text:
    LEITZ v. LABADIE ICE CO.
    1. Master'and Servant — Workmen’s Compensation Act — Common Labor — Definition.
    Common labor, as generally used and understood, signifies that kind of unskilled manual labor, with or without simple tools, which is commonly done by the masses of working people in lines of employment necessitating no special trade or previous training before engaging in them beyond what can be quickly learned and effectually performed by the laborer while employed at regular wage under direction of those in charge, as distinguished from that class of skilled and less common manual labor to perform which previous experience, apprenticeship, study, practice or manual training in some special calling, handicraft, or trade is required.
    2. Same — Common Labor — Total Disability — Test.
    That an employee, injured while working as a common laborer, is not able to do exactly the same particular kind of common labor, after his injury, as he was before, is not the test of total disability in proceedings for compensation under the workmen’s compensation act.
    Authorities discussing the question as to who are employees within the meaning of workmen’s compensation acts, in general, are collated in notes in L. R. A. 1916A, 115, 246; L. R. A. 1917D, 145; L. R. A. 1918F, 201.

      3. Same — Finding op Board Not Warranted.
    So where a common laborer was earning more wages, although at another kind of common labor, at the time of the hearing, than he was at the time he received his injury, an award by the industrial accident board was without justification, and will be set aside by this court on certiorari to review the same.
    4. Same — Jurisdiction op Board as to Future Conditions.
    As the future condition of plaintiff is uncertain, and no final order has been made by the board, it yet has jurisdiction, and the case will be remanded for such further action as the parties may apply for and future conditions may warrant.
    Certiorari to Industrial Accident Board.
    Submitted June 15, 1920.
    (Docket No. 14.)
    Decided September 30, 1920.
    Carl Leitz presented his claim for compensation against the Labadie Ice Company for injuries received in' defendant’s employ. From an order denying a petition for the discontinuance of payments under an award, defendant and the Standard Accident Insurance Company, insurer, bring certiorari.
    Reversed, and remanded.

      Keena, Lightner, Oxtoby & Hanley, for appellants.

      Thomas, Shields & Silsbee, for appellee.
   Steere, J.

Defendants by writ of certiorari seek review and reversal of an order of the State industrial accident board refusing their petition to be relieved from further weekly payments to plaintiff under a previous order of said board. The record discloses that plaintiff Leitz suffered an accidental injury on February 2, 1917, while in the defendant ice company’s employ and having been, by appropriate proceedings under the workmen’s compensation law, adjudged then totally disabled, was awarded $6.78 per week. This was paid him from February 2, 1917, until December 19,1919, at which time defendants asked release on the ground that his incapacity to earn wages had ceased, and he was in fact earning more money at manual labor than he received at the time of his accident.

When injured plaintiff was a young man about 20 years of age, working for the ice company as a common laborer at a wage of $3 per day of 10 hours. He had been in its employ 16 or 18 days and before that time worked as a farm hand. When the accident occurred he vias attending to an ice slide, or chute, switch where they were filling a couple of ice houses, his duties being to attend to and switch the slide from time to time so it would carry the ice as it came up “first to one ice house and then to another,” work which he said any person of average intelligence could learn to do in an hour. The blocks of ice coming up the slide were 22 inches square and 10 inches' thick, ( requiring, as he stated, a “fairly strong man” to handle the switch which he lifted up with his hand as occasion required. While he was on the ice slide running the switch the slide broke and. let him fall about 15 feet. He fell somewhat angling and ice fell upon him,' injuring his left hip so, severely that medical attendance was required. He was concededly laid up and totally incapacitated from labor for some time. The award then made of one-half his weekly wages as continuing compensation for total incapacity was paid by defendants for approximately 150 weeks when defendants asked relief on the ground that he was again able to earn,full wages. He is not shown to have engaged in any employment for over two years after his injury, but in July, 1919, he entered the employ of the Auto Body Company at Lansing, operating a punching machine at 42 cents an hour and was at the time of taking testimony in this proceeding, February, 1920, receiving 47cents per hour. At this work he was seated, operating the press with a pedal, using his right foot, the left leg being yet crippled so that he could not depend on it and had to use crutches, as he testified.

The entire finding of the industrial accident board in denying its petition is as follows:

“1. That the applicant is totally disabled in the employment in which he was engaged at the time of the accident.
“2. That this total disability existed at the time the testimony was submitted, February 20, 1920, and has been continuous since the date of the accident.
“3. That during the period of applicant’s total disability he shall be compensated in accordance with the terms of the award entered July 7, 1917.”

