Strout v. Polakewich

DISSENTING OPINION.

Murchie, J.

I am unable to concur in the opinion in these cases; and since it represents the first interpretation of the law now under consideration, it seems advisable that I state the reasons for my personal view that the construction declared makes the statute operative over a far more liberal field than was contemplated by the Legislature.

The statute construed, R. S. 1930, Chap. 29, Sec. 35, was originally enacted as P. L. 1929, Chap. 327, Sec. 10. It is quoted in the majority opinion, as is the language of the defendant, which it is held factually may support the plaintiffs’ claims if jury judgment interpets that language as the opinion almost directs. It is applicable to the negligent operation of motor *142vehicles by “minors” under eighteen years of age, that word being used hereafter with that limited meaning.

The two most fundamental rules for the construction of statutes are (1) that judicial interpretation shall give effect to legislative intention, State v. Howard, 72 Me., 459; Lyon v. Lyon et al., Ex’rs., 88 Me., 395, 34 A., 180; 59 C. J., 948, Par. 568-(2a); 25 R. C. L., 960, Par. 216; and (2) that a statute which creates a liability unknown to the common law shall be strictly construed, 59 C. J. 1124 at 1126, Par. 665-(7a), and 1129, Par. 668-(8); 25 R. C. L., 1056, Par. 281; Flynn v. The American Banking and Trust Company et al., 104 Me., 141, 69 A., 771, 19 L. R. A., N. S., 428, 129 Am. St. Rep., 378. The rule of strict construction is expressed by the writer of the text in Corpus Juris as requiring that any established rule of law changed by statute should be considered “no further abrogated than the clear import of the language necessarily requires.” The text in R. C. L. says “clearly and necessarily requires.” Chief Justice Emery in the Flynn case, supra, declared that when such a statute is “susceptible of more than one construction it should receive that imposing the lightest burden,” which is to the same effect as the earlier statement of Mr. Justice Libbey in Wing v. Hussey, 71 Me., 185, that “no statute is to be construed as altering the common law, farther than its words import.”

To determine legislative intention, the purpose sought to be accomplished by the Legislature should be given consideration; State v. Howard, supra, 59 C. J., 958, Par. 570-(2); 25 R. C. L., 970 at 971, Par. 223, and 1013, Par. 253; and the entire enactment construed, rather than a particular part thereof; Campbell v. Rankins, 11 Me., 103, 59 C. J., 995, Par. 595-(b); 25 R. C. L., 1004, Par. 246.

At common law one was liable for his own negligence, and for that of a servant in a limited field, but no more. The statute enlarges the earlier defined boundaries of agency law in the field of negligence. The Legislature attempted to delimit the boundaries of the enlarged field by the use of four definitive *143words or phrases of control, two applicable to motor vehicle owners who caused or knowingly permitted its operation by a minor and two to any person (whether or not the owner of such a vehicle) who gave or furnished it to a minor.

The statutory words are “causing or knowingly permitting,” and “gives or furnishes.” At the outset it seems apparent that the careful phraseology of the statute, using changed forms of the two pairs of verbs, connotes some definite intention with reference to their meanings. “Causing or knowingly permitting” normally relates to one time or occasion, or to a particular class or kind of use. “Gives or furnishes” speaks also in present tense, but it would not strain construction to hold that it was ordinarily operative only where a vehicle was made available for the use of another with no particularity as to the time or kind of use.

The outstanding thing about the doublets is that each combines a word of definite import with one of wide signification. One cannot cause his motor vehicle to be operated without permitting its operation, even without knowingly doing so. One cannot give without furnishing. On the other hand, one may permit and not cause, or furnish and not give, in the common meaning of the latter word. In seeking to determine legislative intention, we face the problem as to whether there was a purpose to be served in contemplation of the legislative mind by the choice of words, or by their grouping and divergent form. There is an obvious distinction between “causing” and “knowingly permitting,” and a corresponding one between “gives” and “furnishes.” There must be implication of one in the fact that the definitive controls were paired. There can be no doubt that distinction was drawn between what might be done by the owner of a vehicle and some other p'erson. Liability is not imposed by legislative mandate upon an owner by what his wife, or some other person, causes or knowingly permits; but under the all-inclusive interpretation of the four words of the statute “any person who . . . furnishes,” it may well be that one can be held to have furnished who has authorized his wife *144to permit or, without stretching imagination too far, who has merely failed to forbid his wife to permit.

