Endres v. Mara-Rickenbacker Co. , 243 Mich. 5 ( 1928 )

Defendant Mara-Rickenbacker Company, a corporation dealing in second-hand automobiles, acquired by purchase an automobile registered in Ohio. On August 25, 1926, the defendant dealer sold the car to defendant Pushkin, who paid for it and accepted delivery. Pending receipt of certificate of title and of registration in this State, and that Pushkin might use the car, the dealer loaned him a set of its license plates which were put on the car. On August 27, 1926, while Pushkin was driving the car, having on it license plates of the dealer, it collided with plaintiff's car to plaintiff's damage, which was caused by Pushkin's negligence. The declaration, as amended, may be said to be against both of the above defendants. The dealer alone defended. Tried without a jury, there were findings and judgment for plaintiff, and defendant dealer brings error.

Plaintiff contends that although the defendants made a bargain, the price was paid and accepted, and the car was taken and delivered, there was no sale, because certificate of title had not passed; that the car still was owned by the dealer, who, therefore, was liable, having consented to Pushkin's driving it for "sale or demonstration purposes;" citing section 11, Act No. 287, Pub. Acts 1925.

Appellant urges that there was a sale, that Pushkin was the owner of the car at the time of the accident, and that the use, though illegal, of the dealer's license plates, had no causal relation to the accident, and that it, therefore, is not liable. If Pushkin was the owner of the car at the time of the accident, the dealer is not liable here for the reason that its license plates, loaned to and used by Pushkin, neither caused nor contributed to cause the accident, had no causal relation to it. Spencer v. Phillips Taylor, 219 Mich. 353; Beebe v.Hannett, 224 Mich. 88; Janik v. Ford Motor Co., 180 Mich. 557 (52 L.R.A. [N. S.] 294). This rule is supported by the great weight of authority. 16 A.L.R. 1108, note, and 35 A.L.R. 62, note.

If the dealer owned the car at the time in question, it follows on the facts here that it consented to Pushkin's driving it, and therefore, under a statute of this State, the dealer is liable. Act No. 287, Pub. Acts 1925, § 29.

The decisive question is, Which of the defendants owned the car? Is the sale void for the dealer's violation of the statute (section 3, Act No. 46, Pub. Acts 1921, as amended by Act No. 16, Pub. Acts 1923) in failing to deliver to Pushkin

"an affidavit of conveyance or assignment in such form as the secretary of State shall prescribe, to which shall be attached the assigned certificate of title received by such dealer."

By section 4 of Act No. 46, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4832 [15]), it was a crime punishable by fine or imprisonment or both to sell a motor vehicle without complying with the provisions of section 3 above quoted from. The legislature provided penalty for such violation, fine or imprisonment or both. It did not expressly provide that the sale or transfer without such compliance, be void or fraudulent. If the courts are to add such penalty, further than that specifically given by the legislature, it must clearly appear from the statute that the legislature so intended. SeeDunlop v. Mercer, 156 Fed. 545, and 13 C. J. p. 422.

Among other things, the title of Act No. 46, Pub. Acts 1921, declares its purpose "to regulate purchase and sale or other transfer of ownership" and "to facilitate the recovery of motor vehicles * * * stolen." The act is designed to discourage and to prevent stealing of automobiles, to protect the public against crime. It states definitely a rule of sale or transfer of automobiles, and it provides the stated penalty for violation thereof. In Cashin v. Pliter, 168 Mich. 386 (Ann. Cas. 1913C, 697), it was said:

"The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void."

See, also, Edward v. Ioor, 205 Mich. 617 (15 A.L.R. 256), and cases cited.

In view of the purpose and language of the statute, we think it was the intent of the legislature that a sale or transfer of an automobile in violation of the provisions of the act should be void. It follows that in the case at bar there was not a sale to Pushkin, that as between him and the dealer, the dealer was the owner of the car (which ownership on this record the dealer may not question), that it was being driven with consent of the dealer at the time of the accident, and that it is liable.

Judgment affirmed.

FEAD, C.J., and NORTH, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.