Following this finding the board

“ordered and adjudged that said petition should be and the same is hereby denied, and said applicant is entitled to receive and recover compensation at the rate of $6.78 per week from the date covered by the last payment * * * to continue as above provided during the period of applicant’s total disability. * * * That should applicant become but partially disabled at any time in the future on account of the accident he shall be entitled to receive one-half the difference between the average weekly wage he was earning at the time of the accident and the average weekly wage he is able to earn thereafter, all in accordance with the terms of the workmen’s compensation act.”

It will be noted that the findings are in their nature final conclusions of mixed law and fact upon the ultimate issue presented, and leave to conjecture upon what testimony in the record the order is based.

The sole question raised by defendants is whether under the undisputed testimony in this case plaintiff, who was. again able to earn more at manual labor than when injured, was totally incapacitated for work in the class of employment at which he was engaged at the time of the accident. Their contention is that his employment was the ordinary work of a common laborer, in the particulars of which the law makes no distinction or classification. His testimony shows that prior to his employment by the ice company he was a farm hand, and at the time of his injury was employed at common labor, helping to put up ice. Defendants further point out that it likewise appears he was at the time of the héaring also engaged in work essentially that of a common laborer, able to earn, and earning, in such employment more money than at the time of his injury; that, as he testified, laborers around the body company plant did “most anything,” some welding, soldering, cutting, and sometimes laboring men ran punch presses.

“Q. So that work which you are performing at the Auto Body Company is. operating a punch press?
“A. Yes, sir.
“Q. You claim that the running of a punch press is not a laborer’s work?
“A. I don’t know as it is a laborer’s work, most anybody can run it.
“Q. Most anybody can run a punch press that can run a slide?
“A. Yes.
“Q. It is more difficult than operating an ice slide?
“A. No.”

As to the condition of plaintiff’s leg, he testified that it was yet crippled, he could not put much weight upon it or walk without crutches, and was unable for any length of time to do work which required him to stand, saying: “It is the nerves that bother me,” for which reasons he would not be able to work in operating a switch at an ice slide, as he was doing at the time of the accident.

Dr. Randall, who examined him shortly before the hearing, testified that he- used an X-ray to examine plaintiff’s left hip and as far as that disclosed anything he found no deviation from normal; that his legs were of the same length and the left measured with the right as in a normal person; but when he attempted to have plaintiff do different exercises with his left foot he was unable to stand on the left leg more than a second or so at a time without support; that he could extend and reflex the leg but could not extend it outward; the function lacking in the leg being “adduction,” and from the examination it was his opinion plaintiff could not do the kind of work he was engaged in at the time of the injury, as he described it; that from the history of the case and his examination at “the present time” the leg was apparently making a fairly good recovery, saying: “The only thing he lacks is the forward extension of the leg.”

On what theory the accident board arrived at a determination from this record that plaintiff was totally incapacitated to earn wages in the employment of a common laborer, which is the test under the undisputed testimony in this case, we are not advised. Plaintiff’s own testimony shows that when injured he was working as a common laborer and such was the nature of his employment when his petition was filed and passed upon by the board. That he was not as a common laborer able to do exactly the same particular kind of common labor he was doing when injured is not the test of total disability, as. the board recognized and properly held in Miller v. Fair & Sons, 206 Mich. 360. In that case Miller was working in a foundry mixing and wheeling sand, etc., when injured in his hand and right arm, on March 23, 1916. Compensation at one-half his average weekly wages was agreed upon between the parties, approved by the board and paid until May 18, 1917. On his application that compensation be continued thereafter the board on March 16, 1918, held he was entitled at that time to compensation from May 18, 1917, less amount he had earned during that period, saying in its decision that:

“Running an elevator is in the judgment of the board common labor. * * * It appears to the board that the hand of the applicant is in quite bad condition and it is likely that the applicant will be either totally or partially disabled for some' considerable time to come. * * * It cannot be said to a certainty that he will be totally disabled nor that he will be only partially disabled, and therefore the order of the board should provide for either condition.”

In the opinion affirming the board’s decision, prepared by Justice Ostrander, it is said in part :

“The labor he was performing, shoveling and wheeling a barrow, required the use of both hands. He can and does perform labor which does not require the use of the right hand and arm. * * *
“The award must stand unless, as claimant contends, one who is a common laborer and is disabled while doing some particular labor requiring the use of both of his hands and arms is totally disabled if on account of an injury he cannot perform the same labor or labor which requires the use of both arms and hands but can perform other common labor. We are unable to make the required distinction, being of opinion that the work of one engaged in what is ordinarily described as common labor is an employment within the meaning of the act. The act does not classify persons employed at labor, but it does recognize that there are different kinds of employment. The act was intended to affect and apply to existing conditions, one of which, generally recognized, is that persons are employed as common laborers — that the employment of certain wage earners is, and is known as, common labor. A definition of common labor, exclusive and inclusive, is not easily formulated, but the common understanding is, for the purposes of this decision, illustrated in the testimony of the claimant.”

