Defendant owned a four-passenger automobile, which, on the evening of August 10, 1910, at about 7 :45 o’clоck, was being driven by his son, a boy 15 years of age. Two of his young- associates were riding with him. He drove west, preceded by another motor car, called in the record the Buick, driven by a Mr. Donahue, and both cars were preceded for some way by an omnibus or carryall. The Buick ear turnеd out, passed the omnibus, and drove into a street opening onto Dyckman avenue on the nоrth. Defendant’s machine, driven by his son, also turned out to pass the omnibus, and, having done so, swung into the north sidе of the street again, when plaintiff’s decedent, who was riding west on Dyckman avenue upon a bicycle, came into collision with the car, from the effects of which he never regained сonsciousness, and died in less than an hour. Claiming that the negligent operation and management оf the motor car was the cause of his death, his widow, as administratrix of his estate, sued the owner оf the motor car and recovered a substantial judgment.
At least one count of the declaration appears to be framed upon the theory that the person driving the car was servant and agent of the owner, who is responsible as principal or as employer for thе damages resulting from the negligent operation of the car. Other counts of the declarаtion are framed upon the statute (Act No. 318, Pub. Acts 1909, 2 How. Stat. [2d Ed.] § 2487 et seq.). Defendant requested the court to сharge the jury as follows:
*592 “ Under the law of the State the defendant cannot be charged with the negligence of any person driving the automobile, to wit, Carlos Abell, at the time of the collision, аnd therefore your verdict should be for the defendant. * * * It appears from the undisputed evidence in this case that on the evening in question Carlos Abell was using the automobile for his own purposе, his own pleasure, and on his own time, and that he was the operator of the machine, and thе action should therefore have been brought against him, and your verdict should be for the defendant because the evidence shows that Carlos Abell was not the agent, employé, or servant оf the defendant on this occasion, but a mere licensee; therefore the statute doеs not apply to the facts in this case, and under the law of the State the defendant has not been shown to have been guilty of any negligence, and you are therefore directed to return a verdict for the defendant.”
The statute (Act No. 818, Pub. Acts 1909) is entitled “An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles.” Subdivision 3 of section 10 (2 How. Staf. [2d Ed.] § 2496) of the act reads:
“Liability of Owners. — The owner of a motor vehicle shall be liable for any injury occasionеd by the negligent operation by any person of such motor vehicle, whether such negligence consists in violations of the provision of a statute of this State or in the failure to observe suсh ordinary care in such operation as the rules of the common law require; but such owner shаll not be so liable in case such motor vehicle shall have been stolen.”
Act No. 33 of the sаme session (2 How. Stat. [2d Ed.] § 2506) provides for the punishment of persons who without intent to steal the same usа a motor vehicle without authority, including employés of the owner and others who have chargе of the vehicle. The point that this provision of the statute if it is construed as applicablе to the facts disclosed is not constitutional, but is invalid because imposing upon the citizen a liability for damages occasioned wholly by the negligent conduct of another, does
We do not find in the record testimony tending to establish the common-law liability of defendant, nor any affirmative testimony uрon the subject of the authority of the son to use the car. It is to be inferred that the son used the сar by permission of his father, the owner, but for his own pleasure. We have, since the case at bar was tried, distinctly held that the provision of the act of 1909 above set out is void. Daugherty v. Thomas, ante, 371 (