*1 lights they danger, their obvious dimmed heedlessly proceeded un- into the they point where
known until reached a skidding car, by stop it was too late to engine. striking feet, before view, this constitutes conclusive our contributory negligence, and evidence accordingly judgment is reversed. Maine, Hanscomb, John E. Portland ST. JOHNSBURY TRUCKING COM Hay, Portland, with whom A. Wilfred PANY, Defendant, Inc., Appellant, Maine, brief, appellant. was on for Mueller, Attorney, Herman F. Inter- America, UNITED STATES of Commission, Boston, state Commerce Appellee. Mass., Mills, whom Peter U. S. No. 4881. Atty., Maine, brief, Portland, was on appellee. Appeals, United States Court of First Circuit. MAGRUDER, Judge, Before Chief
March HARTIGAN, and WOODBURYand Cir- Judges. cuit Judge.
HARTIGAN, Circuit appeal judgment
This is from a District Court of States August 17, District Maine entered F.Supp. 812, sentencing the de- fendant to fine of based $700.00 finding verdict the court the defend- violating ant two (49 77.817) C.F.R. 77.823 and 49 C.F.R. promulgated by the Interstate Commerce under 18 U.S.C. 835. 24, 1952, defendant, On October largest transportation one of the companies England, transported in New storage 70 wet batteries from Cam- bridge, Massachusetts, Portland, Maine. While the defendant’s driver unloading storage these wet batter- ies the defendant’s truck at consignee’s place business, an in- spector of the Interstate Commerce Com- spot investigation mission made of shipping truck and of in inspector of the driver. although discovered that the *2 weighed 3,550 shipping pounds papers original per- thus and were carriers taining 77.823,1 as C.F.R. articles placarded the truck was not on each side these failed batteries. he to attach having sign bearing required label, label, and rear with a or word if regu- “dangerous” by required shipping papers as attached to the clip, accidentally inspector paper lation. The discovered with a dis- also lodged leaving shipping papers posses- hands therefrom after rating sion of the driver did state that the of the clerk and before it could stapled shipping batteries were of a “white label”2 ture, na- be defendant’s by by required papers prepared which statement is which were the bill- ing clerk, possibility C.F.R. no 77.817.3 there would be system of the under the defendant’s office presented Evidence was trial only being intercepted mistake because showing the the efforts made any knowledge rating clerk had comply Regulations of it to with the the content of the Interstate Commerce Commission billing Regulations. dealing labeling shipping with the orig- manager testified that office relating papers articles. transported carrier, inal which had handling papers shipping The method of shipper to from the Cambridge at the defendant’s ter- use Cambridge terminal, prop- had fendant’s particular freight minal at the time this erly nature of indicated subject was handled was the of consider- its the batteries testimony by billing able the defendant’s required 77.817, 49 C.F.R. the manner manager. is not office It billing clerk would have defendant’s state in detail what this method was ex- shipping cept employee, rating realized to note ap- required a clerk, supposedly acquainted white label. original however, question pears, carrier and had neglected correctly proper any label to attach the labels also Marking 1. C.F.R. 77.823 on motor vehicles and trailers other than “§ vehicles, any Every transporting quantity (a) tank motor motor vehicle ex poison material, poison A, gas, A, plosives, class or radioactive class D class transporting label; every motor red radioactive materials vehicle B, liquids, 2,500 pounds gross weight explosives, or more of class flammable compressed oxidizing liquids, gas, materials, or B flammable solids corrosive class pounds gross gas, 5,000 poisons, tear or more of two or more placarded groups shall be marked on each and rear side high placard lettering contrasting in letters not less inches on a background as follows: ............Explosives (1) Explosives, A class Explosives, ............Dangerous (2) class B liquid ..............Dangerous (3) Flammable (4) ...............Dangerous Flammable solid .............Dangerous (5) Oxidizing material ...............Dangerous liquid (6) Corrosive gas ...............Compressed (7) Compressed Gas (8) gas, A............Poison Gas Poison class .....................Dangerous gas (9) Tear ...............Dangerous (10) Poisons, B class Dangerous Dangerous, poison (11) Material” D ...... class —Radioactive 2. 