The jury found, however, evidently because of some statements made by the father, that he had paid a part of the purchase price and was a part owner. The license for the car was obtained by the son and is in his name. Repairs to the car and expenses for maintaining it were paid for by the son. The father never drove it and rarely rode in it. No one but the son ever drove it. [4] But assuming that George Kelly was part owner of the car, he is not liable to the plaintiff in this action. The statute (Act No. 302, Public Acts 1915) is a part of chap-| ter 89 of the Compiled Laws of 1915, entitled "Motor Vehicles." Section 29 of the act (section 4825) reads: "Civil Actions. Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligence of the owner or operator or his agent, employé or servant, of any such motor vehicle, or resulting from the negligent use of the highway by them or any of them. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this state or in the failure to observe such ordinary care in such operation as the rules of the common law require: Provided, that the owner shall not be liable unless said motor vehicle is being driven by the express or implied consent or knowledge of such owner. In the event said motor vehicle is being driven at the time of said injury by the father, mother, brother, sister, son, daughter, or other immediate members of the family of the owner of said motor vehicle, then it shall be conclusively presumed that said motor vehicle is being driven by the consent or with the knowledge of such owner." It is said by the plaintiff, appellee, that this section makes the owner liable if the car is driven with his knowledge and the defendant does not contend that this provision is unconstitutional. It is further argued that if George Kelly was a part owner he would be liable under this section"without any reference whatever to the question of his relationship to Ira Kelly, the other defendant, for the reason that George Kelly, as above stated, had constant knowledge that his son, Ira Kelly, was driving the car. This being true, the remaining portion of the section where in it is provided that the owner's consent shall be conclusively presumed if the car is being driven by the son, as in this case, would in no wise affect the interests of the defendant George Kelly, for the judgment against him was not predicated upon that provision of the act." It is a lawful thing for two persons to buy and own an automobile. Either owner has the right to use the car, the consent of the other being implied if there is no express agreement respecting the use to be made of it. Either owner could use it by driving it himself, or he could have an agent, employé, or servant to drive it. It is evident that the Legislature intended that the owner of a car should be liable for the consequences of his own negligent driving and for the negligent driving of those whom he permits to drive it. In the main, the statute declares the rule of the common law, and there lies at the foundation of the statute and of the common-law rule the fact that the owner of a car may choose his agents and employés and may control possession of the vehicle. It is not evident that the Legislature intended to make each part owner of a car liable for the consequences of the negligent operation of it by a co-owner or his agent or employé. In the first place, the foundation for such a rule does not exist, since a part owner of an automobile may not choose the agents or employés of the other owner, nor control possession of the car by the co-owner. In the second place, the language of the law, fairly interpreted, does not evidence a purpose to visit upon an ownby persons whose custody and possession of er the consequences of negligence committed the car he may not and cannot control. In the third place, it may be said that it is at least doubtful whether the legislative power extends to visiting upon the citizen consequences of tortious actions which he cannot prevent or control. In the case at bar, an owner had possession of and was operating the car. He is liable for the consequences of his own negligent driving, and as to him we find no reason for As to the other disturbing the judgment. owner, we are of opinion that the judgment should be reversed. PAPERNO v. MICHIGAN RY. ENGINEERING CO. (No. 182.) (Supreme Court of Michigan. July 18, 1918.) 1. EXECUTORS AND ADMINISTRATORS 29(2) -COLLATERAL ATTACK-APPOINTMENT. In an administrator's action for the wrongful death of his decedent, wherein the decree of the probate court appointing him is attacked court may not retry the question of residence, collaterally on the ground of nonresidence, the the probate court having acquired jurisdiction. 2. EXECUTORS AND ADMINISTRATORS ESTATES OF ALIENS-APPOINTMENT OF FOREIGN CONSUL. 24 The "most favored nation" clause in the Russian-American Treaty of 1832 (article 8), considered in connection with the treaty with the Argentine Confederation (10 Stat. 1005, art. 9), does not confer on Russian consuls the power to administer estates of Russian subjects. 