Miller there described the nature of his work when injured, as did plaintiff here. Whether he called it common labor or denied it was such would not change its character.

While, as suggested in that opinion, an exact definition of common labor, exclusive and inclusive, is not readily formulated, we think it may safely be said that, as generally used and understood, it signifies that kind of unskilled manual labor with or without simple tools, which is commonly done by the masses of working people in lines of employment necessitating no special trade or previous training before engaging in them beyond what can be quickly learned and effectually performed by the laborer while employed at regular wage under direction of those in charge; as distinguished from that class of skilled and less common manual labor to perform which previous experience, apprenticeship, study, practice or manual training in some special calling, handicraft or trade is required. Plaintiff’s employment as described by him did not fall within the latter class, either when he was injured or later. Affirming the reason of the board’s ruling in the Miller case this court held that while recognizing there are different kinds of employment within its meaning, the act does not classify persons employed at labor, and that what is ordinarily described or recognized as common labor is an employment. Had the board adhered to its previous ruling upon that proposition, which this court sustained, we fail to discover under the undisputed testimony in this case how the result shown in the order appealed fro could be logically reached.

Counsel for plaintiff cite and rely on Foley v. Railway, 190 Mich. 507, and Jameson v. Newhall Co., 200 Mich. 514, urging them as undistinguishable precedent in this case consistently followed by the board. As this court views the testimony in those cases it carried the controversies into the field of permissible issues of fact for the board whose findings the court is not authorized to review, beyond determining whether the record discloses any competent legal evidence, direct or inferential, to support facts necessarily found by the board as a basis for its conclusions of law.

In the Foley Case there were various contentions and entanglements which are not to the point here, beyond a possible shading of .permissible inference, but it appeared in that case plaintiff when injured was a motorman on defendant’s railway running an electrically propelled car in the city of Detroit, an employment of responsibility in the business of railroad transportation of passengers, presumably requiring training, skill and judgment beyond that of a common laborer. He had worked as a machinist’s helper in a railroad shop and had practical training in railroading as a fireman on a steam road. In the accident which befell him on July 22, 1913, he sustained a compound fracture of the left leg which confined him in the hospital until February 17, 1914. The surgeon in charge testified that under “usual circumstances” the injury would “undoubtedly have caused him to lose his leg by amputation,” and when discharged neither perfect union of the bone nor normal circulation were restored or established in it. There was testimony that at the time of hearing the injured limb was shortened three-quarters of an inch with a 75 per cent, loss of normal use and strength and he was totally incapacitated for work as a motorman. Shortly after the accident an agreement under the statute for weekly compensation during total disability was approved by the board. After he left the hospital plaintiff was given employment by defendant as a watchman in one of its car bams and an adjustment made by defendant with him discontinuing the weekly payments under the compensation law without approval of the board. He made application to the board for their reinstatement while yet in defendant’s employ as a watchman and, whatever the merits of that phase of the case, under the facts, it appeared that before the proofs were closed he had been discharged, and so far as shown was then without employment. The original agreement approved by the board was for total disability of indefinite duration. The board had never approved its discontinuance and, acting in harmony with other provisions of the act, it had authority, under section 14, part 8 (2 Comp. Laws 1915, § 5467), to end, diminish or increase such payments on a review of the original award. This court held the order of the board would not be disturbed as there appeared to it some testimony, viewing the case in its entirety, tending to support facts essential to its validity.

In the Jameson Case, plaintiff when injured, seriously as is undisputed, was working in a responsible position as foreman for defendant at certain pile-driving operations and was an expert in that line, with long experience in the construction and operation of derricks and other machinery essential to such work. There was evidence that his work in that capacity included repairing pile drivers and other equipment requiring strength and agility in high and dangerous places, with a steady and clear head, for resumption of which his injuries totally and permanently incapacitated him. His subsequent employment was of a different character. Following the Foley Case, it was held that there was testimony to support the board’s order and it would not be disturbed.

As the instant case now stands on the undisputed testimony the findings of the board essential to the validity of its order is without evidential support. We think the Miller Case controlling and the order appealed from must be set aside. Certain of the views expressed by the board in that case as to the uncertainty of plaintiff’s future condition and his possible part or total disability to work as a common laborer in the near future seem somewhat pertinent here. No final order has been made by the board and on remission of the case it yet has jurisdiction.