73.402(3); setting 72.5; other memorandum forth the fol- 49 C.F.R. 49 C.F.R. lowing 73.244(c) (31). information for each class 49 C.F.R. being transported: shipping article Shipping papers. name, quantity by weight, “§ 77.817 49 C.F.R. the total vol- Every ume, (a) appropriate vehicle driver or otherwise as of each explosives danger- transporting explosive or other kind or other arti- cle, shall have his receipt, ous label when re- manifest, quired memorandum hill for the outside container of such shipping order, shipping paper, lading, article.” imprisoned not $1,000 papers. rat- more than shipping defendant’s both; and, year, or ing clerk, course, have realized more than one should any injury bodily Storage Ass. if the death or Batteries “Electric violation, person Wet”, from such results With Chemicals *3 $10,000 original more than be fined not shall carrier’s described on the was imprisoned necessary more than ten or years, papers, white not shipping a made c. or June both. on the defendant’s label despite original to Stat. 739.” failure the carrier’s truck violated the shipping upon lowable mining pers related to batteries notify a truck dangerous indisste fester, who truck was 823, supra), waived, ing upon merce ments ous gaged engaged commerce other ous uids,_ oxidizing materials, flammable mission er The pertinent rating “Whoever « “The “§ limits of the articles via substances, which shall be bind- required placarding, relied failure the defendant’s court, compressed gases, and whether or not 2,500 pounds (see 49 C.F.R. 77. which found that the papers. appearance States of on » shall formulate articles to safe U.S.C. clerk explosives interstate in interstate or direct all here, provides: all totalled the liquids, flammable Regulations carrying white and who to land shippers shipping transportation within [*] shipping common jury trial to placard any result of The defendant’s explosives and oth- label jurisdiction label or water. the defendant had Commerce Com- determine whether [*] more common dispatcher if which insofar as corrosive other making the defendant’s explosives foreign the defendant’s papers. weights carriers violates nature of white the failure articles. having shipping pa Interstate [*] fined not including by land, danger- foreign poison- carrier solids, in deter label ship- the [*] any of all liq- mani en- solely any the al light of cerned herein must prior knew when the beyond tinuously The district court whose in the Illinois Central case welfare offense the the offense with willfully” Act, 34 303 773, case was a civil action “The ed States court reasoned that used the element determination of the ent expire, sions Government lar criminal instance, purposes should have is found that content of the edge’ The court said [122 then concluded: meaning conviction is as “* * * Thus, considering language respondent basic issue penalty commodity in negligence duty was to unload the cattle yet the evils which cattle Stat. requires the Live Stock confined exercise section particularly failed ‘knowingness’ of section failed therefore, intent. to recover Illinois Cent. R. expiration of criminal requires known of the and that the statutory was held liable because sought and its which in this case is having “knowingly of its in a railroad car would proof reasoned 45 U.S.C.A. word * * * notify comply this was a reasonable care 533, 534, F.Supp. issue turns applicable. considered no statutes as con- the * * yardmaster volume. brought by the Transportation 36 hour only ‘knowingly’ be remedied.” element of intent. defendant that here as nature of knew, particu- regard Co., * * * “ 813] ‘knowl- §§ employee respond- whether be con- period. period 71-74. public provi- Unit- upon That The and to bat- criminal intent crimes and of said federal pounds, of- differentiated common law teries exceeded 2500 between notwithstanding facts, offenses fenses welfare cargo attempt transported in- did stat- to construe the fendant commerce, here. concerned there would be ute with we are terstate “know- He ingly converting” violation of statutes stated the crime regulations, required a mental ele- herein concerned. ment which ly trial had erroneous- court “Having in mind that at least necessary. declared But the was not three of defendant’s clerical em- criminal statute involved in the instant ployees inspected the invoices con- *4 comparable con- case is with that cerning shipment; in strued the Morissette case Justice operator of totalled the the totalizer category particular Jackson said that the dangerous amount of of all stealing, pur- crimes, embezzling, of loining, i. e. assigned particular to this involved in the Morissette etc. trailer; dispatcher, who the loading had been over from the case taken supervised trailer of the consequently required an mon law and duty and explosive attach an whose it element of intent. The statute with label on the outside sticker not set are concerned does we vehicle, inspected mani- an which was a crime at forth seventy fest and saw the does law and therefore this case common square each of which four inch bore scope the main not come denoting labels, its white