Miller v. Bd. of Cnty. Rd. Com'rs of Manistee Cnty.

• Decision Date: 21 May 1941
• Docket Number: No. 151,January Term, 1941.,151
• Citation: 298 N.W. 105,297 Mich. 487
• Parties: MILLER v. BOARD OF COUNTY ROAD COM'RS OF MANISTEE COUNTY et al.
• Court: Michigan Supreme Court

297 Mich. 487

298 N.W. 105

MILLER

v.BOARD OF COUNTY ROAD COM'RS OF MANISTEE COUNTY et al.

No. 151, January Term, 1941.

Supreme Court of Michigan.

May 21, 1941.

Action by Arthur Miller, administrator of the estate of Harry Ulrich, deceased, against the Board of County Road Commissioners of the county of Manistee, and others, for death of deceased as the result of the negligent operation of a truck owned by the board. Judgment was taken by default against William Potter and the estate of Clyde Jones, deceased. The action was dismissed as to I. H. Gingrich & Sons, Inc. From a judgment in favor of the remaining defendants, notwithstanding a verdict for plaintiff, plaintiff appeals.

Reversed.

BOYLES, J., dissenting.Appeal from Circuit Court, Manistee County; Max E. Neal, judge.

Argued before the Entire Bench.

Campbell & Campbell, of Manistee, for appellant.

Rupert B. Stephens, Pros. Atty., of Manistee (Henry Miltner and Charles H. Miltner, both of Cadillac, of counsel), for Manistee County.

Henry Miltner, of Cadillac (A. A. Keiser, of Ludington, of counsel), for Board of County Road Com'rs of Manistee County.

McALLISTER, Justice.

I am of the opinion that the verdict of the jury should be sustained.

The board of county road commissioners was the owner of the truck. It permitted its employee to drive the vehicle. Plaintiff's decedent was killed as a result of such employee's negligence. By statute it is provided that the owner of a motor vehicle is liable for any injury caused by negligent operation thereof by his agent. Section 4648, 1 Comp.Laws 1929 (Stat.Ann. § 9.1446), provides: ‘Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law require. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.’

Section 4632, 1 Comp.Laws 1929 (Stat.Ann. § 9.1431), provides:

‘(a) The term ‘motor vehicle’ as used in this act shall include all vehicles impelled on the public highways of this state, by mechanical power except traction engines, road rollers, such vehicles as run only on rails or tracks, fire trucks and apparatus owned by any person, firm or private corporation and used for fire protection, and motor vehicles owned and operated by the federal government. Motor vehicles owned and operated by the state of Michigan, or any municipality thereof, shall be designated by proper signs showing in which department or institution of said state or municipality such motor vehicles are employed, and such department, institution or municipality shall obtain license plates annually from the secretary of state upon applications furnished by him. * * *

‘(c) The term ‘owner’ shall include any person, firm, association or corporation owning or renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty (30) days.'

The board of county road commissioners is a public corporation. 1 Comp.Laws 1929, § 3984 (Stat.Ann. § 9.109). As owner of the motor vehicle, defendant is liable for damages resulting from the negligence of its employee.

It is contended that the board is not liable under the general rule that, at common law, a municipal corporation is immune from claims for damages resulting from the performance of governmental functions. However, in this case, defendant is liable under the statute providing that an owner is liable for negligent operation of a motor vehicle by agent or servant. In addition, 1 Comp.Laws 1929, § 4724 (Stat.Ann. § 9.1592), provides: ‘The provisions of this act applicable to the drivers of vehicles upon the highways, shall apply to the drivers of all vehicles owned or operated by this state or any county, city, town, district or any other political subdivision of the state subject to such specific exceptions as are set forth in this act. The provisions of this act shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.’

By providing that the act is applicable to vehicles owned or operated by the State, county, city, town, or district of any political subdivision of the State, when traveling to or from highway work, the liability of defendant is definitely fixed.

It is said that, when the legislature intends to change a common-law rule of law, it must do so in terms of certainty, and that general statutes are not to be construed to include municipalities engaged in the performance of governmental functions. However, this rule is subject to an important exception. In 59 C.J. p. 1103-04, it is said: ‘The State and its agencies are not to be considered as within the purview of a statute, however general and comprehensive the language of such act may be, unless an intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication. This general doctrine applies with especial force to statutes by which prerogatives, rights, titles, or interests of the State would be divested or diminished; or liabilities imposed upon it; but the State may have the benefit of general laws, and the general rule has been declared not to apply to statutes made for the public good, the advancement of religion and justice, and the prevention of injury and wrong.’

In United States v. Knight, 39 U.S. 301, 315, 14 Pet. 301, 10 L.Ed. 465, where the question before the court was whether or not a general statute was applicable where the government was a party, it was argued by the government that the United States are never to be considered as embraced in any statute, unless expressly named. In refusing to follow such contention, the court said: ‘It is obvious, that the language is sufficiently comprehensive to embrace them [United States]; unless they are to be excluded, by a construction founded upon the principle just stated. In Bac.Abr., tit. Prerogative, 3-5, it is said, that the general rule is, that where an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the king shall be bound by such act, though not particularly named therein. But where a statute is general, and thereby any prerogative, right, title or interest is divested or taken from the king, in such case he shall not be bound; unless the statute is made by express words, to extend to him. It is a settled principle, that the king is not, ordinarily, barred, unless named by an act of limitations. The principle expressed in the maxim, nullum tempus occurrit regi, rests upon the ground, that no laches shall be imputed to him. The doctrine, that the government should not, unless named, be bound by an act of limitations, is in accordance with that just cited from Bacon, because if bound, it would be barred of a right; and in all such cases, is not to be construed to be embraced, unless named, or what would be equivalent, unless the language is such as to show clearly that such was the intent of the act. The same principle has been decided in New York, Massachusetts, Pennsylvania and, no doubt, in other states; and all upon the same ground. Not upon any notion of prerogative; for even in England, where the doctrine is stated under the head of prerogative, this, in effect, means nothing more than that this exception is made from the statute, for the public good; and the king represents the nation. The real ground is a great principle of public policy, which belongs alike to all governments, that the public interest should not be prejudiced by the negligence of public officers, to whose care they are confided. Without undertaking to lay down any general rule as applicable to cases of this kind, we feel satisfied, that when, as in this case, a statute which proposes only to regulate the mode of proceeding in suits, does not divest the public of any right, does not violate any principle of public policy; but on the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution, the privilege of jail-limits; we shall best carry into effect the legislative intent, by construing the executions at the suit of the United States, to be embraced within the act.’

In an old English case, the Magdalen College case, 11 Coke 66b, 77 Reprint 1234, the question to be decided was whether the king was included within the general words of an act applicable ‘to any person or ‘persons, body politic or corporate.” The act had for its object the prevention of long leases by colleges. It was held that, in view of the fact that such leases, under the circumstances envisaged in the statute, constituted a recognized evil:

The King shall not be exempted by construction of law out of the general words of Acts made to suppress wrong, because he is the fountain of justice and common right. * * *

‘And it was resolved, that the law will never make an interpretation to advance a private and to destroy the public, but always to advance the public, and to prevent every private, which is odious in law in such cases. * * * The office of Judges is always to make such construction as to suppress the mischief, and advance the remedy; and to suppress subtle inventions and evasions for the continuance of...