3. EXECUTORS AND ADMINISTRATORS 20(3) -APPOINTMENT-RIGHT TO PETITION-FOREIGN CONSULS. The Russian consul may, under the law of duty to conserve the estate and as representanations and doctrine of comity because of his tive of the next of kin, petition for the appointment of an administrator for the estate of a deceased Russian subject, where the next of 4. MASTER AND SERVANT 286(22)—INJUkin are also Russian subjects. RIES TO SERVANT-UNCOVERED THIRD RAIL -QUESTIONS FOR JURY. In an action for wrongful death of a railroad employé, due to coming in contact with a "third rail" which ought to have been covered, evidence held not as a matter of law to show that defendant was not negligent. 5. DEATH DENCE. 75-ACTION-DEPENDENTS-EVI- rail. It is claimed that defendant was neg In an action under the Death Act for the death of a railroad employé electrocuted by coming in contact with a third rail, evidence held to support a finding that he left surviving him a mother towards whose support he con64-ACTION-EVIDENCE-COMPE tributed. 6. DEATH TENCY. In an action under the Death Act, evidence that decedent had gone to the bank to send money to his mother was competent to show that he contributed to her support. 7. DEATH 64-ACTION-EVIDENCE-COMPE CAUSE OF DEATH. Where a railroad employé was killed by coming in contact with a charged third rail, evidence in an action under the Death Act held to make it a question for the jury whether the direct cause of death continued to operate until life was extinct. Error to Circuit Court, Kalamazoo County; Geo. V. Weimer, Judge. Action by Solomon G. Paperno, as administrator, etc., against the Michigan Railway Engineering Company, a Michigan corporation. Judgment for plaintiff, and defendant brings error. Affirmed. Argued before BIRD, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ. Alfred J. Mills, of Kalamazoo, for appellant. Asher L. Cornelius, of Detroit, for appellee. FELLOWS, J. Plaintiff's decedent, a Russian subject, was killed on May 15, 1915, while in the employ of the defendant. The parties were not operating under the Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10). Defendant was constructing an electric line from Kalamazoo to Grand Rapids. The line had not been put in operation for the public, but it was sufficiently complete so that cars were being run over it. It was operated by the "third rail" system, carrying 2,400 voltage. The third rail was from 30 to 32 inches from the track rail. The gang with which decedent was working was engaged in aligning the track. Decedent and others were between the third rail and the track rail with iron bars preparing to heave the track over on receiving the signal so to do. In some way deceased fell, his foot coming in contact with the third rail; there is also some testimony that the iron bar which he held in his hand came in contact with both the third rail and the track ligent in not providing a safe place and safe tools with which to work; that it should have covered the third rail to protect the employés working near it when it was so heavily charged with electricity, and should have provided insulated tools with which to work. The accident occurred in Allegan county, where the gang was then staying, and plaintiff was appointed administrator by the probate court of that county on the 14th day of January, 1916, on petition of Antoine Wolff, Imperial Russian consul for the consular district within which this state is included. We shall have occasion to detail the facts more fully as we proceed. [1] Defendant insists that the plaintiff may not maintain this action for the reason that he had not been validly appointed administrator of the estate of decedent. It is pointed out that the proof shows decedent to have been a resident of Kalamazoo, and but temporarily in Allegan county when he met his death; it is also insisted that the Rus sian consul for this consular district had not sufficient authority to confer jurisdiction by his petition on the probate court for Allegan county to make the appointment. It must be borne in mind that we are not here dealing with an appointment of a special administrator, or the issuance of ancillary letters of administration, which are ex parte, and both without notice or hearing, nor with a direct proceeding to review the judgment of the probate court. The question here raised is by collateral attack upon a decree of the probate court. Upon such attack the court may not retry the question of residence. Carney v. Carney, 165 N. W. 791. If however, the probate court acquired no jurisdiction under the petition filed another question is presented. We do not understand it to be claimed that the proceedings of the probate court of Allegan county do not comply with the statute, nor that decedent had any near relatives within this jurisdiction. [2] Plaintiff insists that by treaty with Russia, the right to administer the estate of Russian subjects dying in this country is given to the Russian consul. By the treaty of 1832, between this country and his majesty the Emperor of all the Russias (Senate Documents, vol. 48, 61st Cong. Treaties, Conventions, etc., vol. 2, p. 1517), it was provided by article 8: "The two contracting parties shall have the liberty of having, in their respective ports, consuls, vice consuls, agents and commissaries, of