Mitchell v. Van Keulen & Winchester Lumber Co.

175 Mich. 75 | Mich. | 1913

Ostrander, J.

Plaintiff’s intestate was killed by an automobile owned by the defendant corporation, driven by a daughter of an officer of the corporation. It does not appear that she was a servant of the defendant, nor using the machine upon its business. The action was brought against the defendant under the provisions of subdivision 3 of section 10 of Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §2496, subd. 3).

The trial court directed a verdict for the defendant upon the testimony produced by the plaintiff, upon the ground (1) that no negligence of the driver of the automobile had been made out; (2) that there was evidence of contributory negligence on the part of plaintiff’s intestate. Upon this order and direction the single assignment of error is based.

One ground of the motion-for a peremptory instruction was that the word “owner” in the provision of the statute relied upon by plaintiff must be construed to mean, not the real owner of the car, but the person in charge thereof at the time the injury complained about is done, and in this court it is a contention of appellant that, unless so construed, the provision is unconstitutional and void.

In view of the recent decision of this court (Daugherty v. Thomas, 174 Mich. 371 [140 N. W. 615]), we do not consider the reasons presented by appellant for a reversal of the judgment. We do not understand it to be claimed that the defendant is liable in this action, unless made liable by the statute.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.