CASE, for negligence. Trial by jury and verdict for the plaintiff. In addition to the facts stated in the opinion upon the prior transfer of this case (Bowdler v. Company, 88 N.H. 331), it appeared at the trial which followed that transfer that on the night of the accident the plaintiff had the right to control the manner in which the driver of her car operated it and to direct him how to drive had she chosen to do so. It also now definitely appears that when the plaintiff allowed Heartz to drive she understood and believed that he had a license to operate motor vehicles upon the ways of this state. The defendants' bill of exceptions, which was allowed by Johnston, J., recites that "At the close of all the evidence the defendants' motion for a directed verdict in their favor was denied subject to exception.

In MacDonald v. Appleyard, 1947, 94 N.H. 362, 364, 53 A.2d 434, 436, where the issue arose out of a failure to comply with a statute requiring that flares be placed ahead and behind a truck parked on a highway, the court said: "While the statute was not intended to establish absolute liability regardless of fault (Bowdler v. St. Johnsbury Trucking Co., 88 N.H. 331, 333, 189 A. 353, and cases cited), the plaintiff's burden of going forward was sustained by a showing that the statute was not complied with. Proof of the failure to place flares when a vehicle is not 'stopping momentarily' establishes violation of the statute, even though it is obvious that a reasonable time after stopping is a prerequisite to compliance.

Chief Justice Doe noted that "the criminal law does not generally accomplish its object by a conclusive presumption of mental guilt contrary to the fact" (Lyons v. Child, 61 N.H. 72, 73 (1881)) and we think it would be contrary to our law of murder to so interpret this statute. See Bowdler v. Company, 88 N.H. 331, 189 A. 353 (1937). The indictments here fail to allege that the defendant killed Mary Ellen Cann with malice aforethought as provided by RSA 601:6 for all murder indictments.

The allowed rate equated to a return of 10.90% on the actual equity. Giving to the words in part (1) of the formula their usual and common meaning (Bowdler v. Company, 88 N.H. 331, 333) leads to the conclusion that equity earnings are to be capitalized at the current rate of return allowed by the Public Utilities Commission, or in this case 5.65%. The company points out that if the words in the formula are interpreted to mean that the earnings attributable to the common stock are to be capitalized at the over-all rate of return allowed by the regulatory body in the last rate proceeding (5.65%) instead of at the rate of about 10% which plaintiff was allowed to earn on its equity, the effect is to produce a capitalized value of almost twice as much as would be produced if 10% were used.

] Similarly, in State v. Goonan, supra, the New Hampshire Supreme Court sustained the exclusion of testimony that the defendant mistakenly believed that he had obtained a default divorce; in the course of his opinion Justice Marble said [ 89 N.H. 528, 3 A.2d 105]: "In this jurisdiction the question whether criminal intent is a necessary element of a statutory offense is one of statutory construction ( Coutremarsh v. Metcalf, 87 N.H. 127, 175 A. 173; Bowdler v. [ St. Johnsbury] Trucking Co., 88 N.H. 331, 332, 189 A. 353), and the enumeration in Section 6 of the defences to which a person charged with the crime of bigamy is entitled would, on the general principles governing such construction, exclude all others. Howe v. Howe, 87 N.H. 338, 340, 341, 179 A. 362. See, also, People v. Spoor, 235 Ill. 230, 232, 85 N.E. 207, 126 Am. St. Rep. 197, 14 Ann. Cas. 638; State v. Hendrickson, 67 Utah 15, 23, 245 P. 375, 57 A.L.R. 786. In short, had it been the intention of the Legislature to include in the list of exceptions any person entertaining a reasonable belief that he has been legally divorced, it is unlikely, in view of `the public concern for the stability of marriage' ( Heath v.Heath, 85 N.H. 419, 428, 159 A. 418, 422), that such legislative purpose would have been left to implication.

In the case before us the plaintiff's declaration alleges negligence, and he recognizes that "probably the absolute liability doctrine is not the law of New Hampshire." Brown v. Collins, 53 N.H. 442; Bowdler v. Company, 88 N.H. 331, 333. See Smith, Liability for Damage to Land by Blasting, 33 Harv. L. Rev. 542, 667.

R. L., c. 90, pt. 20, subs. 4, as inserted by Laws 1945, c. 188. As early as 1881 it was decided that violation of the law of the road imposed no liability for "constructive fault" (Lyons v. Child, 61 N.H. 72, 75), and in Brember v. Jones, 67 N.H. 374, 376, it was laid down that such violation "would not necessarily and as matter of law defeat a recovery." See also, Bowdler v. Company, 88 N.H. 331, 333; Vassillion v. Sullivan, 94 N.H. 97, 101. The defendant's request for an instruction that the plaintiff was "legally [liable] for all damages resulting from this accident and . . . estopped from recovering" was properly denied.

We do not subscribe to the theory that the liability of the Treasurer is that of an insurer. See Brown v. Collins, 53 N.H. 442; Bowdler v. Company, 88 N.H. 331, 333; Cf. Bird v. McGoldrick, 277 N.Y. 492. "We are not to be understood as holding that a public treasurer, who disburses public money on warrants, . . . fair upon their face, in good faith, and without knowledge of the facts showing the illegality of the claim upon which the . . . warrant purports to have been issued, may be made liable for a return of the money upon a showing that the claim was not in fact a legal charge against the municipality he represents. In such a case he would undoubtedly be protected.

The defendants contend that submission of the issue was not warranted because there was no evidence that the absence of flares was due to fault or negligence on their part. They urge that the statute implies that a driver shall have a reasonable time in which to place the flares, and that the evidence did not warrant a finding that such a period elapsed before the accident occurred. While the statute was not intended to establish absolute liability regardless of fault (Bowdler v. Company, 88 N.H. 331, 333, and cases cited), the plaintiffs' burden of going forward was sustained by a showing that the statute was not complied with. Proof of the failure to place flares when a vehicle is not "stopping momentarily" establishes violation of the statute, even though it is obvious that a reasonable time after stopping is a prerequisite to compliance. Legal fault is established by proof of causal violation of such a statute (see Frost v. Stevens, 88 N.H. 164, 167), unless the offender can show that he is in fact without fault or responsibility therefor.

As we have perhaps indicated above, the assumption is without foundation and the desired result is impossible. The attitude of the court toward the Johnson case was clearly indicated in Vidal v. Errol, 86 N.H. 1; the two opinions in Bowdler v. Company, 88 N.H. 331 and 90 N.H. 68; and Cutler v. Young, 90 N.H. 203. In the second Bowdler case supra, it was held that "the Johnson case goes to the verge of the law," and in Cutler v. Young, supra, it was specifically stated that "we are not disposed to give it further extension."