their own appointment, who shall enjoy the most favored nations. same privileges and powers, as those of the *" 8 Stat. 448. By this provision the Russian consuls were given the privileges and powers of the consuls of the most favored nations, thus provisions in the treaties between this and other countries granting powers to consuls gave to Russian consuls the powers of consuls of these most favored nations. The treaty concluded between this country and the Argentine Confederation of July 27, 1853 (10 Sts. at Large, 1005), gives broad powers to the consuls of that republic. Such powers as are given by the Argentine treaty inure to the benefit of Russian consuls under the "most favored nations" clause. By article 9 of the last-named treaty it is provided: "If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul general, or consul of the nation to which the deceased belonged, or the representative of such consul general or consul, in his absence, shall have the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs." is that, in such a case, the consul of the coun- The court sustained the right of the public administrator to the appointment; but it is worthy of note that in the concluding portion of the opinion, in discussing the duty and rights of the consul, the court said: "He has, in addition, a duty pertaining to his office imposed upon him by his own government, that of seeing to the safe-keeping and proper disposition of the effects of citizens of his country who may die while traveling, or while temporarily present in the country to which he is accredited, or even while residing therein, and for that purpose, in the absence of any other representative of the deceased having a better right, he may 'intervene in the possession' of the estate, conformably with the laws of the country. The custom of nations would permit this and it may be that, if the public administrator refuses or fails to apply, the consul may petition for and receive letters to himself as the official agent for the persons interested." The question of the power and privileges of consuls under the most favored nations clause has not been before the courts with The case went to the Supreme Court of the any degree of frequency. In some cases the right of the consul perforce of his office to United States, where it was affirmed. Rocca be appointed administrator of the estates of V. Thompson, 223 U. S. 317, 32 Sup. Ct. 207, the subjects of his sovereign has arisen. In 56 L. Ed. 453. The case deals extensively Wyman, Petitioner, 191 Mass. 276, 77 N. E. with the subject and the construction of the 379, 114 Am. St. Rep. 601, and in Carpigiani word “intervene" found in the treaty with the v. Hall, 172 Ala. 287, 55 South, 248, Ann. Cas. Argentine Republic. The language of that 1913D, 651, such right was upheld. In the treaty was construed not to give to the consul Massachusetts case the question arose be- the right to administer the estate, and the tween the consul and the public administra-law of California, with reference to administor provided for by the laws of the state. In Re Fattosini's Estate, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119, and in Re Lobrasciano's Estate, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040, the surrogate's court for Westchester, county, N. Y., upheld such right, while in Re Logiorato's Estate, 34 Misc. Rep. 31, 69 N. Y. Supp. 507, the right of the consul as a right was denied, but the consul was appointed. We shall have occasion to refer to this case later. In Lanfear v. Ritchie, 9 La. Ann. 96, the right was denied. The Supreme Court of California, in Estate of Ghio, 157 Cal. 552, 108 Pac. 516, 37 L. R. A. (N. S.) 549, 137 Am. St. Rep. 145, denied the right of the consul to be appoint ed administrator. As this case was reviewed in the United States Supreme Court and is the case in which that court construed the clause of the Argentine Treaty, above quoted, the case is of prime importance. The state of California has a public administrator. By its statutes he shall act as administrator in the absence of next of kin entitled to inherit. The deceased was a subject of Italy, the consuls of which nation by its treaty with this country were entitled to the benefit of the most favored nations clause. Both the Italian consul and the public administrator petitioned for appointment as administrator. The court thus clearly stated the issue: "Our law declares that in the absence of next of kin entitled to inherit, the public administrator shall take charge of and administer the estate for the benefit of the creditors tration by the public administrator, was held to control. We must therefore assume that the law is settled that the consul of the Russian government, perforce of the treaty with this country, was not entitled to administer this estate. [3] But our problem in the instant case is but partially solved when we have reached this conclusion. There still remains the question for solution as to whether the consul, perforce of his official position, may initiate probate proceedings by petitioning for administration of the estate of a deceased subject of his sovereign, and where, as here, the next of is accredited. This involves his powers and kin are subjects of the country from which he privileges under the law of nations and the doctrine of comity: and by statute, the provisional conservator of "A consular officer is, by the law of nations the property within his district belonging to his countrymen deceased therein." 