Haring v. Myrick

• Citation: 368 Mich. 420,118 N.W.2d 260
• Decision Date: 04 December 1962
• Docket Number: 36,Nos. 35,s. 35
• Parties: Julian L. HARING, Plaintiff and Appellant, v. Gordon MYRICK and Harry Church, Defendants and Appellees. Archie HARING by Julian L. Haring, Next Friend, Plaintiffs and Appellants, v. Gordon MYRICK and Harry Church, Defendants and Appellees.
• Court: Supreme Court of Michigan

Page 260

118 N.W.2d 260

368 Mich. 420

Julian L. HARING, Plaintiff and Appellant, v. Gordon MYRICK and Harry Church, Defendants and Appellees.

Archie HARING by Julian L. Haring, Next Friend, Plaintiffs and Appellants, v. Gordon MYRICK and Harry Church, Defendants and Appellees.

Nos. 35, 36.

Supreme Court of Michigan.

Dec. 4, 1962.

Marcus, McCroskey, Finucan & Libner, Muskegon, and Russell L. Shepherd, Newaygo (Thomas W. Finucan, Muskegon, of counsel), for appellants.

Reber & Reber, Fremont, for appellee Harry Church.

Before the Entire Bench.

SOURIS, Justice (for reversal).

At common law, a master is liable for injuries negligently inflicted by his servant upon another only when the servant is then acting within the scope of his employment. Hartley v. Miller, 165 Mich. 115 130 N.W. 336, 33 L.R.A., N.S., 81; Riley v. Roach, 168 Mich. 294, 134 N.W. 14, 37 L.R.A., N.S., 834; and Brinkman v. Zuckerman, 192 Mich. 624, 159 N.W. 316. If a negligent injury occurs while the servant is engaged in pursuit of his own affairs and not those of his master, it makes no difference, ordinarily, that the injury is inflicted by use of an instrumentality belonging to the master. Brinkman v. Zuckerman, supra, 628, 159 N.W. 316. However, by statute such as C.L.S.1956, § 257,401 (StatAnn.1960 Rev. § 9.2101), the common law has been modified to the extent that the owner of an automobile is liable for injuries resulting from its negligent operation if it is being driven with the owner's express or implied consent whether or not the relation of master and servant exists between the owner and the driver. In each of these circumstances, where liability is imposed upon the master or the owner, it is a vicarious liability stemming from the negligence of the servant or of the driver to whom an owner has entrusted his automobile.

There is another circumstance, however, where liability at common law is imposed upon the owner of a chattel for injuries resulting from its negligent use by another. Such liability arises when the owner permits an incompetent or inexperienced person to use his chattel with knowledge that such use is likely to cause injuries to others. Apart from such statutes as that cited above, the owner of a motor vehicle may not entrust it to such a person without liability for resulting negligent injuries to others. 36 A.L.R. 1137, 1148; Naudzius v. Lahr, 253 Mich. 216, 229, 234 N.W. 581, 74 A.L.R. 1189; Tanis v. Eding, 265 Mich. 94, 96, 251 N.W. 367; ¹ and Elliott v. A. J. Smith Contracting Co., 358 Mich. 398, 414 100 N.W.2d 257. In such circumstances, the owner's liability is also in part vicarious for it cannot arise unless the person entrusted with the automobile uses it negligently; but, the primary basis for the owner's liability is said to be his own negligence in permitting its use by an incompetent or inexperienced person with knowledge of the probable consequences.

In the case at bar, the trial court dismissed, on motion and before answer, two declarations (in cases treated as consolidated both in the trial court and on appeal) as against one of several defendants. The dismissed defendant, appellee here, was declared by plaintiffs to be the owner of an automobile which was being repaired by his minor son. Gasoline, or gasoline fumes, from the car's tank came in contact with a heating appliance being used by the son to thaw a frozen gasoline line and ignited, burning one of the plaintiffs who was standing nearby. The trial judge properly ruled that C.L.S.1956, § 257.401 was not applicable to impose liability upon appellee-owner because the motor vehicle was not being driven at the time the fire occurred. The express language of the statutory provision precludes its application to the facts of this case.

However, apart from the statute, plaintiffs' declarations alleged causes of action against appellee as owner of the automobile within the common law rules discussed in the forepart of this opinion. As in this appeal, Tanis v. Eding, supra, involved dismissal of a declaration by the trial court because of the inapplicability of the statute, the dismissed defendant not having taken title yet to the motor vehicle. The dismissal was reversed, however, on the ground that a common law cause of action also had been pleaded against him. The court distinguished cases like Hartley v. Miller, supra, and Brinkman v. Zuckerman, supra, which turned upon the doctrine of respondeat superior, and noted that plaintiff's declaration alleged the dismissed defendant ² had loaned the car to a person he knew was an incompetent driver. Commenting that the precise issue was new in this state, we quoted the following from 36 A.L.R. 1137, 1148, as representing the overwhelming weight of authority:

"The general rule that an owner of an automobile is not liable for the negligence of one to whom the automobile is loaned has no application in cases where the owner lends the automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile in such cases the owner is held liable for injuries caused by the borrower's negligence on the ground of his personal negligence in intrusting the automobile to a person who he knows is apt to cause injuries to another in its use."

The pertinent allegations of duty, breach and damage contained in the identical declarations at bar are:

'VI.

'That it was then and there the duty of defendant Harry Church to exercise due care as to the use, maintenance, repair and operation of his automobile and to refrain from permitting its use, maintenance, operation and repair by an unskilled and...