Hutchings v. Bourdages

• Decision Date: 10 September 1971
• Docket Number: No. 42836,42836
• Citation: 189 N.W.2d 706,291 Minn. 211
• Parties: Douglas HUCHINGS, Appellant, v. Mary BOURDAGES and Victor Bourdages, Respondents, Norman Calder, Defendant.
• Court: Minnesota Supreme Court

Page 706

189 N.W.2d 706

291 Minn. 211

Douglas HUCHINGS, Appellant, v. Mary BOURDAGES and Victor Bourdages, Respondents Norman Calder, Defendant.

No. 42836.

Supreme Court of Minnesota.

Sept. 10, 1971.

Syllabus by the Court

The owner of an automobile granted the unrestricted use of his automobile to another adult, who in turn granted restricted use of the automobile to his son. The subpermittee-son in turn permitted its use by a friend and was not present in the automobile at the time it became involved in an accident injuring a third person. Held: The automobile owner, for purposes of liability under Minn.St. 170.54, is deemed to have consented to these uses, extending the doctrine of Granley v. Crandall, 288 Minn. 310, 180 N.W.2d 190.

John D. Furuseth, International Falls, Applequist, Lyons, Nolan, Donovan, Larson & Barnes and Robert H. Magie III, Duluth, for appellant.

Reavill, Neimeyer, Johnson, Fredin & Killen and Thomas R. Thibodeau, Duluth, for respondents.

Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON, and KELLY, JJ.

OPINION

PETERSON, Justice.

This appeal from a judgment presents the issue of an automobile owner's liability under the applicable owner consent statute, Minn.St.1965, § 170.54, ¹ for damage caused by the negligence of a subpermittee.

Plaintiff, Douglas Hutchings, brought this negligence action against defendants Mary and Victor Bourdages and Norman Calder, for injuries sustained in an automobile accident on September 12, 1965. The Bourdageses were not involved in the accident except as owners of the automobile driven by Calder, and their liability depends upon our construction of the owner consent statute.

In May 1965 the Bourdageses, both residents of the Province of Ontario, Canada, delivered their automobile into the unrestricted possession and control of Mary Bourdages' nephew, Orlo Mallory, at his place of employment at Fort Frances, Ontario. They did so because both were employed at a camp which was inaccessible by automobile and because neither of them was licensed to drive an automobile. The Bourdageses, as the trial court found, impliedly consented to the use of their automobile by any person authorized by Orlo Mallory to use it, including Mallory's son, Robert.

On September 11, 1965, Orlo Mallory permitted Robert to use the Bourdages automobile for his personal pleasure, subject to two restrictions: That he not drive the automobile across the border into Minnesota and that he not permit anyone else to drive the automobile. Robert, however, did not follow these restrictions. He drove the automobile across the border to Ranier, Minnesota, in the company of several other young people from Fort Frances, Ontario, and, about 11:30 p.m. in a tavern at Ranier, he consented to the use of the automobile by Edwin Bruyere, Jr. to take defendant Norman Calder to get some money owed the latter by his employer. Calder drove, proceeding with Bruyere to the home of Calder's employer about 5 miles east of Ranier and thereafter to International Falls, several miles west of Ranier, in unsuccessful attempts to find the employer. The accident occurred as Calder and Bruyere were returning from International Falls.

The trial court found that Calder's use of the automobile was within the scope of the permission given by Robert Mallory to Bruyere but was not within the scope of permission given by Orlo Mallory to Robert Mallory. It concluded that the Bourdageses had not consented to Calder's driving their automobile, within the meaning of the owner consent statute. It accordingly rendered judgment that defendants Bourdages were not vicariously liable for Calder's alleged negligence. ²

We reverse and remand with directions to enter judgment for plaintiff on the issue of whether Calder was operating the automobile with the Bourdageses' consent.

The enactment of the owner consent statute, as part of the Safety Responsibility Act, was impelled by strong considerations of public necessity. An owner of an automobile otherwise could not be held liable for injuries to innocent third persons resulting from the negligence of a bailee unless a relationship of principal-agent or master-servant existed between the owner-bailor and the operator-bailee. ³ As we said in Holmes v. Lilygren Motor Co., Inc., 201 Minn. 44, 48, 275 N.W. 416, 418, and reiterated in Christensen v. Hennepin Transp. Co., Inc., 215 Minn. 394, 409, 10 N.W.2d 406, 415, 147 A.L.R. 945, 956: 'It is clear that the purpose (of the statute which was an earlier version of § 170.54) was to make the owner of motor vehicles liable to those injured by their operation upon public streets or highways where no such liability would otherwise exist.' The salutary effect was 'to give to persons injured by the negligent operation of automobiles an approximate certainty of an effective recovery by making the registered owner, who is (encouraged by the act) to take out insurance to cover his liability * * *, responsible as well as the possibly or probably irresponsible person whom the owner permits to drive the car * * *. ' Restatement, Torts, § 485, comment B, quoted approvingly in Jacobsen v. Dailey, 228 Minn. 201, 207, 36 N.W.2d 711, 714.

Public policy similarly dictates that the statute be accorded a construction that will achieve this vital statutory objective. We have to that end given the statute a liberal construction, particularly in situations involving minor permittees and subpermittees. Foster v. Bock, 229 Minn. 428, 39 N.W.2d 862; Lange v. Potter, 270 Minn. 173, 132 N.W.2d 734; Granley v. Crandall, 288 Minn. 310, 180 N.W.2d 190.

In Foster, we held a mother liable for the negligent unauthorized operation of her automobile by a friend of her 14-year-old son where the mother had given possession and control of the automobile for a designated purpose but without restriction as to whether her son could allow anyone else to drive it. We quoted with approval language used by the Michigan Supreme Court in interpreting a similar statute in Kerns v. Lewis, 246 Mich. 423, 425, 224 N.W. 647, 648:

'* * * Does the essential consent mentioned in the statute relate to the Driver, or to the vehicle 'being driven'? The statute makes the owner liable if the 'motor vehicle is being driven with his or her express or implied consent or knowledge,' and we cannot read into it the restriction that the particular driver must be known by and his driving consented to by the owner. The statute may be drastic, but we cannot render it less so by any permissible construction.' 229 Minn. 435, 39 N.W.2d 866.

In Lange, we held a father liable for the negligent operation of his automobile by his daughter's boyfriend, even...