Cusick v. Feldpausch

• Citation: 243 N.W. 226,259 Mich. 349
• Decision Date: 23 June 1932
• Docket Number: No. 64.,64.
• Parties: CUSICK v. FELDPAUSCH et al.
• Court: Supreme Court of Michigan

259 Mich. 349

243 N.W. 226

CUSICK

v.FELDPAUSCH et al.

No. 64.

Supreme Court of Michigan.

June 23, 1932.

Appeal from Circuit Court, Kent County; William B. Brown, Judge.

Action by Mildred Cusick against Leo Feldpausch and another, copartners doing business under the name and style of Feldpausch Bros., and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Argued before the Entire Bench.

Rodgers & Dunn, of Grand Rapids, for appellants.

McAllister & McAllister, of Grand Rapids, for appellee.

CLARK, C. J.

On February 3, 1929, Leo Feldpausch, Jr., drove an automobile of the other defendants, copartners as Feldpausch Bros. He drove with their permission, but not for them. He had with him the plaintiff, gratuitous guest. The automobile skidded on ice, and turned over, and plaintiff was injured. She had verdict and judgment. Defendants have appealed.

Liability is asserted against the partners under section 29, Act No. 302, Public Acts of 1915. This section was amended by Act No. 19, Public Acts of 1929 (section 4648, Comp. Laws of 1929). The old section 29, providing of liability of the owner of a motor vehicle driven with his express or implied consent, was ‘amended to read as follows.’ The old section was carried into the new act with the added proviso: ‘That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’

This act went into effect March 27, 1929. This suit was commenced in November, 1929, and tried in May, 1931.

There being, at common law, no right of action against the partners, owners of the automobile, it is contended that the repeal of the former statute left plaintiff without right of action against them.

The rule that, where a former statute is reenacted into a new statute, it will be regarded as continuing, is not applicable here because of the amendment; there being in the case neither averment nor contention of gross negligence or willful and wanton misconduct.

A question is whether the act of 1929 is retrospective. It is wholly prospective in its language and structure. Moreover, when it became a law, plaintiff's right of action for damages to person and property under the former statute had accrued and was in her a vested right, which the new statute did not take away.

Of vested right, the following from Cooley's Constitutional Limitations (8th Ed.) vol. 2, p. 749: ‘* * * It would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws: it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.’ See, also, 6 R. C. L. p. 308.

In Lewis v. Railway Co., 220 Pa. 317, 69 A. 821, 823,18 L. R. A. (N. S.) 279,13 Ann. Cas. 1142, it is said: ‘All authorities agree that the repeal of a statute does not take away the plaintiff's cause of action under it for damages for an injury to person or property. They rest on the sound doctrine, expressed in Menges v. Dentler, 33 Pa. 495, 75 Am. Dec. 616, * * * that the law of the case at that time when it became complete is an inherent element in it; and, if changed or annulled, the law is annulled, justice denied, and the due course of law is violated.’

The above case is cited to the text of 25 R. C. L. p. 938: ‘The repeal of a statute does not take away a right of action for damages which have already accrued.’

The following from 36 Cyc. p. 1225: ‘The repeal of a statute does not operate to impair or otherwise affect rights that have been vested or accrued under the statute while in force; and this rule is applicable alike to rights acquired under contracts and to rights of action to recover damages for torts.’

And from Lewis' Sutherland Stat. Const. (2d Ed.) § 284: ‘A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right. It must be something more than a...