(concurring). As against the trial court’s somewhat hasty judgment that plaintiff take nothing by her suit, the record thus far made would justify a jury’s finding that Miss Mazur, the driver of defendant’s car with his knowledge and consent, was causally negligent. 1 It would also justify a jury’s finding that plaintiff was not at the time of accident a guest passenger within the proviso which, by PA 1929, No 19, was added to currently applicable section 401 of the motor vehicle code (CLS 1961, § 257.401 [-Stat Ann 1960 Rev § 9.2101]). That status of the record called for a judicial determination that the trial should proceed to verdict no matter the fact or legal effect, if any, of Miss Mazur’s subsequent tender of $22 and contention of disaffirmance.
The defendant owner’s statutory liability to plaintiff — it was exclusively vicarious — arose and became fixed at the time of the aforesaid accident by operation of said section 401. The language of section 401 has from its inception (see CL 1915, § 4825) left no room for thought that the owner’s liability— his statutory liability distinguished from the common-law liability of the driver of his motor vehicle *361—might he terminated by some subsequent and separate act of such driver.
Let us consider the precise language of the applicable portion of said section 401 as same stood on the date of plaintiff’s injuries as alleged (February 27, 1962):
“Sec. 401. * * * 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 operation as the' rules of the common law require. 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.”
I agree with Justice Kelly that Brown v. Wood, 293 Mich 148 (127 ALR, 1436) should be overruled. That case (it stands alone; see Smith v. Lawrence Baking Company, 370 Mich 169, 177, 178) was poorly, considered and is contrary to the better reasoning’ of the authorities our Brother has reviewéd in'his opinion. I insist nonetheless that Brown v. Wood has never rightfully enjoyed consideration for possible application to the case at bar. Brown v. Wood brought up for review separate judgments against the defendant owner-operator. He was liable directly as well as vicariously. No question of his liability under the owner-liability statute was considered by the Court. Here we must consider that question, the defendant owner having been neither driver, nor minor, nor present in his car.
*362I hold that defendant’s liability to plaintiff became fixed by operation of section 401 regardless of Marilyn Mazur’s subsequent tender and effort to terminate her own liability.3 She may indeed have succeeded in releasing herself by tender and declaration of disaffirmance; a question we need not determine. But she did not because she could not, in the face of section 401, effect by such tender and declaration a release of her father’s statutory liability.
I concur in reversal and remand for entry of order directing vacation of both circuit court judgments. Appellants should have costs of both appellate courts.
O’Hara, J., concurred with Black, J. Souris, J., did not sit.The seeond entitled action being derivative, all references to “plaintiff” will be to plaintiff Margaret Pokriefka.
After submission of this ease all parties, including counsel amicus, were permitted to file briefs in response to these Court-posed questions:
“1. Defendant having admitted ownership of the ear driven by his minor daughter, and having admitted that she was driving the ear with his knowledge and consent, would he not be liable under the statute to plaintiff for causal ordinary negligence of his daughter no matter whether the daughter did or did not subsequently disaffirm whatever contract she and the plaintiff passenger had agreed upon?
“2. Upon the same premises, does not the owner liability statute render the owner liable as in the body (not proviso) thereof set forth whether or not the driver is immune, for some legal reason, from liability?”