COWAN
v.
STRECKER
Docket No. 55905, (Calendar No. 12).
Supreme Court of Michigan.
Argued January 9, 1975. Decided May 27, 1975.Smith & Brooker, P.C. (by Carl H. Smith, Jr.), for plaintiff.
Collison & Fordney, P.C. (by J. Michael Fordney), for defendant Strecker.
J.W. FITZGERALD, J.
In this automobile negligence action, tried before a judge, defendant owner of the car which was involved in an accident resulting in injury to plaintiff contends that liability under the owners' civil liability act[1] is avoided because there was no consent on her part to use of *112 the vehicle by the injuring driver. The trial court, on the basis of the particular facts present, found for defendant owner. The Court of Appeals reversed,[2] pointing out that a decision of that Court which would sustain the trial court resolution, Ensign v Crater, 41 Mich App 477; 200 NW2d 341 (1972), interpreting Roberts v Posey, 386 Mich 656; 194 NW2d 310 (1972), was in fact not reconcilable with the rationale of Roberts. Leave to appeal was granted to resolve the conflict between decisions of the Court of Appeals. We conclude Roberts will not sustain the Ensign interpretation and affirm the Court of Appeals.
I
The trial court found that defendant owner, Grace Strecker, had given her automobile to an acquaintance, Mrs. Shannon, with specific instructions that she not let anybody else drive her car. Mrs. Shannon proceeded to disobey the admonition and permitted her son William to operate the vehicle without Grace Strecker's knowledge. While William Shannon was driving, an accident occurred in which plaintiff sustained back injuries.[3]
The rights of plaintiff vis-a-vis defendant-owner Strecker depend upon construction of MCLA 257.401; MSA 9.2101, which states in pertinent part:
"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 of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such *113 operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter or other immediate member of the family * * *." (Emphasis supplied.)[4]
Able counsel below directed the trial court's attention to the decisions of this Court in Roberts, supra, and of the Court of Appeals in Ensign, supra. Cognizant of these cases, the judge concluded, after ascertaining the facts:
"It is [my] opinion that the final answer is that it will be outside the scope of the authority and that accordingly that when under the circumstances where the owner had expressly stated, `Do not let anyone else drive,' that this was a valid limitation and that when it was breached, that it meant that the use was without her consent, * * *. [I]t is [my] finding that the Defendant Grace Platt Strecker would not be liable for reason of the fact that she is within the statutory exception."
II
Roberts involved injury which occurred while a permittee was using a vehicle at a time subsequent to the time the owner had directed the vehicle's return. This Court, in overruling earlier decisions, found liability in view of the above-cited statutory language although express instructions of the owner had not been followed by the permittee and the owner had taken reasonable steps to *114 regain possession of the vehicle. In elaborating upon the import of the "consent" limitation in the statute the Roberts Court observed:
"It may be assumed that no auto owner gives consent to another to have an accident with his car. In that sense, every vehicle driven by someone other than the owner, which becomes involved in a collision is being driven outside the scope of the owner's consent.
"The statute absolves the owner from liability only when the vehicle is being driven without his express or implied consent or knowledge. The consent or knowledge, therefore, refers to the fact of the driving. It does not refer to the purpose of the driving, the place of the driving, or to the time of the driving.
"The purpose of the statute is to place the risk of damage or injury upon the person who has the ultimate control of the vehicle.
"The owner who gives his keys to another, and permits that person to move several thousand pounds of steel upon the public highway, has begun the chain of events which leads to damage or injury.
"The statute makes the owner liable, not because he caused the injury, but because he permitted the driver to be in a position to cause the injury.
"By common-law standards, this may be a remote, rather than a proximate cause. But it is competent for the legislature to declare a remote factor to be a proximate cause." Supra, 661-662.
In Ensign v Crater, supra, injury occurred when a vehicle owner's daughter, in violation of instructions, permitted a friend to drive a vehicle and an accident resulted. The Court of Appeals ordered entry of judgment notwithstanding verdict in favor of the vehicle owner. In so doing, that Court distinguished Roberts, reasoning that the holding in Roberts did not extend to cover the situation where the driver was at no time given permission by the owner to operate the vehicle. Ensign misreads *115 Roberts. Roberts indicates unequivocally that "consent", as that term is used in the owners' civil liability act, must be construed to effectuate the policy of the act that is, "to place the risk of damage or injury upon the person who has the ultimate control of the vehicle". The essential consent is consent to the driving of the vehicle by others. Cf. Kerns v Lewis, 246 Mich 423; 224 NW 647 (1929). Thus, when an owner willingly surrenders control of his vehicle to others he "consents" to assumption of the risks attendant upon his surrender of control regardless of admonitions which would purport to delimit his consent. It must be so, or the statutory purpose would be frustrated. As the Court of Appeals, after summarizing the holding in Roberts, so well stated in resolving this case:
"The specifics of any limitations imposed by the owner are irrelevant to the statute's effectuation of its purpose. Whatever the limitations, once the owner has turned his keys over to another, he is powerless to enforce those limitations. Several thousand pounds of steel are being moved upon the public highway because the owner consented thereto. Even if the individual who borrowed the car has deviated from his instructions, the car is being operated on the highway because the owner consented thereto. If the car is involved in an accident, the owner is liable because of that consent."[5]
III
The trial court's construction of the language of MCLA 257.401; MSA 9.2101, resembles the erroneous construction in Ensign. In our view the Court of Appeals in this case properly found, given the findings of fact made by the trial court, that application of the meaning of this language as *116 construed in Roberts requires reversal and entry of judgment against defendant Strecker. To no avail defendant Strecker contends that the trial court's findings as to "consent" are conclusive because they are findings of fact. While facts were found by the trial court, the statutory purport of "consent" in the owners' civil liability act is a matter of law. The trial court erred in measuring ascertained facts against an erroneous legal standard.
Affirmed. Costs to appellee.
T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, and M.S. COLEMAN, JJ., concurred with J.W. FITZGERALD, J.
SWAINSON, J., and the late Justice T.M. KAVANAGH took no part in the decision of this case.
NOTES
[1] MCLA 257.401; MSA 9.2101.
[2] 52 Mich App 638; 218 NW2d 50 (1974).
[3] William Shannon, while a named defendant, has taken no part in the proceedings upon appeal.
[4] The statutory presumption of knowledge of and consent to the use of a motor vehicle does not apply in the instant case because the motor vehicle was not being operated by a member of the family of defendant Strecker.
[5] 52 Mich App 638, 641-642; 218 NW2d 50 (1974).