Bertolotti v. MacOmb County , 20 Mich. App. 162 ( 1969 )

20 Mich. App. 162 (1969) 173 N.W.2d 723

BERTOLOTTI
v.
MACOMB COUNTY

Docket No. 5,366.

Michigan Court of Appeals.

Decided November 25, 1969.

Calvin C. Rock (Norman L. Zemke, of counsel), for plaintiffs.

Blomberg & Snapp, for defendant Macomb County.

Before: LESINSKI, C.J., and HOLBROOK and QUINN, JJ.

QUINN, J.

Plaintiffs' complaint alleged that on December 9, 1966, their motor vehicle was struck by a motor vehicle owned by Frederick Pommerenk and driven by Marion Pommerenk in the course of her employment by defendant county. Plaintiffs further alleged that they suffered injuries as a result of the negligent operation of the Pommerenk vehicle.

Individual defendants answered and admitted ownership and operation of their vehicle. They further admitted that the accident occurred while Marion Pommerenk was in the course of her employment by defendant county.

Defendant county moved for accelerated judgment, GCR 1963, 116. The motion admitted that the Pommerenk vehicle was owned by Frederick Pommerenk and that it was being driven by Marion Pommerenk in the course of her employment by defendant county at the time of the accident. However, defendant county alleged that at the time of the accident, Marion Pommerenk was not driving a vehicle owned by the county and that under the provisions of MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.), the county was immune from liability. Plaintiffs filed an affidavit alleging that the county paid Marion Pommerenk mileage to compensate her for the use of the vehicle and thus the county was the owner under MCLA § 257.37 (Stat Ann 1968 Rev § 9.1837).

At the hearing on the motion, it was not disputed that the county paid Marion Pommerenk mileage. The trial court granted the county's motion and plaintiffs appeal.

MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.) establishes the liability of the state and its political subdivisions for negligence. Pertinent here is § 691.1405 which reads:

"Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948."

MCLA § 257.37 (Stat Ann 1968 Rev § 9.1837) reads:

"``Owner' means: (a) Any person, firm, association or corporation renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period of greater than 30 days."

Neither the statute nor case law defines "renting". In construing the statute, we are bound to give that word its common and approved meaning. MCLA § 8.3a (Stat Ann 1969 Rev § 2.212[1]); American Telephone & Telegraph Company v. Employment Security Commission (1965), 376 Mich. 271. Webster's Third New International Dictionary defines renting as the present participle of rent, and it defines rent as "To take and hold under an agreement to pay rent". Here the county neither took, nor held, nor had, exclusive use of the Pommerenk vehicle. It was not an owner as defined by MCLA § 257.37 (Stat Ann 1968 Rev § 9.1837).

We also note that the Supreme Court held in Brown v. Cleveland Tractor Co. (1933), 265 Mich. 475, under identical statutory wording that payment of mileage by an employer to an employee for use of the employee's vehicle in the employer's business did not make the employer an owner within the statute.

Affirmed. No costs are allowed, defendant county not having filed a brief on time.

All concurred.