The order will be set aside without costs to either party, and the case remanded for such further review of the .original award, in harmony with this opinion, as parties may apply for and future conditions warrant under the statute.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    OSTRANDER v. ALPENA CIRCUIT JUDGE.
    Appeal and Error — Settlement oe Record — Bill oe Exceptions— Time- — Extension—Discretion oe Court.
    The granting or denying of a motion extending the time to settle bills of exceptions or cases on appeal beyond the 80 days granted by Circuit Court Rule No. 66 is discretionary with the circuit court, and in the absence of a showing of an abuse of such discretion the Supreme Court will not interfere.
    Mandamus by Lucy Ostrander to compel Frank Emerick, circuit judge of Alpena county, to extend the time for settling a case on appeal.
    Submitted July 6, 1920.
    (Calendar No. 29,212.)
    Writ denied September 30, 1920.

      W. B. Henry, for plaintiff.

      I. S. Canfield, for defendant.
   Moore, C. J.

Lucy Ostrander was a defendant in a divorce suit. On May 21, 1919, she filed notice of an appeal from the decree made in said suit on the 3d day of May, 1919. Various proceedings were thereafter had. Mrs. Ostrander has brought mandamus to compel the circuit judge to grant her motion of February 9, 1920, to extend the time of settling the testimony in said cause. \

The claim of plaintiff as stated in thé brief is as follows:

“It is the claim of plaintiff that she and her attorney, W. B. Henry, have done everything that is required of them, and that the reason the testimony prepared for plaintiff prior to July 30, 1919, was never signed was because Mr. Hinks, of Alpena, had an oral understanding with Mr. Canfield, attorney for William H. Ostrander, that they would take the same up at such a time as would be agreeable to both of them, and that Mr. Hinks so understood such agreement, and that the reason he did not act sooner was because he relied upon what he understood to be a verbal agreement with Mr. Canfield.”

The return of the circuit judge shows the following:

1. That the final decree was signed and filed May 3, 1919.

2. That defendant (plaintiff here) filed claim of appeal May 21, 1919.

3. That the time to settle the evidence on return to the Supreme Court was extended by order of June 12, 1919, to July 30, 1919.

4. That a settlement of the case on appeal was noticed on July 28, Í919, for July 30, 1919.

5. That plaintiff’s attorney returned the proposed case to counsel for the defendant August 27, 1919, with the statement that he had made no proposed amendments to the case because it did not comply with the rule of court and that he would oppose any settlement of it.

6. That said proposed case on appeal was not filed with the clerk of the court until January 19, 1920.

7. That the circuit judge never had the matter of settling the case on appeal or of the extension of time to do so called to his attention until on January 17, 1920, and then only in an informal way.

8. That a motion was first entered to have the time extended to settle a case on appeal herein on February 9, 1920, and heard and denied February 14, 1920.

9. That said motion was addressed to the sound discretion of the court and denied because it would be an abuse of discretion to grant it.

10. That Frank T. Hinks, residing at Alpena, has been and now" is one of the attorneys of record for the defendant from the date of her appearance in the case.

11. That “it was not shown or claimed on behalf of relator that after Mr. Canfield, on August 27,1919, returned said proposed case to Mr. Hinks with the foregoing assertions, he (Canfield) ever said to any one anything in relation to, or concerning said proposed case or its settlement.”

12. That “neither was it shown or claimed that after that day, relator or her counsel ever did anything to procure such settlement until the entry of their said motion on February 9, 1920, or more than five calendar months thereafter.”

Counsel for plaintiff cites Brevoort v. Wayne Circuit Judge, 203 Mich. 388. A reference to that case will show that the circuit judge did not in that case exercise his discretion because he thought he had none. The case is clearly distinguishable from the instant case.

Under Circuit Court Rule No. 66, no more than an aggregate of 80 days’ time can be granted in which to settle a case on appeal, “except for good cause shown by affidavit on special motion, after notice to the adverse party.” * * *

The following cases decide that the granting of a motion extending the time to settle bills of exceptions or cases on appeal beyond the 80 days granted by Rule 66, or in denying the same, is discretionary with the circuit court and that unless there is shown an abuse of such discretion this court will not interfere. Roberge v. De Lisle, 158 Mich. 16, 21; Stockwell v. Eaton Circuit Judge, 172 Mich. 166, 171; Smilansky v. Wayne Circuit Judge, 186 Mich. 463, 469.

Without reciting in detail what occurred in the court below, but suggesting that plaintiff’s petition does not show that any injustice jwas done her in the decree that was entered in the divorce case, we shall content ourselves with saying that the record does not show any abuse of discretion.