holding States, of Morissette v. United nature; and, the local driver supra. in the manifest his designating type and amount of Boyce case, supra, Motor Lines cargo, lacking proper in- analyzed history but Supreme Court scription, inescap- the conclusion is purpose 835, of 18 U.S.C. § complete able that defendant had case, involved the instant statute knowledge of all of the essential many ways history purpose its are relating transportation creating facts analogous to those of statutes of these items.” public welfare offenses which were dis- cussed the Morissette case. This in- The defendant contends that strength to lend would seem to the Gov- stant case is within the of Moris- ernment’s thesis that U.S.C. § States, 1952, v. United sette prohibitum a crime malum creates 96 L.Ed. and that Con- S.Ct. necessary. thus no criminal intent alleged gress intended that the violations However, Supreme Court concludes an state must “be evil done interpretation of 18 its stating U.S.C. § mind”. page 342, in 342 U.S. at find do not discuss We page 331: at length whether or not the Morissette punishes only of the issue case is determinative here “The statute those Court, Supreme Regula- three weeks because the violate the decided, requirement pres- Morissette case was tion. This after the of the Boyce culpable Motor Lines v. United ence of sary construed intent as a neces- States, 342 U.S. element offense does very destroy any statute with which much to force in the ar- gument case, application Reg- concerned. The Morissette we are hand, construed 18 U.S.C. ulation would be the other so unfair * * * dealing a statute the crime must be held invalid. stealing, purloining, This statement conflicts with embezzling, the state- of knowingly of the trial converting, property ment court etc. instant “ * * * particular made of- Jackson States. Justice the United requires no necessity fense element of analysis criminal in- extensive an willfully neglected “culpable” exercise its may true that tent”. Regulation inquire into the in mean- under the identical are not and “criminal” availability alternative such an ing, court that the trial it is clear erroneously interpreted route.” 18 U.S.C. § culpable or no element Similarly must the Government here re- committed and thus blamable intent prove defendant, aware authority further error. As versible batteries, de- nature of these holding 835 re- for quires U.S.C. § liberately with- chose to them culpable proving intent the labeling placarding its trucks Circuit, Appeals Third Court of or that it, Boyce stated case was when the before neglected willfully proper pre- to take with 18 is read “When the prevent cautions in order to which it the statute under U.S.C. § being transported in violation promulgated which makes its Interstate Commerce offense, it becomes violation a criminal Regulations. merely ma- offense is clear judgment of the district court specific prohibitum *5 lum wrongful intent, but that vacated, aside, is the verdict is set and knowledge e., i. actual the case is remanded to that court for reg- under of the existence a new trial. wrongful it, and a intent to evade ulation offense. is of the essence of the This Judge MAGRUDER, (concur- Chief concedes.” United States United States ring). Boyce Lines, Cir.,1951, Motor 3 188 v. agree judgment I of dis- that the 889, 890, 891. F.2d. trict court should be set aside and the proceedings. Boyce case remanded further Supreme Motor Court though may be, entirely guide It clear, this is not provided Lines case a the dis- alleged district court was led to viola- trict court in the trial of against judgment enter the defendant Commis- tions of Interstate Commerce by reason of an erroneous view of Regulations involved in the such as sion opinion, law. In its district court 342 case. stated in U.S. instant It was F.Supp. par- said 330, [122 342, page 816] page at at S.Ct. ticular offense in the informa- sustain a conviction for violat- order to “requires Regulation no element of criminal tion ing an Interstate Commerce “ intent”, and that if it is found that the providing vehi- ‘Drivers of motor knew, “or defendant the exercise of any explosive, transporting inflam- cles known, reasonable care should have compressed liquid, inflammable mable dangerous content of the batteries gas avoid, gas, poisonous so far and the of said and, by practicable, feasible, where pounds, exceeded 2500 batteries withstanding and not- driving routes, prearrangement of into facts, through congested thoroughfares, cargo transported the in interstate com- places assembled, crowds where are merce, would there be a violation of the tracks, tunnels, viaducts, car and street regulations, statutes here- crossings’ the Government language That in concerned.” would only “prove petitioner must not a to sanction conviction of seem the cor- have taken another