his servant when the circumstances are such as to indicate that the master was free from any actual personal wrongdoing in the premises.
It is objected that this conclusion with respect to the licensing statute commits us to a similar conclusion with respect to the speed law (Laws 1927, c. 76, s. 2) the law of the road (P. L., c. 103, s. 16) and other like statutes which regulate the manner in which motor vehicles shall be operated upon the ways of the State. We neither concede that it does nor contend that it should. Statutes of the latter sort have for their sole object the promotion of highway safety. *73 There is no secondary revenue objective. They substitute an express legislative standard of conduct for the common-law standard of due care; they provide a new rule of accountability for the old rule of the common law. Both the statutory and the common-law rules are regulatory of the manner of driving and the doctrine of respondeat superior is properly as much a part of the rule which originates in the statute as it was of the former rule of the common law which the statute superseded. From the nature and purpose of statutes of this sort it seems evident that the legislature in passing them did not intend to affect the common-law accountability of a master for his servant's act.
The licensing statute, on the other hand, is of a different sort. It is not in substitution for an older standard of conduct but it creates a new one. It makes wrongful an act which "would not `have been a legal fault, per se, but for the legislative declaration making it so.'" Vidal v. Errol,
This is not to say that the licensing statute repeals or in any way alters the common-law rule which makes a master accountable for his servant's acts. All that we hold is that the legislature in enacting the licensing statute indicated its intention to impose the civil liability which is thereby created upon only the particular individual who is personally guilty of violating its terms.
Under the rule of Disalets v. Company,
Judgment on the verdict.
BRANCH, J., was absent; PAGE, J., concurred; ALLEN, C. J. and MARBLE, J., dissented. *74