Mittelstadt v. Kelly

Ostrander, C. J. (after stating the facts). Plaintiff, referring to Circuit Court Rule No. 66, section 5, and Supreme Court Rule No. 8, raises the point that because assignments of error did not accompany the bill of exceptions when it was settled, and were not returned here with the exceptions, there are no alleged errors to be reviewed and the judgment should be affirmed. Apparently, the practice was irregular; but the bill was settled “by consent” and it is possible that the assignments of error were in fact before the court when it was settled. Nor was a motion made here to dismiss, but the point is made at the hearing. Seasonably made, it is possible that upon a dismissal a new writ of error could have been sued out and the irregularity cured. Under the particular circumstances, we are not disposed to now dismiss or to affirm without consideration of the questions presented. In refusing a new trial, the learned trial judge said: “I am satisfied that the great weight of authority is to the effect that an alien enemy residing in his own country cannot maintain an action in this forum, but that an alien residing here and conducting himself properly under the law of our land has the right to the protection of the law and may assert that right in our courts.” In this conclusion we agree. Clarke v. Morey, 10 Johns. (N. Y.) 68; Seymour v. Bailey, 66 Ill. 301; Hutchinson v. Brock, 11 Mass. 122; Rothbarth v. Herzfeld, 179 App. Div. 865; Arndt-Ober v. Metropolitan Opera Co., 169 N. Y. Supp. 944. See, also, Viola v. Mackenzie, Mann & Co., 24 Dom. Law Rep. 208. The declaration refers to the law of 1909, a law which had been repealed, when it should have referred to the generally similar act of 1915. It is said the-court was in error in submitting the case to the jury [529] as though, the act of 1915 had been declared upon. On the motion for a new trial, the point was first raised and in denying the motion the court said, aptly we think: “No such question was raised at the trial. If it had been, it would have been an abuse of discretion on the part of the court if an amendment were not allowed, if claimed by the plaintiff. While as I remember it the court’s attention was not challenged to the declaration, I do not see but that it gave the defendant reasonable notice of the plaintiff’s claim.” In our view of the responsibility of defendant George Kelly, it is not necessary to determine whether anything in section 29 of the act of 1915 offends the Constitution of the State. The defendant George Kelly was held to be liable for the consequences of the actions of his son in driving the car, because he was a part owner, joint owner, of the car. It is, in the first place, doubtful if there is any testimony to support the proposition that the father and son were joint owners. It appears that the son bargained for the car with the former owner, and agreed with him about the purchase price, which was $1,200. It was a part of the bargain that the son should pay, and he did pay, $500 of the purchase price, and that the vendor should take for the balance of $700 a half acre parcel of land, the title of which stood in the father, but which the father had promised before then to give to his son. The money was paid and the car delivered, but the land, part of a larger parcel, had not then been surveyed. Later it was. surveyed and the father, defendant George Kelly, conveyed it to the vendor instead of conveying it to his son, to be by him conveyed to the vendor. The jury found, however, evidently because of some statements made by the father, that he had paid a part of the [530] purchase price and was a part owner. The license for the car was obtained by the son and is in his name. Repairs to the car and expenses for maintaining it were paid for by the son. The father never drove it and rarely rode in it. No one but the son ever drove it. But assuming that George Kelly was part owner of the car, he is not liable to the plaintiff in this action. The statute, Act No. 302, Pub. Acts 1915, is a part of chapter 89 of the Compiled Laws of 1915, entitled “Motor Vehicles.” Section 29 of the act (section 4825) reads: “Civil actions. Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employee or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them. 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 in violation of the provisions of the statutes of this State or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, That the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner. 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.” It is said by the plaintiff, appellee, that this section makes .the owner liable if the car is driven with his knowledge and the defendant does not contend that this provision is unconstitutional. It is further argued [531] that if George Kelly was a part owner he would be liable under this section— “without any reference whatever to the question of his relationship to Ira Kelly, the other defendant, for the reason that George Kelly, as above stated, had constant knowledge that his son, Ira Kelly, was driving the car. This being true, the remaining portion of the section wherein it is provided that the owner’s consent shall be conclusively presumed if the car is being driven by the son, as in this case, would in no wise affect the interests of the defendant, George Kelly, for the judgment against him was not predicated upon that provision of the act.” It is a lawful thing for two persons to buy and own an automobile. Either owner has the right to use the car, the consent of the other being implied if there is no express agreement respecting the use to be made of it. Either owner could .use it by driving it himself, or he could have an agent, employee or servant to drive it. It is evident that the legislature intended that the owner of a car .should be liable for the consequences of his own negligent driving and for the negligent driving of those whom he permits to drive it. In the main, the statute declares the rule of the common law and there lies at the foundation of the statute and of the common law rule the fact that the owner of a car may choose his agents and employees and may control possession of the vehicle. It is not evident that the legislature intended to make each part owner of a car liable for the consequences of the negligent operation of it by a co-owner or his agent or employee. In the first place, the foundation for such a rule does not exist, since a part owner of an automobile may not choose the agents or employees of the other owner nor control possession of the car by the co-owner. In the second place, the language of the law, fairly interpreted, does not evidence a purpose to visit upon an owner the consequences of neg [532] ligence committed by persons whose custody and possession of the car he may not and cannot control. In the third place, it may be said that it is at least doubtful whether the legislative power extends to visiting upon the citizen consequences of tortious actions which he cannot prevent or control. In the case at bar, an owner had possession of and was operating the car. He is liable for the consequences of his own negligent driving, and as to him we find no reason for disturbing the judgment. As to the other owner, we are of opinion that the judgment should be reversed. Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.