(dissenting in part). I am impelled to write separately in this case because certain of the language in Mr. Justice Black’s logically developed opinion is inconsonant with my conclusions. To sign only as “concurring in the result” is to me, not only in this case but in all cases presenting the same problem, a disservice to the writing Justice and *560valueless to the circuit bench, to the bar, and, through them, to the parties litigant. Unless we who are not in complete accord with a given opinion specify our reasons, we leave nothing to which those who would urge a change in our case law, in cases of a divided court, can refer with particularity.
First: I agree that the opinions in this case and Tortora v. General Motors Corporation, 373 Mich 563, should be read and considered together, because this case really presents only a question of discretionary leave to amend a declaration (complaint). Tortora turns, in my view, upon a reversibly erroneous charge to the jury. However, both cases in their legal substance involve the application of the doctrine of negligent entrustment of a motor vehicle.
Second: I agree that we may consider a new legal issue “adequately briefed and presented” under proper circumstances, particularly as here where the case is supplementarily briefed and reheard.
I disagree with Mr. Justice Black when he says that this Court “unequivocally applied such [negligent entrustment] common-law rule to a motor car lender (Tanis v. Eding, 265 Mich 94); a full quarter century after [his emphasis] Michigan’s owner-liability statute had become effective.” I do not so read Tanis. This Court, in my view, did not apply the statute “unequivocally.” Actually the Court was careful to note that:
“Eding [the owner] was not liable, under CL 1929, § 4648, as owner of the car, because he had not received certificate of title.”
Thus the case for me stands not for the proposition that Mr. Justice Black urges but for its converse. It stands, I believe, for the precise point which I urge herein. " Negligent entrustment of a motor vehicle is available to an injured party in those cases where the owner for whatever reason is not *561liable Tinder the vicarious ownership statute and his responsibility for the acts of his entrustee become his responsibility dehors the statute.
In like manner and on the same basis I distinguish Krausnick v. Haegg Proofing Co., 236 Iowa 985 (20 NW2d 432, 163 ALR 1413). To whatever purpose the editors of 163 ALR 1413 cite the case, the real point involved was based upon a difference in our statute and Iowa’s and upon a point which we disposed of long since in Moore v. Palmer, 350 Mich 363, 394:
“We now reiterate. The Michigan owner liability act, CLS 1954, § 257.401 (Stat Ann 1952 Rev §9-.2101), is an enactment founded upon the police power of the State. Its obvious purpose is to make owners of automobiles liable for the negligent acts of those to whom they entrust their vehicles. Liability under the statute is not limited by the common-law tests applicable to the master-servant relationship. The fact that a common-law action under the master-servant doctrine preceded the statute (and still exists) does not create any exception from the terms of the statute in favor of employers as a class.” (Emphasis supplied.)
The Iowa court carefully noted that “consent” under their statute meant consent for a specific purpose:
“If it [the automobile] was placed in the driver’s possession for a specific trip or purpose, there is no liability of the owner under the statute if injury * * * results from negligent operation of the vehicle while being used for a different and unauthorized purpose. m * * We see no reason for holding in the latter case that the common-law rule of liability might not be invoked against the owner if he negligently placed the vehicle in the hands of a known incompetent.” Krausnick, supra, 989. (Emphasis supplied.)
*562The dichotomy between Mr. Justice Black and myself occurs when he would allow the assertion of the common-law doctrine of negligent entrustment and the admissions of the proofs of incompetence incident thereto in cases where ownership and consent to operate under our statute are alleged and not denied. For in such a ease we in truth do precisely what the trial judge said we do — allow the assertion of this ground of liability “solely to influence the jury.” Thus I would leave unimpaired the doctrine of negligent entrustment of a motor vehicle in our State but I would restrict its use to those cases wherein liability of the owner is not already alleged and admitted by reason of the operation of our statute.
Thus plaintiffs in cases where the liability could be dual, i.e., statutory and by reason of entrustment, are free to choose their basis of relating the acts of the driver to the owner. Defendants likewise cannot have their defense cake and eat it too. If they controvert by denial of ownership or consent and put a plaintiff to his proof, he may prove his case of liability by any proof of the driver’s prior incompetence and his necessary scienter thereof.
Third: I would leave unimpaired the right of cross-examination in any case under the established rules of evidence, the right to cross-examination concerning prior convictions of “prohibitory traffic law or ordinance” subject to the tidal court’s supervision as to relevancy in point of time. I specifically reject the admission of evidence of “past accidents”' or “accident proneness” for the obvious reason of' their objectionable nature as relating to proximate cause, a necessary ingredient of total proof of tort liability, in a motor vehicle accident case. Thus and to this extent I agree with Mr. Justice Black that when our coequal coordinate legislative branch en*563acts “rules of practice and procedure which rules include * * * rules of evidence” which are at variance with what we have prescribed by rule within our constitutionally inviolate area of the judicial power, they are void. I join with Mr. Justice Black in his “advice to the bench and the bar” of our intent to consider without delay an amendment to GrCB. 1963, 507, along the lines he suggests in his footnote.
For the reasons I have here detailed, I would affirm the trial judge and his denial of the. right to amend. I would remand for trial upon the issues pleaded to be admitted or denied consistent with the limitations herein set forth. Appellees may tax costs.