Brinks v. Chesapeake and Ohio Railway Company

• Decision Date: 04 February 1969
• Docket Number: Civ. A. No. 5495.
• Parties: Benjamin J. BRINKS, individually and as Administrator of the Estate of Steven D. Brinks, Deceased, Plaintiff, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia corporation, Defendant and Third-Party Plaintiff, v. Benjamin J. BRINKS, Administrator of the Estate of Gertrude Ann Brinks, Deceased, Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

295 F. Supp. 1318

Benjamin J. BRINKS, individually and as Administrator of the Estate of Steven D. Brinks, Deceased, Plaintiff, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia corporation, Defendant and Third-Party Plaintiff, v. Benjamin J. BRINKS, Administrator of the Estate of Gertrude Ann Brinks, Deceased, Third-Party Defendant.

Civ. A. No. 5495.

United States District Court W. D. Michigan, S. D.

February 4, 1969.

Warner, Norcross & Judd, Wallson G. Knack, Grand Rapids, Mich., of counsel, for Benjamin J. Brinks.

Paul O. Strawhecker, Grand Rapids, Mich., Robert A. Straub, Detroit, Mich., for Chesapeake and Ohio Railway Co.

OPINION

FOX, District Judge.

Plaintiff brings this action individually and as administrator of the estate of Steven D. Brinks, alleging negligence of defendant proximately causing damages in the amount of $150,000. The action arises from an accident where plaintiff's decedent and decedent's mother were killed in a collision with defendant's train. The facts are recited in more detail in the mother's case, C.A. 4702, W.D.Mich., aff'd 398 F.2d 889 (6th Cir. 1968).

Defendant has asserted various affirmative defenses, a counterclaim, and a third party complaint:

Affirmative Defenses:

A. As to Benjamin Brinks, Administrator of the Estate of Steven:

(1) Gertrude Brinks' negligence was the sole proximate cause of the accident.

B. As to Benjamin Brinks, individually:

(1) Gertrude Brinks' negligence was the sole proximate cause of the accident.^*

(2) Gertrude Brinks' subsequent negligence was the sole proximate cause of the accident.^*

(3) The negligence of Gertrude Brinks is imputed to Benjamin Brinks, the owner of the motor vehicle, under M.S.A. 9.2101.^*

(4) Benjamin Brinks was negligent in entrusting the operation of the automobile to Gertrude Brinks.

Counterclaim:

This is against Benjamin Brinks, individually, and realleges A(1), A(2), and B(4) above, and then claims that Benjamin Brinks, as Administrator, is a joint tortfeasor with the defendant and also individually is a joint tortfeasor with defendant in Civil Action No. 4702.

Third Party Complaint:

This is against Benjamin Brinks, as Administrator of the Estate of Gertrude Brinks, and claims that the negligence and subsequent negligence of Mrs. Brinks was a proximate cause of the accident and therefore if any judgment is recovered against the railroad, her estate is to be treated as a joint tortfeasor.

Plaintiff has moved to strike each of the affirmative defenses, summary judgment as to B(4), to dismiss the counterclaim and for summary judgment as to negligent entrustment, and to dismiss the third party complaint. Four issues are raised by plaintiff's motions. Each issue is stated, answered, and the proper disposition made of the relevant motions of plaintiff.

1. Whether defendant may assert an affirmative defense that the negligence of Mrs. Gertrude Brinks was the sole, proximate cause of the accident.

The sole issues in this case are whether the defendant was negligent, whether that negligence was a proximate cause of plaintiff's injuries, and the amount of plaintiff's damages, if any.

The negligence of the mother is not an issue in the case (except as to contribution, which will be tried as a separate issue—see infra). The child is suing the railroad, and the mother's negligence, if any, may not be imputed to the child. Elbert v. City of Saginaw, 363 Mich. 463, 482, 109 N.W.2d 879 (1961).

The court will permit all evidence that it relevant to the issues in the case, as mentioned above. It will not permit, however, the attempt by defendant to try the issue of the mother's negligence rather than its own. Such a complexity of issues is likely to be very confusing to the jury, if not downright prejudicial.

As Justice Eugene Black stated in Conners v. Benjamin I. Magid, Inc., 353 Mich. 628, 91 N.W.2d 875, 878, 67 A.L.R.2d 1001:

"Defendants apparently labor under some misapprehension regarding effect of the father's action or inaction as a causative force. The right of action considered here belongs to the infant plaintiff; no one else. No question of contributory negligence is open to defensive or other consideration. What the father did or did not do is quite irrelevant, the now refined issue being whether it was shown—by a clear preponderance of the evidence —that defendants' negligence * * constituted the, or one of the, proximate causes of plaintiff's injuries."

