Jacobsen v. Dailey

• Decision Date: 01 April 1949
• Docket Number: No. 34811.,34811.
• Citation: 36 N.W.2d 711,228 Minn. 201
• Parties: JACOBSEN v. DAILEY et al.
• Court: Minnesota Supreme Court

36 N.W.2d 711

228 Minn. 201

JACOBSEN v. DAILEY et al.

No. 34811.

Supreme Court of Minnesota.

April 1, 1949.

Appeal from Municipal Court, Hennepin County; Harold N. Rogers, Judge.

Action by H. C. Jacobsen against Aaron Dailey, and another, for damages to automobile in collision. Defendant Aaron counterclaimed. From an order denying defendant's motion for judgment notwithstanding verdict for plaintiff or new trial, defendants appeal.

Affirmed.

Dorsey, Colman, Barker, Scott & Barber and Henry Halladay, all of Minneapolis, for appellants.

Ryan & Kain, of Minneapolis, for respondent.

MAGNEY, Justice.

Defendant Aaron Dailey was the owner of an automobile. Plaintiff also owned one. Early in the morning of November 11, 1946, the cars, going in opposite directions on state highway No. 7, between Excelsior and Minneapolis, collided. Both cars were damaged. At the time of the accident, the Dailey car was operated by defendant Warren Dailey, son of the owner, solely for his own purposes. The Jacobsen car was operated by Jack Jacobsen, son of its owner, also solely for his own purposes. Plaintiff brought action against the Daileys to recover for damages to his car. Defendant Aaron counterclaimed. The amount of damages to each car was stipulated. The jury returned a verdict for plaintiff. The appeal is from an order denying defendants' motion for judgment notwithstanding the verdict or a new trial.

The accident resulted from the failure of either or both of the operators to keep wholly to the right of the center line of the highway. Either or both were driving over the center line in a prohibited lane, or there could have been no collision. There is the usual conflict of testimony. As the main contentions in this appeal do not center on the sufficiency of the evidence to support the verdict, it is unnecessary to detail and discuss the facts surrounding the accident. Suffice it to say that in our opinion the verdict is adequately supported.

1. Defendants contend, first, that the court erred in refusing to give a requested instruction to the effect that if the jury should find that defendant Aaron, through the negligence of his son Warren, proximately caused or contributed to cause the damage to plaintiff's car, the plaintiff would be entitled to recover, unless the jury should also find that plaintiff's negligence, through that of his son Jack, contributed to the collision as a proximate cause thereof. In other words, defendants requested the court to instruct the jury that the negligence of Jack, the son, was imputable to the father, the owner of the car, in the latter's action to recover for damages to his automobile, and that the court erred in refusing so to instruct.

Defendants also contend that the court erred in refusing to instruct as follows:

"I charge you, as a matter of law, that under the statutes of this state, each of the two automobiles here in question, being operated by drivers with the consent of the respective owners, were being operated by agents of each of the owners. I also charge you, as a matter of law, that neither of the owners is responsible to the other for the negligence of either of the drivers even though both drivers were negligent."

Both requests raise the same question.

The statute referred to is M.S.A. § 170.54, which reads:

"Whenever any motor vehicle * * * shall be operated upon any public street or highway of this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof." (Italics supplied.)

Appellants contend that by the language of this statute a person who operates a motor vehicle with the consent of the owner becomes the agent of the owner for all purposes in connection with the operation of the vehicle, and that in this case the negligence, if any, of Jack, the son, would be imputed to plaintiff, the father.