The application for the writ of mandamus is denied with costs.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Sharpe, J. Fellows, J.

text:
    HAWKINS v. ERMATINGER.
    1. Constitutional Law — Statutes—Motor Vehicle Law — Automobiles — Rule of Law — Rule of Evidence.
    The provision of section 29, Act No. 302, Pub. Acts 1915 (1 Comp. Laws 1915, § 4825), placing upon the owner of an automobile a liability for damages due to its negligent operation by the immediate members of his family, creates a substantive rule of law rather than prescribes a rule of evidence.
    2. Same — Police Power.
    That the enactment of such statute by the legislature was a valid exercise of the police power, is helé, by' a divided court.
    Error to Chippewa; Fead (Louis H.), J.
    Submitted June 11, 1920.
    (Docket No. 73.)
    Decided September 30, 1920.
    Rehearing denied December 21, 1920.
    As to liability where parent’s automobile is being driven by-child, see notes in 41 L. R. A. (N. S.) 775; 50 L. R. A. (N. S.) 59; L. R. A. 1916F, 223; L. R. A. 1917F, 366; and L. R. A. 1918F, 297.

      Case by Jane Hawkins, against Henry Ermatinger for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed by a divided court.

      McDonald & Kaltz, for appellant.

      Sherman T. Handy and Warner & Sullivan, for appellee.
   Sharpe, J.

About 8 o’clock in the evening of October 26, 1918, defendant’s automobile, driven by his 15-year-old son, Reginald, collided with plaintiff’s buggy, driven by her minor son and in which she was riding, on Spruce street in the city of Sault Ste. Marie. Plaintiff’s left arm was broken above the wrist, and other injuries were sustained by her. The buggy and harness were also damaged. She recovered a verdict-on which judgment was. entered, for $924.25, from, which the defendant appeals.

The defendant sought to show that several weeks before the night in question he had given orders to the garage in which his car was kept when not in use not to allow his son Reginald to take it except on his written order, that^he had instructed Reginald to the same effect, and that it was taken on the evening in question without his knowledge and' consent and against his express orders. The court refused to admit such testimony, basing its ruling on the last sen-, tence of section 29 of Act No. 802 of the Public Acts of 1915 (1 Comp. Laws 1915, § 4825). The entire section reads as follows:

“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 violations 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.”

In 1905 (Act No. 196). the legislature provided for the registration and identification of motor vehicles and the regulation of their use of the public ways. It did not impose any liability for damages by reason of negligent operation, but provided in section 22 of that act that any right of action therefor should not be curtailed or abridged thereby. This act was amended in 1907 by Act No. 304, in which the regulations were made more stringent in many respects, but no change was made in section 22. In 1909 a more comprehensive act (No. 318) was passed. It re-enacted section 22 of the law of 1905 as subdivision 2 of section 10. Subdivision 3 provided: ,

“Liability of owners. The owner of a motor vehicle. shall be liable for any injury occasioned 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 such ordinary care in such operation as the rules of the common law require; but such owner shall not be so liable in case such motor vehicle shall have been stolen.”

This subsection was declared unconstitutional in Daugherty v. Thomas, 174 Mich. 371 (45 L. R. A. [N. S.] 699, Ann. Cas. 1915A, 1163). It was held that liability could not attach to an owner for an injury occasioned by the negligence of a stranger who had taken the car from the custody of one entrusted with its repair. Following this decision, the law of 1915 was enacted.

Defendant claims that this section, providing that it shall be “conclusively presumed” that the son was driving the car by the consent of or with the knowledge of the father, is such an arbitrary exercise of legislative power as renders it unconstitutional and void. It is said to contravene that part of section 1 of the 14th amendment to the Federal Constitution which provides:

“Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

—and that part of section 16 of article 2 of the Constitution of the State of Michigan which reads as follows:

“No person shall be * * * deprived of life, liberty, or property, without due process of law.”

There is nothing gained by an effort to accomplish the result aimed at by changing a rule of evidence and declaring that when certain facts are present a “conclusive presumption” of another fact shall arise. This statute is in effect a substantive rule of law, the aim of which is to place upon the owner of an automobile a liability for damages due to its negligent operation by the immediate members of his family. Mr. Wig-more, in his work on evidence, in a note in volume 2, page 1667, says:

“Legislators frequently seem to believe that something is gained by labeling such statutes as rules of evidence.”

Where the statute, in effect, creates a rule of substantive law, it cannot be invalidated because of its label. The same author, in volume 2, page 1665, says:

“So far as a so-called rule of conclusive evidence is not a rule of evidence at all, but a rule of substantive law, it is clear that the legislature is not infringing upon the prerogative of the judiciary.”