As Justice Black said further in Elbert, supra: "The studied injection into this child's case of the subject of parental fault, contributory or otherwise, constitutes reversible error." 109 N.W. 2d at 888.

For all these reasons, plaintiff's motion to strike affirmative defense A(1) is hereby granted.

2. Whether defendant has alleged enough facts, which, if proved, would permit a jury to find Benjamin J. Brinks, individually, guilty of negligent entrustment and therefore barred from recovery by the defense of contributory negligence and liable for contribution, as a joint tortfeasor.

Defendant alleges that Benjamin Brinks negligently entrusted the automobile to his wife, and is therefore barred from recovery as an individual due to contributory negligence and liable to contribution to any damages received as administrator. Plaintiff moves for summary judgment under Rule 56, alleging that even if all facts pleaded were proved, no negligent entrustment could be shown.

As a matter of law, proof of negligent entrustment requires establishing two things: (1) that Mrs. Brinks was an incompetent, reckless or careless driver and likely to cause injuries to others in the use of the automobile; (2) that Mr. Brinks knew these facts. Tanis v. Eding, 265 Mich. 94, 96, 97, 251 N.W. 367 (1933); Perin v. Peuler, 373 Mich. 531, 536, 130 N.W.2d 4 (1964).

Assuming defendant could prove knowledge, what facts does it allege make Mrs. Brinks an incompetent and likely to injure others? (1) Three years before the accident Mrs. Brinks was ticketed for speeding and driving without a license; (2) at the time of the accident Mrs. Brinks' license had expired eleven months before. Defendant admits in a memorandum filed December 2, 1968, that no additional facts relative to incompetency have been found.

The prior ticket and the expired license are simply not enough to prove incompetency as defined in Michigan. If an isolated past instance is to be used to show incompetency, it must be a much more serious one than speeding or driving without a license.

Therefore, plaintiff's motion should be granted and all claims of negligent entrustment in the affirmative defenses and in the counterclaim should be dismissed.

3. Whether plaintiff, individually, as owner of the automobile in which deceased was killed, may be liable for contribution as a joint tortfeasor due to Mrs. Brinks' negligence applied to him through the Michigan Owner's Liability statute. (M.S.A. 9.2101.)

Defendant claims Benjamin Brinks, individually, is liable for contribution as a joint tortfeasor because he was the owner of the car which Mrs. Brinks allegedly drove negligently. Defendant cites the Michigan Owner's Liability statute, M.S.A. 9.2101, C.L.Mich.1948, § 257.401 P.A.1949, No. 300, § 401, which makes the owner liable for the negligence of anyone whom he allows to drive his car.

Defendant's claims in this regard are simply not authorized by the law of Michigan. In Geib v. Slater, 320 Mich. 316 at 321, 31 N.W.2d 65, at 67 (1948), the Michigan Supreme Court stated:

"Defendant is guilty of no tortious act; he did not participate in the commission of the tort; and his liability arises only by operation of law. He is not a joint tort-feasor, but his statutory liability is based upon the doctrine of respondeat superior."

This rule was cited with approval in Boucher v. Thomsen, 328 Mich. 312, 43 N.W.2d 866, 20 A.L.R.2d 1038 (1950).

"Later in 1957 in Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585, this language in the Geib case was expressly overruled, and it was decided that the basis of the statutory liability was the police power of the State rather than the doctrine of respondeat superior. This, however, in no way makes the owner of an automobile, held because of the statutory liability, a joint tortfeasor." Varano v. Express Freight Lines, Inc., 176 F.Supp. 71 (E.D.Wisc. 1959). (Emphasis supplied.)

Thus the rule in Michigan remains that an owner negligent only by reason of the ownership liability statute is not a joint tortfeasor. Defendant's counterclaim for contribution must, therefore, be dismissed.

4. Whether the Estate of Mrs. Gertrude Brinks, mother of the deceased, may be liable to third party plaintiff for contribution as a joint tortfeasor.

The third party complaint for contribution raises different issues, and should be tried separately, should plaintiff prevail in the primary action. To require the jury to consider at the same time the railroad's alleged negligence and the mother's negligence, and possible contribution, would be confusing, since the issues in the primary action and the third party action are different.

Furthermore, a time saving may be effected should the defendant prevail in the primary action, since no trial would then be necessary on the third party action.

Therefore, the court in its discretion orders that the third party complaint for contribution be separated, and decided,...