Supreme Court of United States.
Mr. Henry L. Lyster, with whom Mr. John C. Donnelly was on the brief, for plaintiff in error.
Mr. Silas B. Spier for defendant in error.
*40 Memorandum opinion by direction of the court, by MR. CHIEF JUSTICE WHITE.
This action, brought in the state court to recover for personal injuries and other damages, was removed by the defendant to the Circuit Court of the United States on the ground of diverse citizenship, and there tried, resulting in a verdict and judgment for the plaintiff. Direct error is prosecuted to that court (now the District Court) because of the asserted repugnancy of the following statute of the State upon which the recovery was based, to the due process clause of the Fourteenth Amendment:
"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 provisions 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 not be so liable in case such motor vehicle shall have been stolen." (Act No. 318, Pub. Acts 1909, subd. 3, ยง 10.)
The injuries complained of, were caused by the negligence *41 of a chauffeur in operating an automobile owned by the defendant company, resulting in a collision on the highway with plaintiff's horses and the cart in which he with two others were riding. Although the driver of the automobile was in the employ of the defendant company as a car tester and chauffeur, he was not at the time of the accident (about midnight) engaged in the company's business, but had taken the car without the knowledge or consent of the company and in violation of its rules for the purpose of pleasure-riding with his friends. Under these facts, aside from the statute, the court below charged the jury, and it is not here disputed, that the plaintiff could not recover under the law of Michigan for the injuries suffered, and hence that his right to recover, if any, was exclusively under the statute.
The duty of considering the contention here urged, the unconstitutionality of the statute, is rendered unnecessary by decisions of the Supreme Court of the State since the trial of this case in which the statute was held void because in conflict with both the state and the United States constitutions. Daughtery v. Thomas, 174 Michigan, 371; Barry v. Metzger Motor Car Company, 175 Michigan, 466. We say this because while it is undoubtedly our duty to decide for ourselves whether the statute is repugnant to the Constitution of the United States, we must accept the ruling of the state court as to the repugnancy of the statute to the state constitution. As the effect of the state decision on that subject is to determine that ab initio the statute was void, and as there was admittedly no right to recover in the absence of a valid statute, the obvious duty to reverse results.
There is a suggestion in the argument that prior to the decisions of the state court to which we have referred which expressly held the statute to be unconstitutional there had been a ruling of that court deciding it not to be repugnant to the state constitution. Johnson v. Sergeant, *42 134 N.W. Rep. 468. But it is to be observed that as to that ruling the court in the Daugherty Case declared that the statement as to the constitutionality of the statute made in the Johnson Case was merely obiter. Even however, if this were not the case, we cannot now treat as existing, a statute which the court of last resort of the State declares cannot be enforced compatibly with the state constitution. And as here there is no claim of rights acquired under contract in the light of a settled rule of state interpretation of a state law or constitution, there is no foundation whatever for upholding assumed rights which can alone rest upon the existence of a state statute when the state court of last resort has held there is no valid statute to sustain them.
Reversed.