Independent of the statute, the rule is settled in this State that to create a liability on the part of the father it must be shown that the machine was being driven by the minor in conducting what was properly the father’s business. Johnston v. Cornelius, 193 Mich. 115, 200 Mich. 209 (L. R. A. 1918D, 880).

Our attention is called to the language in Stapleton v. Brewing Co., 198 Mich. 170 (L. R. A. 1918A, 916), and Hatter v. Dodge Bros., 202 Mich. 97. In neither of these cases was the constitutionality of this section considered or discussed, and we therefore do not rely on them as precedents to support the conclusion reached herein.

The question is here presented for the first time in this court, May the legislature, in the exercise of the police power, impose a liability on the owner of an automobile for damage due to its negligent operation by a member of his family who is using it without his permission and contrary to his orders?

Many efforts have been made to define “police power.” It has been said to be “a law of necessity” for the protection of the public peace, morals, health and safety.' Generally speaking, it may be said to include the power of the State to regulate the conduct of its citizens, and to be based on the two maxims:

(1) Regard for the public welfare is the highest law.

(2) You shall so conduct yourself and enjoy your own as not to injure others.

In People v. Smith, 108 Mich. 527 (32 L. R. A. 853), Mr. Justice Hooker said:

“It is not disputed that the State may regulate the use of private property, when the health, morals, or welfare of the public demands it. Such laws have their origin in necessity.”

In Daugherty v. Thomas, supra, Mr. Justice Stone said:

“It has been held, both by this and other courts, that there can be no question of the right of the legislature, in the exercise of the police power, to regulate the 'driving of automobiles and motor cycles on the public highways of the State.”

Under such power a large discretion is vested in the legislature, but it is at all times subject to constitutional restrictions and it is the duty of the judiciary to determine whether the manner of dealing with the power conferred' contravenes the limitations imposed' by the Constitution. As was said by Mr. Justice Brown in Lawton v. Steele, 152 U. S. 133, 137 (14 Sup. Ct. Rep. 501):

“To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”

Preliminary to the consideration of the question, we may say that we are not concerned with the wisdom of the legislation. If within the power of the legislature to enact, it should be sustained by the courts. People v. Worden Grocer Co., 118 Mich. 604. All presumptions must be indulged in to support its validity.

Many expressions in our decisions suggestive of the power of the legislature to extend the liability of the owner for damages, when his car is being driven by another, may be found. In Brinkman v. Zuckerman, 192 Mich. 624, it is said:

“In the absence of any statute enlarging the respon sibility of, the owner, defendant’s liability depends upon whether the chauffeur, when the accident occurred, was acting as his servant and within the scope of his employment.”

In Hartley v. Miller, 165 Mich. 115, 120 (38 L. R. A. [N. S.] 81), after deciding that an owner was not liable when his car was being driven by another, the court, said:

“We do not understand this, to be the law in any State, in the absence of statutory enactment.”

We may take judicial notice that the loss of life and injury to property sustained by innocent occupants of public ways by reason of the reckless driving of automobiles is appalling. Machines of high power and capable of great speed move quietly along the streets and, unless controlled by those experienced in their use, are more dangerous than street cars or railroad trains, whose approach may usually be heard and whose location is confined to the line of their tracks. Without extending these observations, we call attention to the language of Mr. Justice Steere in Colborne v. Railway, 177 Mich. 139, 149, and Patterson v. Wagner, 204 Mich. 593, 600, in which such dangers are fittingly pointed out.

An automobile is not dangerous in the same sense as a ferocious beast loose on the streets. Until human agency intervenes, it is usually harmless. The hazard results from the conduct of the driver rather than the nature of the vehicle. It possesses, however, when recklessly driven, such power to do injury as. to justify stringent regulations, not only of the vehicle itself but of the operator, for the safety of persons and property on the public ways.

This leads to the consideration of what we deem the meritorious question presented, Is the provision in question a reasonable regulation? We again emphasize the fact that the duty to so determine, primarily, rests on the legislature and this court should only interfere when constitutional rights are invaded. The owner of Such a vehicle has complete dominion over it and the absolute right of control thereof. He may, if he will, retain its possession and so prevent its use by persons other than careful, experienced operators. The legislature may impose upon him the obligation to do so as a legal duty. It has determined, in its judgment, that the most practical way in which it can compel the performance of such duty is to provide for his personal liability for damages occasioned thereby. The purpose of the act in this respect is not to provide a cause of action which did not exist before, but to protect the public in the use of the streets and highways. The fact that in doing so a rule of evidence or, in effect, a rule of substantive law is enacted which fixes a liability on him to pay damage for injury done by his machine when being driven by a member of his family without his permission or contrary to his orders does not render such legislation open to the charge that it deprives him of his property without due process of law. It in no way prevents litigation of the claim of negligence on the part of the driver. It simply insures to the injured party a right of action against a party presumably able to respond in damages therefor. By his neglect to observe the precautionary duty resting on him, the owner has rendered the injury possible and the act in no way violates his constitutional rights in holding him liable for the damages occasioned thereby.

