The operation of a motor vehicle by one who is not a member of the family of the owner gives rise to a rebuttable common-law presumption that the operator was driving the vehicle with the express or implied consent of the owner. Hatter v Dodge Brothers, 202 Mich. 97; 167 N.W. 935 (1918); Monaghan v Pavsner, 347 Mich. 511, 518; 80 N.W.2d 218 (1956) (BLACK, J., for affirmance); Houseman vWalt Neal, Inc, 368 Mich. 631; 118 N.W.2d 964 (1962) (SOURIS, J., for affirmance); Baumgartner v Ham, 374 Mich. 169; 132 N.W.2d 159 (1965). There is no statutory presumption of consent where the operator of the vehicle is a non-family member.
202 Mich at 102. Appellees assert that Monaghan v Pavsner, 347 Mich. 511; 80 N.W.2d 218 (1956), provides that the presumption applies to an outside-the-family driver as well. However, Monaghan was decided by an equally divided court.
He requests judgments notwithstanding such verdicts or, in the alternative, order of retrial. In Monaghan v. Pavsner, 347 Mich. 511, and later in Houseman v. Walt Neal, Inc., 368 Mich. 631, judgments for correspondingly situated plaintiffs were affirmed as against demands for judgments notwithstanding the respective verdicts. Affirmance in each instance resulted from an equally divided vote.
As early as Hatter v. Dodge Brothers, 202 Mich. 97, this Court recognized, in cases such as this, a presumption that the driver's possession and use of another's motor vehicle is lawful. This presumption of innocence has recently been discussed in Monaghan v. Pavsner, 347 Mich. 511, 518. CL 1948, § 750.413 (Stat Ann 1954 Rev § 28.645), makes it a felony wilfully to take possession of and drive or take away a motor vehicle belonging to another without authority.
— REPORTER. There is no need to repeat now what 4 of us said of the cited statute in Monaghan v. Pavsner. 347 Mich. 511, 518, 527-530. That is all of record.
Otherwise the statute permitting adversary cross-examination ahead of time becomes a trap for the trusting and unwary, a mere device to reward the blandest perjury, not an instrument for more speedily getting at the merits of a controversy. Mr. Justice BLACK has written eloquently to the same general effect in his scholarly opinion tracing the curious case history of this statute in Monaghan v. Pavsner, 347 Mich. 511, beginning at page 527. See, also, our comment thereon in Mitcham v. City of Detroit, supra, at page 198. Perhaps in this particular case we strain at a gnat, since, as already noted, the judicial and fact-finding functions were united in one individual, namely, the trial judge, and as a practical matter it may well be said that if the trial judge felt as he did in the exercise of his judicial function on the motion, it is rather unlikely that he will change his mind in the future, or that he would have felt much different in his role as a fact finder had he denied the defendant's motion in his judicial capacity at the trial below and instead let the case go to himself on the merits in his dual role as fact finder — as we think he should have done.
Such ruling should, and doubtless will, discourage careless or deceptive pleading. Further, and as every experienced trial counsel will affirm, its observance affords a time-tried and altogether valuable means of getting at the truth where facts are disputed. (For extended discussion of the subject of admissions made in pleadings, see Monaghan v. Pavsner, 347 Mich. 511, 522, 523, 524.) Second: We refer now to the suit of plaintiff Theresa M. Vachon. Theresa alleges in her declaration that, as a result of the collision, "she suffered from extreme shock and fright, and became extremely nervous and irritable:" that "this nervous condition has intensified to such an extent that plaintiff no longer desires to ride in an automobile for fear that another accident will occur," and that "she no longer enjoys life nor has the zest for living that she possessed prior to said accident."
— REPORTER. See Mr. Justice BLACK's penetrating analysis questioning such a blanket application of this case-law rule in his opinion in Monaghan v. Pavsner, 347 Mich. 511, commencing at p 527. Modern pretrial discovery may offer somewhat more hope of relief, but here too expense and delaying legal chess play could possibly blunt its practical effectiveness.
From Stapleton down to date there have been numerous cases presented, considered and decided by this Court concerning fact situations of all sorts wherein the statutory test of express or implied consent or knowledge has been considered. In the following cases the statutory language has been approved as the test of owner liability: Hatter v. Dodge Brothers, 202 Mich. 97; Kerns v. Lewis, 246 Mich. 423; Scott v. Wallace, 251 Mich. 28; Barnum v. Berk, 256 Mich. 363; City of St. Joseph v. Grantham Motor Sales, 269 Mich. 260; Rabaut v. Ford Motor Sales Co., 285 Mich. 111; Wingett v. Moore, 308 Mich. 158; Monaghan v. Pavsner, 347 Mich. 511. It should be noted that in Hatter the driver was an employee of the owner, while the balance of the cases deal with situations where drivers borrowed cars from the owners. Representative quotations from these are as follows:
Crater, then, met his burden, and the presumption of knowledge and consent should have disappeared from the case. See Lahey v. Sharp, 23 Mich. App. 556 (1970); Muma v. Brown, 378 Mich. 637 (1967); Detroit Automobile Inter-Insurance Exchange v. Gordon, 15 Mich. App. 41 (1968); Houseman v. Walt Neal, Inc, 368 Mich. 631 (1962); Detroit Automobile Inter-Insurance Exchange v. Halsey, 13 Mich. App. 253 (1968); Monaghan v. Pavsner, 347 Mich. 511 (1956); Krisher v. Duff, 331 Mich. 699 (1951); Cebulak v. Lewis, 320 Mich. 710 (1948).Krisher v. Duff, supra; Christiansen v. Hilber, supra; Brkal v. Pletcher, 311 Mich. 258 (1945).