Rogers v. Kuhnreich

• Decision Date: 03 June 1929
• Docket Number: No. 15.,15.
• Citation: 225 N.W. 622,247 Mich. 204
• Parties: ROGERS v. KUHNREICH et al.
• Court: Michigan Supreme Court

247 Mich. 204

225 N.W. 622

ROGERS

v.KUHNREICH et al.

No. 15.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Livingston County; Joseph H. Collins, Judge.

Action by Marilda Rogers against Henry Kuhnreich and another. Judgment for plaintiff, and defendant Kuhnreich brings error. Reversed, and new trial granted.

Argued before the Entire Bench.Stevenson, Butzel, Eaman & Long, of Detroit (Charles A. Wagner, of Detroit, of counsel), for appellant.

Birt E. Hulburt, of Detroit, and Francis J. Shields, of Howell (Don W. Van Winkle, of Howell, of counsel), for appellee.

FELLOWS, J.

Defendant and his wife, although estranged and no longer sustaining marital relations, occupied together an apartment in Detroit. Defendant did not take his meals there. He and his brother run a tire business on Michigan avenue and a real estate office in the Majestic building. They had a nephew named Theodore Moller in Vienna, Austria. By correspondence conducted by the brother, it was arranged that Theodore, who could speak English, should come over and work in the tire shop. He came and was paid $25 a week; he was around 20 or 21 years old. He lived at the apartment of defendant; for a time he took some of his meals there, but later only had a room. When he took some of his meals there he paid defendant's wife $10 a week, and, when he only had the room and took his meals elsewhere, he paid her $5 a week.

Defendant owned and had for his personal use a Rickenbacker sedan. He left for Europe January 2, 1924. He did not return until April. Before leaving he canceled his insurance on the automobile, took it out of live storage and placed it in dead storage. No one had any authority to use it during his absence. It was taken out by some one without authority from the garage owner, or, so far as the record discloses, from any one else, in February and was reported as stolen to the police department. While being driven on the Packard road between Ann Arbor and Detroit on February 10, it collided with a car in which plaintiff was riding, and she was injured. We very much doubt if the facts we are about to relate are established by competent evidence, but, for the purposes of the case, we will assume they are. The car was being driven by Theodore Moller, who was accompanied by defendant's wife and some of her relatives, and was negligently operated by him.

Plaintiff's recovery was predicated on section 4825, C. L. 1915, which was in force when the accident occurred, but which has been superseded by Act 56, Public Acts 1927. The validity of the section was sustained in Bowerman v. Sheehan, 242 Mich. 95, 210 N. W. 69, and we are here concerned only in its construction. That portion of the section which is here involved reads as follows: ‘In the event said motor vehicle is being driven at the time of said injury by the father, mother, brother, sister, son, daughter, or other immediate members of the family of the owner of said motor vehicle, then it shall be conclusively presumed that said motor vehicle is being driven by the consent or with the knowledge of such owner.’

The trial judge held as matter of law that young Moller was an immediate member of defendant's family and defendant was liable for the young man's negligence in operating the car on the occasion in question and under the circumstances here disclosed.

The word ‘family’ is one of great flexibility. In Carmichael v. N. W. Mut. Ben. Ass'n, 51 Mich. 494, 16 N. W. 871, it was said by Chief Justice Graves speaking for the court:

‘Now this word ‘family,’ contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers.'

‘We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice.’

The word as used under different circumstances has received different constructions. When used in life insurance policies and in homestead and other exemption statutes, it has been given a broad construction, and, in so doing, the intent, either of the parties to the contract or the Legislature, has been carried out and no injustice has been done. Here we have a statute in derogation of the common law, and under one well-recognized rule of construction should be strictly construed. It also enumerates relationships followed by other cases enumerated in general terms, and under another well-recognized rule of construction such other cases must be understood to be cases of the same general character, sort, or kind with those named. Jacobs v. E. Bement's Sons, 161 Mich. 415, 126 N. W. 1043, and cases there cited. To hold that the statute should be construed to be applicable to cases of the character of the one before us manifestly would work an injustice. Webster includes boarders and lodgers as members of the family, but such definition has been negatived so far as this court is concerned by what was said in our recent case of Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252, 222 N. W. 180. Other courts have definitely declined to include them as members of the family. Strawn v. Strawn, 53 Ill. 263; Weed v. Dayton, 40 Conn. 293; Fowler v. Mosher, 85 Va. 421, 7 S. E. 542;Whitehead v. Nickelson, 48 Tex. 517;Golden Cross v. Donaghey, 75 N. H. 197, 72 A. 419. In Sheehy v. Scott, 128 Iowa, 551, 104 N. W. 1139, 42 L. R. A. (N. S.) 365, it was said by Mr. Justice Ladd, speaking for the court: “Family' has been defined as a collective body of persons who live in one house under one head or manager. Tyson v. Reynolds, 52 Iowa, 431 ; Parsons v. Livingston, 11 Iowa, 104 . But this is not accurate, for strangers might thus band themselves together and live under the direction of a leader. To constitute...