Frazier v. Rumisek
| Decision Date | 04 January 1960 |
| Docket Number | Nos. 62-64,s. 62-64 |
| Citation | 358 Mich. 455,100 N.W.2d 442 |
| Parties | Russell E. FRAZIER, Plaintiff-Appellant, v. Katherine A. RUMISEK and Kenneth Loucks, Defendants-Appellees. Barbara June FRAZIER, Plaintiff-Appellant, v. Katherine A. RUMISEK and Kenneth Loucks, Defendants-Appellees. Shirley Baldwin DAVIS, Plaintiff-Appellant, v. Katherine A. RUMISEK and Kenneth Loucks, Defendants-Appellees. |
| Court | Michigan Supreme Court |
Sigler, Anderson & Carr, Lansing, for plaintiffs and appellants.
Gemuend & Barnes, Ionia, for defendant and appellee.
Before the Entire Bench, except CARR and KAVANAGH, JJ.
This case 1 relates to an owner's statutory liability 2 for injuries occasioned by the negligent operation of a motor vehicle.
On December 25, 1953, Martin Rumisek was involved in an accident while driving an automobile he owned jointly with his wife. He was killed in the accident and his estate closed on May 10, 1954. On June 30, 1954, the plaintiffs, who had been injured in the accident, petitioned the probate court to reopen the estate but in this effort they met the vigorous opposition of counsel and the petition was denied. On February 17, 1956, they brought suit under the statute against his widow, Katherine Rumisek. Issue was joined and pre-trial had in due course. Later, and subsequent to the running of the statute of limitations, a motion to amend the answer on the ground, in substance, that the cause of action was joint with the deceased Martin Rumisek, and for dismissal because of failure to join, was heard. This was denied by the trial court. Before, however, the cases reached trial, Katherine Rumisek was herself killed in an automobile accident. The plaintiffs' motion to substitute the executor of her will as a party defendant was denied on the ground that such liability did not survive at common law, nor did it come within the scope of the survival statute. C.L.1948, § 612.32 [Stat.Ann. § 27.684].
The owner liability statute before us was passed in response to an overwhelming public need. Common law liability, circumscribed as it was by the the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585, was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use. The liability is broader than that imposed by the doctrine of respondeat superior, and to the degree that older cases, including Mittelstadt v. Kelly, 202 Mich. 524, 168 N.W. 501, and other like cases referred to in Moore v. Palmer, supra, are based upon the respondeat superior doctrine, they were held, by Mr. Justice Edwards, with whom we concurred, to be 'expressly overruled.'
It has been agrued that, since the automobile in this case was owned jointly, any liability under the statute would be joint only, requiring joinder of the estate of Mr. Rumisek. This argument entirely misconceives the rules of joinder. Even in the case of an action on a promise made jointly by a number of persons, joinder of the estate of a co-promisor who had died would not be necessary. 1 Restatement, Contracts § 117. Indeed, in early practice it would be improper. See Newberry v. Trowbridge, 13 Mich. 263; Murphy's Administrators v. Branch of Bank of State of Alabama, 5 Ala. 421. But we are not persuaded that the policy of the statute, the protection of the public from automobiles in the hands of reckless drivers (Moore v. Palmer, supra), requires a departure from the rule of joinder of co-owners in actions in tort. Genrally, such actions may be brought against one, some, or all of the co-owners of the thing that causes harm. 4 Restatement, Torts §§ 878,882.
The action, then, being joint and several, was maintainable against Mrs. Rumisek in her lifetime, despite the non-joinder of her husband's estate. Did, however, the action survive her death? The defendants insist not. They assert that Mrs. Rumisek was not herself 'a tortfeasor,' that she 'was not even present at the time of the accident' and that she is a party 'solely by reason of the ownership statute (M.S.A. § 9.2101) which unlike the nonresident owners statute makes no provision whatever for the...
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