West v. Cyril J Burke, Inc.

T. M. Burns, J.,

(dissenting). I disagree with the majority’s interpretation of the owner’s liability *198statute, MCL 257.401; MSA 9.2101. The majority holds that, since the statute uses the word "driven” three times, a motor vehicle must be driven at the time an accident occurs for the statute to apply. The majority feels that "to hold otherwise is to ignore the statutory requirement that the vehicle be driven with the owner’s consent and driven at the time of the injury”. (Emphasis in original.) While emphasizing the word "driven”, the majority ignores other portions of the statute which I believe would allow a stationary motor vehicle to be included within its scope.

The statute follows a well-recognized pattern. It states a general rule and then lists exceptions. The general rule is that the owner of a motor vehicle is liable for any injury occasioned by the negligent operation of the motor vehicle. The first exception to this rule is that the owner is not liable if the motor vehicle is being "driven” without his or her express or implied consent or knowledge. The second exception is the guest-passenger exception, which was found to be unconstitutional in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975).

The majority errs by treating the "driven without consent” exception as part of the general rule. The original version of this statute clearly shows that this exception is not part of the general rule. Subdivision 3 of § 10, Act No. 318 of the Public Acts of 1909 stated:

"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 *199not be so liable in case such motor vehicle shall have been stolen.”

In Daugherty v Thomas, 174 Mich 371; 140 NW 615 (1913), the Supreme Court found this stolen vehicle exception to be unconstitutional. The Court found that by using the word "stolen” the exception required proof of an intent to steal. The Court held that to limit the exception in such a manner would:

"[H]old 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 employé. Such a doctrine seems unnatural and repugnant to the provisions of the Constitution here invoked.” 174 Mich 390.

The statute’s current language was obviously drafted to avoid this constitutional problem. The current language, however, remains an exception to the general rule. I would, therefore, not take one word out of that exception and use it to redefine the general rule. The general rule clearly states that the owner is liable for injury occasioned by the "negligent operation” of a motor vehicle.

I also disagree with the majority because they give undue emphasis to the word "driven” while ignoring other operative words. The word "driven” is only found in the two sentences regarding the "driven without consent” exception. The general rule and the guest-passenger exception use the word "operate” instead of "driven”. While the terms "operate” and. "drive” are synonomous in *200many situations, the term "operate” is broader since it does not require the vehicle to be in motion. As stated in People v Pomeroy, 88 Mich App 311, 319; 276 NW2d 904 (1979), aff'd 415 Mich 328 (1982):

"[W]hen called upon in other contexts to determine the scope of the term 'operate’, Michigan appellate courts have not limited that term to situations where a motor vehicle was being propelled.”

According to the majority’s interpretation, the term "operate” should not be given its normal meaning because the word "driven” is also used. The majority’s interpretation of the statute creates an unnecessary conflict. I would give the terms "operate” and "drive” their normal meanings. Considering my view, that the term "driven” is only used in an exception to the general rule, the terms are not in conflict in this statute.

In considering the facts of the instant case, I would find that the owner’s liability statute is applicable. The crane clearly is a motor vehicle. Johnston v Hartford Ins Co, 131 Mich App 349; 346 NW2d 549 (1984). The crane also was being operated at the time of the accident. The accident occurred when the crane’s operator negligently lifted a load. Since the crane was being used or employed in some specific function, or to produce some desired work or effect, it was being operated at the time of the accident. Wells v Dep’t of Corrections, 79 Mich App 166; 261 NW2d 245 (1977); Orlowski v Jackson State Prison, 36 Mich App 113, 116; 193 NW2d 206 (1971). In Orlowski and Wells, this Court interpreted the owner’s liability exception to governmental immunity. MCL 691.1405; MSA 3.996(105). In light of these decisions, I see no reason to rewrite the owner’s liabil*201ity statute to limit it only to vehicles that are being "driven”. I would affirm the trial court’s denial of defendant’s motion for a directed verdict. I do not discuss the other issues since they have become moot in light of the majority’s holding.