2 Cyc. 271. "A foreign consul, without specific authority, has the general right to protect the rights and property of persons of his nation within the jurisdiction of his consulate, and he may bring suits for such purpose without any special authority from the parties in interest." 2 C. J. 1307. "One of the most important duties pertaining to the office of a consul and imposed upon him by his own government is that of seeing to the safe-keeping and proper disposition of the effects of citizens of his country who may die while traveling or while temporarily present in the country to which he is accredited or even while residing therein. In the absence of any other representative of the deceased having a better right, a consul is authorized to inter to the laws of the country. There can be no possible doubt concerning the general propriety of such a practice. The duty, and by comity the authority, of a consul to receive and care for the personal estate of a citizen of his own country who may die within his consulate, and to protect the estate from spoliation, is prescribed and recognized by all civilized nations." 9 R. C. L. 158. Secretary of State Marcy, in a letter to Mr. Aspinwall on August 21, 1855, after requesting consuls of our government to act as administrators of the estates of deceased citizens of this country who die in foreign countries, said: "Indeed, this is one of the most sacred and responsible trusts imposed by their office, and in this respect they directly represent their gov ernment in protecting the rights and interests of the representatives of deceased citizens." Wharton, International Law Dig. vol. 1, p. 782. Recurring again to In re Logiorato's Estate, supra, we find that while the court there construed the treaty with the Argentine Republic, as later did the United States Supreme Court, and therefore held that, perforce of his official position, the consul was not entitled to the appointment as administrator, an examination of the case discloses that the petition for the administration of the estate was made by the consul and the consul was appointed administrator; the real question in the case was whether the consul, if appointed, should be required to give a bond. The cases quite unanimously agree that where a foreign consul is appointed he should be required to give the usual administrator's bond, as are other administrators, and we think such is the established practice. While the Supreme Court of Louisiana held in Lanfear v. Ritchie, supra, that the consul was not entitled to the appointment as administrator, in the later case of Succession of Rabasse, 47 La. Ann. 1452, 17 South. 867, 49 Am. St. Rep. 433, the same court had before it the right of the French consul, under the treaty between this country and France, to appear for French heirs in a proceeding in which they were interested. The court sustained such right, and held that the consul had the same right to represent them, by force of the treaty and his office, that he would have had by force of express authority from them; the court saying: "In our view the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs." The Supreme Court of the United States in 1821 fixed the status of foreign consuls in the case of The Bello Corrunes, 6 Wheat. 152, 5 L. Ed. 229. The court there said: "On the first point made by the Attorney General, this court feels no difficulty in deciding that a vice consul duly recognized by our government is a competent party to assert or defend the rights of property of the individuals of his nation, in any court having jurisdiction of causes affected by the application of inter terests of their subjects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it." But the court, having fixed the right of the consul to institute proceedings in court, further said: "Whether the powers of the vice consul shall in any instance extend to the right to receive, in his national character, the proceeds of property libeled and transferred into the registry ciples. In the absence of specific powers given of a court, is a question resting on other prinhim by competent authority, such a right would certainly not be recognized." This state recognizes the right of consuls to notice of probate proceedings where there are subjects of foreign countries interested. Section 13837, C. L. 1915. We conclude, therefore, from our examination of this question, that this consul of the Russian government, perforce of both his duty to conserve the estate of a deceased subject of his government, and as representative of the next of kin who were also subjects of his government, had the right to institute proceedings for the appointment of an administrator. [4] Defendant insists that there was no evidence of negligence. This was one of the reasons assigned in the motion and requests for a directed verdict and for judgment non obstante under the