In Christensen v. Hennepin Transp. Co. Inc., 215 Minn. 394, 408, 10 N.W.2d 406, 415, 147 A.L.R. 945, this court thoroughly considered § 170.54, Minn.St.1941, 170.04, as cited in the Christensen case. We there held that contributory negligence of a husband operating upon a public highway an automobile of which his wife was a co-owner and in which she was riding at the time of its collision with the truck of a third person was not imputable to the wife merely because of such facts, either under (a) the common law, or (b) the safety responsibility act (Minn.St.1941, 170.01 to 170.19, as cited in the Christensen case), in an action by the wife to recover damages for personal injuries against the third party because of his negligence. Since § 170.54 is silent with respect to the rights of the owner in an action where he seeks recovery against a third party for damages sustained by him as the result of the ownership or operation of a motor vehicle, the court in the Christensen case proceeded to construe the statute with that situation in mind. It first considered the purpose of the safety responsibility act, L.1933, c. 351, as disclosed by its title. Its purpose as so disclosed is to provide for the establishment of financial responsibility by owners of motor vehicles for personal injuries, including death, and property damage resulting from the maintenance, use, and operation thereof. The provisions of the act, in harmony and conformity with its title, concern themselves with the placing of financial responsibility upon owners of automobiles. The court there cited Holmes v. Lilygren Motor Co., Inc., 201 Minn. 44, 48, 275 N.W. 416, 418, where we said:

"* * * It is clear that the purpose [of the statute in question] 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." (Italics supplied.) We then said, 215 Minn. 412-413, 10 N.W.2d 416-417:

"* * * The subject of imputing a driver's contributory negligence to the owner is not mentioned in the statute. It is not the mischief at which the statute aims. It is entirely foreign to the purpose of the statute. The express provisions set limits which exclude the entire subject of imputed contributory negligence.

* * * * * *

"The very reason for holding the consenting owner liable for negligence of the operator of his automobile, that of furnishing financial responsibility to an injured party, is completely absent in the owner's action to recover for damages sustained by him as a result of the concurrent negligence of the operator and the third party. Therefore, it is a non sequitur to say that, because the policy of the statute is to impose liability against the bailor, it also is its policy to impute to him the contributory negligence of his bailee. * * *

"Furthermore, to extend the doctrine of imputed contributory negligence to cases of bailor and bailee and driver and guest involves a change of existing law, which is not warranted by the terms of the statute."

In construing § 170.54, § 170.04 in the Christensen case, we stated the meaning of the statute to be that, 215 Minn. 410, 10 N.W.2d 415, "the driver causing an accident shall be deemed the owner's agent, * * * for purposes only of holding the owner liable to persons injured by the driver's negligence" (italics supplied), and concluded, 215 Minn. 417, 10 N.W.2d 418, that the rule that a bailee's negligence is not imputable to the bailor in an action by the latter against a third party is sound in principle.

As we have been invited by this appeal to reexamine and reconsider the rule adopted in the Christensen case, it seemed appropriate to quote at length the language of that opinion and to incorporate it here. What we there said expresses our present view of the meaning of § 170.54. Nothing has occurred to us or has been called to our attention which inclines us to adopt any other interpretation. The statute is not so framed as to constitute the bailee the owner's agent. And we can find nothing to indicate a purpose to create a universal responsibility for all purposes. Mr. Justice Peterson, in the course of the opinion in the Christensen case, cites and fully reviews numerous authorities from other jurisdictions. Another review here is therefore not warranted. The rule announced in the Christensen case was later approved by us in Kane v. Locke, 216 Minn. 170, 12 N.W. 2d 495.

It is interesting to note that the same interpretation which we have given the statute was given to it by the court of an adjoining jurisdiction. In Zowin v. Peoples Brewing Co., 225 Wis. 120, 124, 273 N.W. 466, 468, Mr. Chief Justice Rosenberry states:

"* * * While the Minnesota statute uses the word `agent,' it does not attempt to make liability a part of an agency contract and so make it contractual. It merely makes the owner of a car driven by a person with his consent liable as though that person were an agent, a very different thing."

Also of interest are the comments made by the American Law Institute relative to statutes similar to the one here involved. In a caveat, which accompanies Restatement, Torts, § 485, it is stated:

"The Institute expresses no opinion as to whether the rule herein stated is applicable if a statute imposes vicarious liability for harm negligently caused to others by third persons for whose conduct he would not at common law be responsible."

The rule stated (§ 485) is as follows:

"Except as stated in §§ 493 and 494, a plaintiff is barred from recovery by the negligent act or omission of a third person if, but only if, the relation...