Daugherty v. Thomas

• Decision Date: 20 March 1913
• Citation: 174 Mich. 371,140 N.W. 615
• Parties: DAUGHERTY v. THOMAS et al.
• Court: Michigan Supreme Court

174 Mich. 371

140 N.W. 615

DAUGHERTY

v.THOMAS et al.

Supreme Court of Michigan.

March 20, 1913.

Appeal from Superior Court of Grand Rapids; William J. Stuart, Judge.

Action by Nina L. Daughterty against William S. Thomas and others. Judgment for plaintiff, and defendant Thomas appeals on a case-made. Reversed, and new trial granted.

Argued before STEERE, C. J., and MOORE McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

Colin P. Campbell, of Grand Rapids, for appellant Thomas.

Smedley, Linsey & Lillie, of Grand Rapids, for appellee.

STONE, J.

This is an action on the case to recover damages against the appellant and other defendants for injuries sustained by the plaintiff, who was struck and injured, on one of the streets of Grand Rapids, by an automobile, the property of the defendant William S. Thomas. It appears undisputed that prior to the 4th day of April, 1910, the defendant William S. Thomas was the owner of an automobile; and the defendants James E. Austin and Walter S. Austin were the proprietors and owners of an automobile factory. The automobile in question had been, by the defendant William S. Thomas, left in the shop of the Austins for repairs. The defendants Claude H. Gress and Albert G. Williams worked in this shop for the defendants Austin.

It appears that on the 4th day of April 1910, defendant Gress took the machine out of the shop in order to test it and see whether or not it had been properly and sufficiently repaired. Defendant Williams accompanied defendant Gress. After they had gone several blocks, defendant Williams took the steering gear and the two defendants proceeded south on Lafayette street. On the south side of State street was a crossing or crosswalk across Lafayette street, on which crosswalk was the plaintiff. The machine, in passing across State street, got from under the control of defendants Gress and Williams. Both scrambled to get hold of the steering gear, forgot to release the transmission so as to stop the car, and so struck and injured the plaintiff.

There was no question in the case that defendants Gress and Williams were not employés of defendant Thomas, and there was no claim that said defendants Gress and Williams were employés of defendant Thomas. There was no question that the machine had been left in Austins' factory for repairs, and that the taking of it out for testing was entirely without defendant Thomas' knowledge or direction or consent, and that defendant Thomas was made a party to this suit solely because of section 10, subd. 3, Act 318, of the Laws of 1909. Verdict and judgment were for plaintiff against all of the defendants. Defendant Thomas has appealed.

The only question raised in the case is as to defendant Thomas' liability under that statute; and this question is raised by exceptions to the refusal of the court to direct a verdict in favor of defendant Thomas, and in the court's refusal to charge the jury that defendant Thomas was not liable, upon which exceptions error is duly assigned. The points discussed by counsel were: (1) As to the construction of said subdivision 3; and (2) if said subdivision is so construed as to include defendant Thomas, then as to its validity under the Constitution of Michigan, art. 2, § 16, and the fourteenth amendment to the federal Constitution. These provisions, although familiar, are inserted here. The portion of section 16, art. 2, of the Michigan Constitution here invoked, reads as follows: ‘No person shall * * * be deprived of life, liberty or property, without due process of law.’ That portion of the fourteenth amendment to the federal Constitution here invoked reads as follows: ‘Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’

[1] Subdivision 3 of section 10, Act 318 of the Public Acts of 1909, is as follows: ‘Liability of Owners.-The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation by any person of such motor vehicle, whether such negligence consists in violations of the provisions of a statute of this state or in the failure to observe such ordinary care in such operation as the rules of the common law require; but such owner shall not be so liable in case such motor vehicle shall have been stolen.’