Empson Act. Act 217, Pub. Acts 1915. We cannot agree with this contention. There was testimony pro and con by men experienced in railroading on this subject, most of it directed to the question of covering the third rail so as to prevent contact with it while employés were working in close proximity to it. The third rail was protected on both sides and defendant had provided a plank or board to cover over the top of the rail to prevent injury to employés by contact with it when they were performing certain kinds of labor. It was not so protected on this occasion. Defendant insists that in aligning the track they moved from place to place so frequently as to render this covering of the track impractical. We do not think the testimony makes out a case where we can say, as matter of law, that defendant's claim, that under all the testimony its negligence is not proven, is undisputed. It is not made to appear that on these occasions when the track was covered the dangers were so much greater than on the occasion in question as to prompt a covering of the third rail on one occasion and not on another. One of the witnesses testified: "When the bosses were coming, the road mas to cover up the third rail but when there wasn't anybody there they didn't have to cover up." While an employé of defendant and who, from his testimony, appears to have been its engineer or in charge of construction, among other things, testified: * "Working around this rail is a hazardous occupation, so dangerous that when we call our men to shovel anywhere around it we make a practice of guarding the rail with a board on top of it. * We kept all our men away from the third rail, and the work was done more from the center of the track than the ordinary third rail road would be. On the ordinary third rail road with a low voltage they don't pay very much attention to the third rail itself, but in our case we had to-we did our work very much different, to keep them in the center between the rails. One of the differences in doing the work was, in aligning the track we kept our men in the center of the track more than would be customary with the ordinary railroad. Another difference was, if a man, if a man had to, in an ordinary third rail road, he would simply work around the third rail and step back and forth over it and pay no attention particularly to it, but in our case, if a man had any business on the third rail or around it, we covered the rail so he could not come in contact with it." We cannot say upon this record that no negligence of the defendant was proven; this third rail carrying a high voltage was exceedingly dangerous; contact with it meant almost certain death. Defendant was put to work in the space between it and the running rail from 30 to 32 inches wide. It had been raining and the ground was slippery. "The handling of electrical currents of high voltage is a business extremely hazardous, and those engaged in that business are charged with the duty of exercising a very high degree of care for the protection of life." Huber v. Twin City Gen. Elec. Co., 168 Mich. 531, 134 N. W. 980. The case was submitted to the jury on the theory that if death was instantaneous the Death Act (Comp. Laws 1897, § 10427) applied and the measure of damages recoverable under that act was stated to the jury. The case was also submitted to the jury upon the theory that if they did not find the death to be instantaneous then the recovery, if one was had, must be under the Survival Act (Comp. Laws 1897, § 10117), and the measure of damages under that act was stated to the jury. There is testimony that on three occasions [9] There was a sharp conflict in the testimony as to whether the direct cause of the death continued to operate directly upon the injured person until life was extinct. The jury would have been justified in finding from some of the testimony that decedent had expired when he was removed from the third rail and contact with the current ceased, and that such evidences of life as [5-8] Defendant insists that there can be continued were but spasmodic muscular no recovery under the Death Act, because movements. On the other hand, there was there is no competent evidence that deceased testimony that decedent continued to breathe left dependents toward whose support he for some 17 or 18 minutes after he had been contributed; nor may there be a recovery removed from the third rail and the direct under the Survival Act, because the evidence cause of death had ceased to operate directly shows conclusively that death was instanta- upon him; that on three occasions during neous, and that therefore no recovery may this time, and a few minutes apart, he used be had under either act. The evidence dis- a Russian expression equivalent to our excloses that decedent left surviving him a pression of pain, "Oh!" the first two of these mother, aged 63 years, a resident of Russia. quite strong and the third in a whisper; and There was testimony by a witness who knew that at the expiration of the time above statand lived near decedent and his mother in ed he looked around at his companions, sevthe old country that she worked a small eral of whom were Russians, sighed and |