While this statute is an innovation upon the common-law rule heretofore stated, we believe its constitutionality finds support in many cases in which the police power of a State has been considered. In Jones v. Brim, 165 U. S. 180 (17 Sup. Ct. Rep. 282), the validity of a law in Utah which rendered any person driving a herd of cattle, sheep, etc., along a highway constructed on a hillside liable for damages done in destroying the banks of the highway, without regard to the question of negligence, was attacked as unconstitutional and sustained. It was held that the Federal amendment “does not limit, nor was it designed to limit, the subjects upon which the police power of a State may be lawfully exerted,” and that “embraced within the police powers of the State is establishment, maintenance and control of public highways.” The right “to classify occupations with relation to their peculiar liability to cause injury to property from the dangerous nature of the implements employed in the business” was upheld. The provision was said to be designed to put an end to any controversy as to the existence or non-existence of negligence and so provided for an absolute legal presumption to that effect, resulting from the fact of having driven the herd.

In Commonwealth v. Alger, 7 Cush. (Mass.), 53, Chief Justice Shaw, speaking for the court, said:

“It is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.”

Revised Statutes of Ohio, § 4270 et seq., provide that any judgment recovered by a person who loses money by gambling against the person winning the same shall be a lien on the building and real estate on which it stands, in which the gambling was conducted, if the lessor knowingly permitted it to be used for gaming purposes. In Marvin v. Trout, 199 U. S. 212 (26 Sup. Ct. Rep. 31), it was urged that the making of the judgment conclusive evidence of the liability of the lessor violated the due process clause of the State Constitution. The court said that—

“The liability of the owner * * * was clearly part of the means resorted to * * * for the purpose of suppressing the evil in the interest of the public morals and welfare.”

In Merchants & Planters’ Bank v. Brigman, 106 S. C. 362 (91 S. E. 332, L. R. A. 1917E, 925), the validity of an act (27 St. at Large, 737), providing that when a motor vehicle (a stolen car excepted) is operated in violation of the provisions of law or negligently and carelessly, and injury is caused thereby, any judgment recovered for damages shall be and constitute a lien upon such vehicle, next in priority to taxes, was questioned. The court, in upholding the act, said:

“Motor vehicles are a new and comparatively a modern means of locomotion. They are unquestionably dangerous, and can and do destroy property, kill and maim people, as much as locomotives and engines and cars on railroad tracks. * * *
“The legislature, in passing the act in question in the exercise of its police regulations as to how dangerous instrumentalities could be operated on public highways, did not exceed its power and go beyond what it had the right to do.”

In Van Blaricom v. Dodgson, 220 N. Y. 111 (115 N. E. 443, L. R. A. 1917F, 363), where it was sought to hold the father liable for the negligence of a minor son who was driving a car “purchased for the pleasure of the members” of his family, on the ground of agency, the court said:

“If, contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter’s own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new and anomalous slant applied by the courts to the principles of agency.”

In Cunningham v. Castle, 111 N. Y. Supp. 1057 (127 App. Div. 580), the court said:

“It may be that it would be wise and in the public interest that responsibility for an accident caused by an automobile should be feed to tne owner thereof irrespective of the person driving it, but the law does not so provide.”

2 Tiedeman, State and Federal Control of Persons and Property, § 170:

“While personal property is protected by constitutional limitations against all unnecessary interference and regulation, it is a standard rule of police power that one must not make such a use of his property as to injure another; and, consequently, the use and enjoyment of personal property may be subjected to such public regulation as may be necessary to prevent any threatened injury to the public.”

See, also, St. Louis, etc., R. Co. v. Mathews, 165 U. S. 1 (17 Sup. Ct. Rep. 243); Griffin v. Russell, 144 Ga. 275 (87 S. E. 10, L. R. A. 1916F, 223, Ann. Cas. 1917D, 994); Chicago, etc., R. Co. v. Zernecke, 183 U. S. 582 (22 Sup. Ct. Rep. 229); State v. Redmon, 134 Wis. 89 (114 N. W. 137, 14 L. R. A. [N. S.] 229, 15 Ann. Cas. 408).