1. It is the claim of appellant Thomas that the act in question does not intend by the term ‘owner’ the proprietor of the vehicle only, but intends by the term ‘owner’ the person who is mediately or immediately in charge thereof. In passing upon this question, it is necessary for us to examine the other parts of this act. Section 1 defines the term ‘owner’ as follows: ‘The term ‘owner’ shall also include any person, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.' Subdivision 1, § 2, of the act provides that every owner of a motor vehicle which shall be operated or driven upon the public highways of this state shall cause to be filed in the office of the Secretary of State a brief description of the motor vehicle to be registered, etc., and the name, residence, and business address of the owner of such motor vehicle, and the name of the county in which he resides. Subdivision 3, § 2, provides for the issue of a number plate to the owner, and that, in the event of the loss of the number plate, the owner of the registered motor vehicle may obtain a duplicate. Section 5 provides that the act shall not apply to a motor vehicle owned by a nonresident of the state, provided the owner thereof shall have complied with the provisions of the law of the state of his residence, etc.

We cannot agree with appellant that the Legislature meant by the word ‘owner’ to include a person who might be merely either mediately or immediately in possession of the vehicle. It was not the intent of the Legislature that any other than the real owner of the automobile should have the same registered as required by law, excepting any person, firm, etc., renting a motor vehicle, or having exclusive use thereof under a lease or otherwise for a period greater than 30 days.

Before the passage of this act, a person who caused an injury to another by negligent operation of an automobile upon a public highway became liable to the person so injured. If the word ‘owner’ only means the person mediately or immediately in control of the automobile, then no new rule of law was created by this statute, and the common-law rule would not be changed, and the injured person would under the act have no greater remedy than before. We hardly need quote authorities to the effect that the owner of property is one who has dominion over it, and who has the right to enjoy and do with it as he pleases, unless he be prevented by some contract or law which restrains his right. We are of the opinion that the term ‘owner,’ as used in this statute, means, as applied in this case, the defendant William S. Thomas.

2. This brings us to the consideration of the important question in this case, whether subdivision 3 of section 10 of the act under consideration is void as being a deprivation of property without due process of law, and of the equal protection of the laws within the fourteenth amendment to the federal Constitution, and the provisions of article 2, § 16, of the Constitution of this state. We are met at the threshold of this question with the claim of the plaintiff that the validity of this portion of the act in question has been sustained by this court in the case of Johnson v. Sergeant, 168 Mich. 444, 134 N. W. 468. That case was before this court upon demurrer to the declaration. In that suit there were two defendants, Louis Sergeant, the owner, and George Sergeant, the person in charge of and driving and operating the motor vehicle. The declaration contained the allegation that the said George Sergeant had not stolen said motor vehicle, nor had any other person stolen it. It is true that each of the four counts of the declaration in that case asserted the liability of the defendant Louis Sergeant under the provisions of the statute above quoted. It is, however, alleged in the fourth count of the declaration that the owner, Louis Sergeant, ‘did on the day aforesaid permit, allow, and place into the hands of said George Sergeant, and allowed said George Sergeant to run and operate, said motor vehicle along the public streets,’ etc. From aught that appeared in the declaration in that case, the machine was being operated at least by the permission, if not under the direction, of the owner. The precise question presented in this case was not there before the court, for it is developed and appears in the instant case, and is not disputed, that the machine was being used by the servants of defendants Austin, and without the permission, knowledge, or consent of the defendant Thomas.

In Johnson v. Sergeant, supra, the main discussion is confined to the question whether the title of the act is sufficiently broad to cover the provision in question; and it was held that, as the word ‘regulate’ was used in the title, it was broad enough to embrace this provision. It is true this court did use the following language: ‘The Legislature has gone a long way in this statute in fixing the liability of the owner, even though he may not be in fault. We do not think, however, it can be said to have exceeded its authority under the police power.’

Before the act of 1909 went into effect this court had passed upon the duty of the owners or drivers of automobiles in a number of cases.

In Hartley v. Miller, 165 Mich. 115, 130 N. W. 336,33 L. R. A. (N. S.) 81, the general proposition as to the responsibility at common law for a tort was stated in the language of Andrews, J., in King v. Railroad Co., 66 N. Y. 184, 23 Am. Rep. 37, as follows: ‘Where one person has sustained an...