which could route negligence poration on the basis of mere- commercially practicable was both appreciably ly, I think cannot be done under (in safer its avoidance 835, imposing penalty a 18 U.S.C. thoroughfares, etc.) crowded regula- violates” “whoever it did follow. It must be also shown tion of Commerce Com- petitioner knew that there was such mission. practicable, yet safer route and delib- erately opinion simply took applies the more route of the court through tunnel, language petitioner Supreme or that Court in legislature, States, corporation. Lines, Inc., Boyce v. Motor this; may chooses, precise 329, 337, L.Ed. about be U.S. thought not, have to the courts indicated often it by implication. seriously they ham- do requirement proof the best can will legislative precision in Inter- per absence effective enforcement regulations, matter, courts have construed Commerce some state Congress liberty applied to mean criminal statutes the answer is striking corporate have from 18 defendant cannot up that a to fix that knowledge guilty prescribed unless prescribed element U.S.C. § higher corporation— “knowingly”—as applied to some official mens rea — ego” perhaps here an “alter the sort called violation of knowledge. Congress corporation say, See is to involved. That —has Corp., Trappers People v. Fur into sometimes Canadian offense what convert the offense”, 1928, “public N.E. welfare N.Y. been called a has knowledge find, guilty as I A.L.R. 372. So far can no element construing imprecise by providing courts, rea, specific mens federal or other generally by agent, Congress, whoever, have Acts of himself hierarchy gas, poison transports explosives, flam- line in the drawn agents corporation. solids, other officers mable George Fish, safeguards which F. United States modities without may Cir., Inc., cer- 154 F.2d lawful Commission, 1946, 328 tiorari denied of the Interstate 1639; United States shall be subject *6 Cir., Co., F.2d penalty. discussion Armour & the to See 343; States, Maine Unit- Boston & R. R. v. v. United in Morissette States, Cir., 252-260, 431. L.Ed. F.2d ed applying words, in a cor- In other to Congress punishing poration an ofAct provides be an that shall knowingly” something, If a statute it does “whoever “knowingly” to adulterated usually enough charge sell offense is held to be complete milk, if the is guilt any agent corporation the the to be adul- acting he knows corporation, fendant sells what or servant of the though milk, he does not even corporation terated in the his em- the of the criminal of of knowledge, know the existence ployment, the has principle statute, general time-honored principles on the with the accordance ignorance of the agency applied law that the criminal law of as in deter- But a statute mining liability. Am.L.Inst., where is no excuse. law civil Agency, provides, does U.S.C. seq. as § 272 et Restatement regulation knowingly violates a enough view, whoever it would be On this the Interstate corporation liability from absolve offense, guilty of an it would criminal offense of for a the sort here knowingly person seem question, no member of the board he knows of unless violate directors, higher or no regulation and knows terms of executives, knew that doing contrary is he is what -that being modity transported by again regulation. defini- Here company quantity truck in forbidden is the control of the offense tion markings required by without legislature. discretion regulation. enough Nor would it be higher corporation, executives bar In the sought here, the defendant show as legal corporation. This artificial en- lay care to the utmost down for took anything, except tity “know” cannot guidance employees knowledge of the subordinate some extent designed being beings, acting compliance procedures to assure human human regulation. rating clerk, If corporation, attributed to the with the re- apparently aware regulation, actual quirements of the shipment knowledge impending batteries, storage and had “wet” was of charged corporation with by the passing information manifester; and if defendant’s to the weigh- subsequently manifester, who shipment, was aware ed the weighed of the allowable excess knowledge lbs., items then these two employees in the
possessed two attributed would of their duties course Therefore, on that corporation. fact, hypothesis defendant’s when the regular of his dispatcher, course in the shipment duties, to be taken caused driver, I truck be con- have to think it would should information, cluded, in the corporation “did vehicle a storage batteries, com- wet electric liquid, chemicals, a corrosive plete with high- weighing 3,555 pounds, on Massachusetts, Boston, ways, * * * Portland, without Maine warning placards. *7 Appellant, Pons, Francisco BALLESTER America, UNITED STATES Appellee. No. Appeals, Court of States First Circuit. 22, 1955. March