Statutory words, unless technical, are to be construed according to their common meaning. R. S. 1930, Chap. 1, Sec. 6, Par. I. The dictionaries are not particularly helpful in searching out the intent properly inferable from the words “causing,” “gives” and “furnishes,” but they are convincingly so as to the word “permitting,” because of the carefully expressed qualification thereon. The common meaning of “causing” is plain. Consolidating the definitions declared in three dictionaries, it involves initiative on the part of him who causes, best expressed in a secondary meaning noted in Funk & Wagnall’s Standard Dictionary — “to compel (one to do something).” There, as in the Century Dictionary, “give” and “furnish” are declared to be synonymous, but the primary meaning of “give” is stated as delivering or handing over or as transferring title or possession, in either case gratuitously or without compensation. If we construe “give” so broadly that no transfer of title is involved, it is squarely synonymous with “furnish,” and either or both would involve general availability to the donee of the thing given. The definitions of “give” in Webster are legion. “Furnish” is there defined somewhat restrictively — to supply or fit up (with what is wanted or necessary or proper), but there is support for the two concepts of the word on which emphasis is laid in the majority opinion — “to supply or provide.”

So far as these words are concerned, there is no guide within the statute to indicate whether the intent was to cover the broadest reasonable scope, or otherwise, but that properly inferable from the word “permitting” is plain. Permit, unqualified, covers a wide range. According to Webster it carries a dual meaning, importing either express consent or failure to prohibit. The other authorities define it with like effect, without drawing so clear a distinction between affirmative allowance and failure to negate. Legislative intent to limit its effectiveness within the former and narrow^ field is shown by the *145qualifying word “knowingly.” The majority opinion reads that word out of the statute.

By curious coincidence, the facts furnish definite instances (1) when this defendant caused the minor to operate a motor vehicle, and (2) when he knowingly permitted such operation. The factual situation is clear. Among the employees of defendant, on property so isolated that the services of a watchman were essential, were the minor, a watchman, and others. Confronted, on the day when the defendant spoke the words quoted in the seventh paragraph of the majority opinion to the minor, with the emergency of the watchman’s indefinite absence, the real purpose of the conversation was to secure the services of the minor as temporary watchman, in addition to his other duties. The reference to the car was incidental. It was maintained upon the property for business use. It had already been used twice by the minor for defendant’s business purposes. It was so used by defendant’s employees generally.

The minor was the principal witness for the plaintiffs. He freely and frankly admitted on cross-examination that he had no permission to use the car for pleasure; that it was not left with him for personal use; that there was no contemplation between him and the defendant that he should so use it; and that while he performed the duties of his regular employment and of watchman, he had a virtual 24-hour-a-day assignment with no time for pleasure riding. Working a 24-hour day where no meals were available, it was essential that he travel home and back occasionally to obtain sustenance and, perhaps, to change his clothing. Nothing could be plainer, as I view it, than that his authority to use the car was for those limited purposes only. Such is the clear import of the words used by the defendant, under all the circumstances. That they were so understood by the minor is manifest from his admissions, already enumerated, from his statement on redirect-examination that the reason he bought the gas and oil for the joy-ride he was taking when the accident litigated occurred was because the defendant had been “good enough” to let him use the coupe *146“for his [the defendant’s] work,” and from the obviously artificial attempt to set up a business purpose as reason for the joy-ride. Had the explanation been true, it would have been clearly proper to use the defendant’s gas and oil.

