Automobiles, § 20- unregistered car as nuisance.

2. An unregistered automobile will be assumed to be a nuisance when upon a public highway, in an action to

recover damages for injuries resulting from a collision with it.

[See 2 R. C. L. 1208; 1 R. C. L. Supp. 745; 4 R. C. L. Supp. 160; 5 R. C. L. Supp. 149. See also notes in 16 A.L.R. 1117; 35 A.L.R. 68.]

of the court.

N. E. 25; Dean v. Boston Elev. R. Co. 217 Mass. 495, 105 N. E. 616;

Rugg, Ch. J., delivered the opinion of the court:

This is an action of tort to recover damages sustained by the plaintiff through the collision at intersecting streets of an automobile owned and driven by him, with another automobile owned and driven by the defendant. The automobile of the defendant was not registered and he had no license as an operator. The jury were instructed that the defendant at the time of the collision was an outlaw and trespasser on the highway, that his automobile was a nuisance, and that they need not consider whether the plaintiff was guilty of gross negligence or of wilful misconduct. In answer to a special question, the jury found that want of due care on the part of the plaintiff contributed directly to his damage. Thereupon a verdict was directed for the defendant. The correctness of this ruling is reported for our determination.

due care to

That

necessity of recover against

automobile nuisance.

Mass. 105, 110, 123 N. E. 398; Washburn v. Union Freight R. Co. 247 Mass. 414, 142 N. E. 79. fact has important effects upon the rights of the defendant to recover for injuries done him by others. The plaintiff as a traveler on the highway cannot recover of the defendant for damage caused by a nuisance maintained on the highway, without showing that his own want of care did not directly contribute to that damage. This is the rule of our own cases. The question was clearly decided in Smith v. Smith, 2 Pick. 621, 13 Am. Dec. 464. It has been followed in Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694, and Sherman v. Fall River Iron Works Co. 2 Allen, 524, 526, 79 Am. Dec. 799. Doubtless it has been accepted without question as a settled principle in the trial of many causes. Practical experience has established it as a custom regulating conduct. It seems to us to be supported by the great weight of authority. Parker v. Union Woolen Co. 42 Conn. 399, 402; Baltimore v. Marriott, 9 Md. 160, 176, 66 Am. Dec. 326; Irwin v. Sprigg, 6 Gill, 200, 205, 46 Am. Dec. 667; Crommelin v. Coxe, 30 Ala. 318, 329, 68 Am. Dec. 120; Butterfield v. Forrester, 11 East, 60,

103 Eng. Reprint, 926, 19 Eng. Rul. Cas. 189; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52, 57.

There is much to be said in favor of this rule as an abstract principle. The congestion upon highways has become so great that the general public safety seems to demand that there be no relaxation of the requirement of due care on the part of all travelers.

Doubtless in many, and perhaps in most, aspects of the law of nui

sance, the element of his due care has no relevancy to the right of a plaintiff to recover compensation for his injuries, or to invoke the aid of equity for abatement of the source of his harm. See Boston Ferrule Co. v. Hills, 159 Mass. 149, 20 L.R.A. 844, 34 N. E. 85. The case at bar does not call for an exposition of these principles.

There was no error in the decisive rulings or refusals to rule by the trial judge.

Judgment for defendant.

This annotation supplements earlier annotation on this subject in 16 A.L.R. 1108, and 35 A.L.R. 62.

As to liability where automobile is loaned to person not licensed as required by statute, see annotation in 36 A.L.R. 1152; and as to liability of parent who gives automobile or motorcycle to minor child forbidden by statute to operate same, for negligent use thereof by child, see annotation in 36 A.L.R. 1164.

Texas has now followed the generally established rule that one who sustains injuries to his person or property by the negligence of another while using or riding in an unlicensed automobile is not precluded from recovering by reason of the failure to comply with statutes in effect providing that motor vehicles shall be registered, and shall not be operated on the highway unless they are registered, where the failure to register in compliance with the statute had no causal connection with the injury. St. Louis, B. & M. R. Co. v. Price (1925) Tex. 269 S. W. 422, affirming (1922) Tex. Civ. App. —, 244 S. W. 642, holding that the plaintiff's failure to register his car was not the proximate cause of his injury, and observing that the legislature did not intend to relieve railway com

panies of the duty of looking out for automobiles, or of exercising ordinary care to prevent injuries at public crossings.

The rule was applied in Pyeatt v.

Anderson (1925) Tex. -, 269 S.

W. 429, affirming (1924) Tex. Civ. App., 264 S. W. 302, so as to permit recovery by a person operating a motorcycle without its owner's consent, notwithstanding violation of a statute in so operating it.

A surety has been held not to be liable, upon a bond under which he undertook to pay damages inflicted by the wrongful, negligent, or unlawful use or operation of a jitney bus, for an injury which resulted from the operation of the bus without its jitney card, being used for a family purpose, rather than for hire. Caines v. Wheeler (1925) – Ky., 268 S. W. 1098. (Generally as to liability on bond as affected by territory in which vehicle was being operated, see annotation in 22 A.L.R. 890.)

In the reported case (BROWN v. ALTER, ante, 1036) the court adheres to the Massachusetts doctrine that an unregistered car on the highway is an outlaw and a nuisance, and bases the nonliability of the owner and operator upon the ground of plaintiff's contributory negligence. E. W. H.

the opinion of the board that Act 173 of the Laws of 1921 was applicable, and made the city liable.

