Kimber v. Eding

• Decision Date: 04 April 1933
• Docket Number: No. 112.,112.
• Citation: 247 N.W. 777,262 Mich. 670
• Parties: KIMBER v. EDING et al.
• Court: Michigan Supreme Court

262 Mich. 670

247 N.W. 777

KIMBER

v.EDING et al.

No. 112.

Supreme Court of Michigan.

April 4, 1933.

Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.

Action by Dorothy Kimber, by Jennie Kimber, her next friend, against Jacob Eding and another. A verdict was returned against both defendants. On motion, a judgment non obstante was entered in favor of the defendant Jacob Eding, and the plaintiff appeals.

Judgment affirmed.

Argued before the Entire Bench.Leo W. Hoffman and Clare E. Hoffman, both of Allegan (Carl E. Hoffman, of Holland, of counsel), for appellant.

Diekema, Cross & Ten Cate, of Holland, for appellee Eding.

FEDA, Justice.

Plaintiff had verdict against both defendants for injuries caused by negligent operation of an automobile by Brower. On motion, judgment non obstante was entered for Eding.

Eding conducts a Ford sales agency at Hamilton. Harry Vredeveld, a mail carrier, had an agreement with Eding by which, upon payment of $100 and purchasing a tire, he traded his car for a new one about every six months. December 4th, Vredeveld took his car to Eding's garage, left it, and received a new car in exchange. Eding was not present when he came in. Some one about the garage procured the license plates for the new car at Allegan. Vredeveld said Eding came in and gave him the plates. Vredeveld did not pay the $100 until some days later, and did not assign the certificate of title to his old car to Eding until December 16th. The evening of the 4th, Brower took the car and injured plaintiff. He was not upon any business of Eding at the time. Plaintiff's parents testified that Eding said he owned the car and had permitted Brower to take it.

The question is whether Eding was ‘owner’ of the car driven by Brower before he received assignment of the certificate of title, C. L. 1929, § 4660 (Act No. 46, P. A. 1921), as amended, Act No. 65, P. A. 1931, and therefore is liable for Brower's negligence under C. L. 1929, § 4648 (Act No. 302, P. A. 1915, as amended).

Under section 3 of the 1921 act (C. L. 1929, § 4660), this court consistently has held, in cases involving actions for negligent injuries as well as controversies between the immediate parties to a sale, that title to a motor vehicle passes from seller to purchaser when the former delivers to the latter assignment of certificate of title, and not before. Endres v. Mara-Rickenbacker Co., 243 Mich. 5, 219 N. W. 719;Ittleson v. Hagan, 245 Mich. 56, 222 N. W. 145;Bos v. Holleman De Weerd Auto Co., 246 Mich. 578, 225 N. W. 1;Kelly v. Lofts, 253 Mich. 552, 235 N. W. 250;Scarborough v. Detroit Operating Co., 256 Mich. 173, 239 N. W. 344;Kruse v. Carey, 259 Mich. 157, 242 N. W. 873;Schomberg v. Bayly, 259 Mich. 135, 242 N. W. 866.

Plaintiff contends these cases are not applicable because their effect would be that the failure to observe section 4660 in making the sale would deprive plaintiff of rights of action against Eding, reserved or granted by section 4648.

Section 4648 provides: ‘Nothing herein contained shall be construed to abridge the right’ of action for damages resulting from violation of the act. It does not restrict other legislation. It reserves to an injured person his common-law remedies for negligence. It grants a new right of action against the ‘owner’ of a motor vehicle driven with his consent, regardless of such common-law elements as personal negligence or the relation of master and servant. The act does not set up the conditions of vesting of title on sale. Transfer of ownership from seller to purchaser was governed by the general law of sales.

Section 3 of the 1921 act (C. L. 1929, § 4660) changes the law of sales as applied to motor vehicles. It has no effect upon the common-law or statutory rights of action reserved or granted by section 4648, except as it declares the conditions of ownership and transfer of title on sale. Consequently, there is no conflict between section 4648 and section 4660 and the decisions thereunder. Section 4648 confers a...