The interpretation declared ignores the rule requiring construction of any statute as a whole. The word “furnishes” is given so wide a connotation that just as it is impossible to give without furnishing, so it is equally impossible, so far as a motor vehicle owner is concerned, to either cause or permit its use without furnishing it. The intendment of the Act is taken as if the sole legislative control had been stated in the words whoever furnishes. This finds no support in legislative intention unless it is arbitrarily assumed that the long statutory recital of the limits of the new field of liability rests solely in a legislative tendency to verbiage. Such construction is impossible if recognition is given to the restriction which the word “knowingly” by any reasonable interpretation must impose upon the word “permitting.” There is equivalent lack of support when resort is had to known purpose in seeking to determine intention, which is susceptible of rather definite measurement. It is common knowledge among members of our Courts, our Bar, and citizens generally, that with the advent of the automobile and its widespread use, the strict principles of agency law resulted in much damage through negligent operation of motor vehicles by the minor children of their owners without recovery of compensation. The situation was nationwide. It clamored for remedy. In some states reform was accomplished by judicial legislation adopting the “family use doctrine.” This never became effective in Maine. Farnum v. Clifford, 118 Me., 145, 106 A., 344; Pratt v. Cloutier, 119 Me., 203, 110 A., 353, 10 A. L. R., 1434. In others legislative action imposed liability on the owners of motor vehicles for damages caused by any person operating by express or implied consent. In Maine and Kansas liability was limited to operation by minors and the application of the Act was defined by the words already discussed. *147The principle that an entire legislative act should be considered in the construction of any part thereof requires that we refer back to P. L. 1929, Chap. 327, and in that Act, we find two sections dealing with the operation of motor vehicles by minors, Sections 9 and 10. The Act under consideration traces back to Section 10. The preceding section, which is the preceding section in the particular session law, points clearly to the fact that the right of control, as to whether minors should be permitted to become licensed motor vehicle operators, was vested in parent or guardian, if the minor had any such. It was necessary, if minors were not to be barred from all employment which involved the operation of motor vehicles, that provision be included authorizing the employer of a minor to assent to his licensing when there was no father, or mother, or guardian.

The majority opinion lays no emphasis on the employer-employee relationship but the complete picture of the legislation is of importance to demonstrate its purpose. The opinion reaches its result by the broadest possible interpretation of the word “furnishes.” It cites no authority except a single Kansas case, hereafter referred to, the facts of which are clearly distinguishable from the present ones. It cites, only to ignore, a considerable line of cases decided under those statutes where the admeasurement of the enlargement of agency law is to be construed from the words “the consent of the owner . . . expressed or implied.” To refer to a single one of those cases, Smith v. Tompkins, 52 R. I., 434, 161 A., 221, the employer of a chauffeur, whose employment placed him in possession of motor vehicle and key, was not held to have impliedly consented to the operation of his motor vehicle when the chauffeur took friends for a ride. The case discloses that the defendant therein had expressly forbidden the chauffeur to use the vehicle except on defendant’s business or under instruction from defendant’s wife, and the jury verdict denying recovery to the plaintiff must have been based on factual finding either that implied consent was negatived or that no implied consent could *148be assumed. The formula of words is unimportant, since in the present cases it is clear on the record that the minor about whom the issue revolves clearly understood that this defendant had given him no authority to use the car for personal pleasure.

The decision can find no support in the case Shrout v. Rinker et al., cited in the majority opinion. There the accident litigated occurred on the very occasion when a minor was either furnished the family car or knowingly permitted to use it, to travel from home to a ball-game and return, the defense offered being that the return trip did not follow the exact course prescribed by the parent. Whether the case be considered to turn on the car having been furnished or merely that its use was knowingly permitted, the Court thought it necessary, or at least worth while, to mention not only its recognition that children often thought the longest way ’round the shortest way home, but that the purpose of the attempted limitation on the use of the car rested in time rather than course, because the car was wanted for family use immediately after the close of the ball-game.

I believe that proper construction of the statute would limit its application on the facts presented so that this defendant would be liable only if he might be held to have knowingly permitted the minor to operate the motor vehicle on the trip when the negligence occurred; that the evidence adduced in the cases would not justify a finding that he did so; that the evidence rulings, if assumed to be erroneous, were not prejudicial under such a construction of the statute; and that the mandate in each case should be

Exceptions overruled.