The record in this case shows that the son, Reginald, had been in the habit of driving the car with permission of the father. On this occasion, it is claimed that such permission was refused. The legislature may well have considered the impossibility of the plaintiff meeting such a defense and the necessity of providing against it.

The act involves the public policy of the State in its regulation of the use of such vehicles on the streets and highways and the provision complained of was within the power of the legislature to enact.

Were the allegations of defendant’s negligence sustained by the proofs? The claims of plaintiff in this respect which were submitted to the jury were, first, that the defendant’s automobile was driven at an unreasonable rate of speed; and, second, that it was being driven on the left-hand side of the center of the street. It appears from the plaintiff’s proofs that her horse and buggy were being driven slowly as they passed along Spruce street, going east. Just before reaching the intersection of Spruce street and Bingham avenue, they turned to the left to pass an automobile standing close to the curb. That defendant’s car, coming south on Bingham avenue; as it turned westerly into Spruce street, passed to the east of the point of intersection. That when it struck plaintiffs buggy it was south of the center line of Spruce street. The driver of the buggy testified, “At no time was any part of the horse and buggy north of the center line of Spruce street.” Neither the plaintiff nor her son was able to approximate the speed of the car, but testified that “it was coming pretty fast.” The driver of the car testified that he had had experience in driving it for two or three years and was a careful driver. That at the time of the collision he was going under' 15 miles an hour.

There was certainly a conflict in the testimony as to' the relative positions of the buggy and the car on the.' street at the time the collision occurred. While the maximum rate of speed fixed by law may not have been, exceeded, we think an issue of fact as to whether or not it was reasonable, under the circumstances, was presented. Patterson v. Wagner, supra; Benjamin v. McGraw, 208 Mich. 75.

The error assigned on the argument of plaintiff’s counsel is disposed of by what was said by Mr. Justice Clark in the recent case of McCue v. Railway, 210 Mich. 554, decided June 7, 1920.

The judgment is affirmed.

Moore, C. J., and Steere and Clark, JJ., concurred with Sharpe, J.

Fellows, J.

(dissenting). I agree with Justice Sharpe in his construction of the statute under consideration : that it creates a liability rather than prescribes a rule of evidence. As so construed I am unable to agree that it is a valid exercise of the legislative power. In my judgment the case of Daugherty v. Thomas, 174 Mich. 371 (45 L. R. A. [N. S.] 699, Ann. Cas. 1915A, 1163), is absolutely controlling. In that 'case this court had under consideration the provision of subdivision 3 of section 10 of Act No. 318, Public Acts 1909. This court there held that the provision under consideration was not a regulation within the police power of the State but was in conflict with both Federal and State Constitutions. Mr. Justice Stone, who wrote for the court, exhaustively considered the authorities, and, with the concurrence of the entire bench, said:

"To hold subdivision 3 of section 10 constitutional is to hold a party absolutely liable for the negligent conduct of another, a mere stranger or a wilful trespasser, no matter how careful or free from negligence he himself has been. We think that the result of such holding would be to take the property of defendant Thomas to pay for the wrongful and negligent act of another person not sustaining to him the relation of servant, agent, or employee. Such a doctrine seems unnatural and repugnant to the provisions of the Constitution here invoked. We are forced to the conclusion that the provisions of this subdivision, are not a necessary regulation in the exercise of the police power; that in and by its terms the plain provisions of the Constitution are violated; and the subdivision must be held unconstitutional, and the statutory liability therein asserted done away with.”

During the course of the opinion Justice Stone had concisely stated the general rule in the following language:

"It may be laid down as a general proposition that absolute liability, without fault on his part, can not ordinarily be imposed upon a citizen.”

If the provision there under consideration was not a regulation within the police power of the State then certainly the one here under consideration is not. That case recognizes the power of the State to regulate automobiles, but it denies the power of the State to take the property of one of its citizens to pay for the negligence of another. Unless we overrule that case the instant case must be reversed upon the ground that no actionable negligence of the defendant has been established. I think it was correctly decided and should not be overruled. It has been followed by this court in Loehr v. Abell, 174 Mich. 590 (where a minor son was using the car); Mitchell v. Lumber Co., 175 Mich. 75 (where the daughter of an officer of the corporation was driving the car); Barry v. Metzger Motor Car Co., 175 Mich. 466; Levyn v. Koppin, 183 Mich. 232; Johnston v. Cornelius, 193 Mich. 115 (where a minor son was using the car). In none of the cases before this court where the present statute was involved has its constitutionality as against the present objections been considered.

In my judgment the ease should be reversed with a new trial and with costs to defendant.

Brooke, Stone, and Bird, JJ., concurred with Fellows, J.