On certiorari to this court the city contends that the act is not applicable, and that the board was in error in awarding plaintiff compensation against it.

Part 1, § 10, subd. (a), of the act referred to, provides: "Where any employer subject to the provisions of this act (in this section referred to as the principal), contracts with any other person (in this section referred to as the contractor), who is not subject to this act and who does not become subject to this act prior to the date of the accidental injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him. . . ." Laws 1921, Act 173.

Under this provision it becomes necessary to determine whether the city would have been liable if Keagle had been directly employed by it.

The Compensation Law has been generally construed by this court as not applying to accidents which befall employees in going to and leaving the place of employment. Hills v. Blair, 182 Mich. 26, 148 N. W. 243, 7 N. C. C. A. 409; Hopkins v. Michigan Sugar Co. 184 Mich. 87, L.R.A.1916A, 310, 150 N. W. 325. Some exceptions have been made to this rule under the particular circumstances of the cases. Instances of these exceptions are: Beaudry v. Watkins, 191 Mich. 445, L.R.A. 1916F, 576, 158 N. W. 16; Clifton v. Kroger Grocery & Baking Co. 217 Mich. 462, 187 N. W. 380; Kunze v. Detroit Shade Tree Co. 192 Mich.

435, L.R.A.1917A, 252, 158 N. W. 851.

"In one sense, it may be said to be a part of his duty to get to such place, but if this method of traveling is not controlled by the employer, if he is a free agent, it is thought this qualified duty is not sufficient to raise, at the time, the relation of employer and workman.

"The same may be said with respect to the time occupied in returning home from work, and of intervals allowed for meals, when spent off the employer's premises." Ruegg, Employers' Liability & Workmen's Comp. p. 377.

Applying this rule as construed by the court, was Keagle, when killed, within the zone of the Compensation Law? Keagle_had been dismissed for the day. He was on his way home, or to the Avery barn. When injured, he had left the vicinity of the work and was three quarters of a mile distant. After he left his work, he was no longer under the direction or control of the city. He was on no errand for the city, and was as much beyond the jurisdiction of the city when killed as though he had been 10 miles away. We think, under no reasonable consider- Workmen's compensationation of the conced- injury to driver ed facts, can it be leaving work. said the accident

of team after

arose out of and in the course of his employment. We are of the opinion that Act 173 is not applicable.

It is argued that the case of Punches v. American Box Board Co. 216 Mich. 342, 185 N. W. 758, is in point. That case is easily distinguishable from the present one. In that case Punches was an employee of the American Box Board Company, and was in control of the team, in the direct line of his duty, when the accident happened to him.

The award against the city of Battle Creek must be set aside.

It is the purpose of this annotation to consider the right of a teamster, truckman, or driver of a delivery vehicle to recover under a workmen's compensation act for an injury received before or after working hours. As thus outlined, the annotation consists in substance of cases where the injury is received on the way to or from work, or during the lunch hour of the employee.

In this connection the following extract, though from a case not within the scope of this annotation, is of value: "The employment is not limited to the exact moment when the workman reaches the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Whether an employee in going to or returning from the place of his employment is in the line of his employment is governed and controlled by the particular circumstances and facts of each case." Indian Creek Coal & Min. Co. v. Wehr (1920) 74 Ind. App. 141, 128 N. E. 765.

In the following cases, the facts and circumstances have been held not to warrant a recovery by the teamster, truckster, or the like:

Thus, in the reported case (MOREY V. BATTLE CREEK, ante, 1039) it appeared that the husband of the plaintiff, who was employed to drive a working team, was sent by his employer to work for the city of Battle Creek. Late in the afternoon he was informed by the officer in charge of the city work that it was too late to get another load of dirt, and that he could go home. On the way from his work the horses ran away and he was thrown out and killed. It is held that as he had left his work and was on his way home, 38 A.L.R.-66.

the accident did not arise out of and in the course of his employment.

In Morris & Co. v. Industrial Commission (1920) 295 Ill. 49, 128 N. E. 727, it appeared that one was employed by the plaintiff in error to drive and operate a motor truck for the delivery of meat to customers, make collections and turn the money in to the employer's bookkeeper, after which he was to drive the truck back to the barn. The evidence showed that after he had turned in the money collected by him he requested another employee to drive the truck to the barn, and while accompanying him fell from the seat to the pavement and was killed. It was held that the employee had ceased to perform the duties required, and that the injury did not arise out of his employment. The court said: "It is not sufficient that the injury arose in the course of the employment. This accident occurred in the course of the employment, and while the truck was being driven to plaintiff in error's garage, which was a duty of Byers's employment. He was not driving the truck, which was his duty under his employment, but was sitting beside another man, who was performing that duty. It is true the truck was traveling the route it would have traveled had Byers been driving, but he was not driving it, as the duties of his employment required. The decision of the question under the peculiar and unusual state of facts is not entirely free from difficulty, but as the proof shows Byers was not, at the time of the injury, engaged in the performance of the duties of his employment, it cannot be said the accident arose out of the employment. In the Eugene Dietzen Co. Case (1917) 279 Ill. 11, 116 N. E. 684, Ann. Cas. 1918B, 764, 14 N. C. C. A. 125, it was said if an employee chooses to step outside the sphere of his employment and do something not expected or re