Kruutari v. Hageny

• Decision Date: 05 February 1948
• Docket Number: Civ. A. No. 83.
• Citation: 75 F. Supp. 610
• Parties: KRUUTARI v. HAGENY et al.
• Court: U.S. District Court — Western District of Michigan

75 F. Supp. 610

KRUUTARI v. HAGENY et al.

Civ. A. No. 83.

District Court, W. D. Michigan, N. D.

February 5, 1948.

Edward W. Massie, of Ironwood, Mich., for plaintiff.

Humphrey & Humphrey and Charles M. Humphrey, Jr., all of Ironwood, Mich., for defendants.

STARR, District Judge.

On March 19, 1942, plaintiff's decedent, Raymond E. Kruutari, an employee of the William Bonifas Lumber Company, sustained injuries while assisting in the inflation of a motor truck tire, which resulted in his death two days later. This suit to recover damages resulting from decedent's death, was originally begun by Victor Kruutari, special administrator of decedent's estate, against defendants Hageny and Musson, owners of the motor truck, in the circuit court for Gogebic county, Michigan. On petition of defendants, who were residents and citizens of the State of Wisconsin, the suit was removed to this court on the ground of diversity of citizenship. Victor Kruutari, special administrator, died October 30, 1946, and Hilda Kruutari, having been appointed and qualified as successor administratrix of decedent's estate, was substituted as plaintiff.

The Bonifas Lumber Company was engaged in logging operations in Gogebic county, Michigan. Its logging camp, referred to as camp six and consisting of bunk houses, kitchen, machine shop, garages, and office, was located on its property about seven miles from a public highway. The road from the highway to the camp was a private road, built and maintained by the lumber company and used as a truck road in connection with its logging operations and the transportation of employees and supplies to the camp. Hunters occasionally used the road, but the company endeavored to exclude them. Plaintiff's decedent, who was about 19 years old, was employed by the lumber company July 31, 1941, as camp clerk and continued in that capacity until he was injured on March 19, 1942. As camp clerk, he acted as time keeper, clerked in the camp store, ordered and received camp supplies, and did other miscellaneous clerical work about the camp.

Defendants owned a 1935, 1½-ton, Ford truck. By oral agreement the lumber company hired this truck from them at a rental of $6.50 a day and used it in connection with the operation of camp six during the months of January, February, and March, 1942. Under the oral agreement the company was to make minor repairs and defendants were to make major repairs to the truck. The company used the truck principally for the purpose of hauling its employees a distance of about three miles from the camp to a railroad landing where they worked and in hauling noon lunches to its employees at the landing. In making these trips the truck apparently traveled on the private property of the lumber company and not upon a public highway. In February, 1942, the company employed one Reinart Leer to drive the truck, and Leer continued to drive it until after the accident in question. His work included the repairing of the tires.

On March 19th the truck in question was in the lumber company's repair shop at camp six with a flat rear tire. Driver Leer repaired the tire, and to inflate it, he jacked up the truck, started the engine, and operated an air compressor by pushing it against one of the rotating wheels. The deflated tire and wheel assembly, with the tire lock rim attached, was placed on the ground with the rim up. Leer, who was operating the air compressor, requested plaintiff's decedent to hold the nozzle of the air hose on the valve stem of the tire. While he was holding the air hose, and after the tire had been pumped to a pressure of 60 pounds or more, the lock rim flew off with great force, striking him on the head and face and inflicting fatal injuries.

The special administrator of decedent's estate brought this action in pursuance of Comp.Laws Mich.1929, sec. 14061, as amended by Act No. 297, Pub.Acts 1939, which provides in part: "Whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act."

In his complaint the administrator alleged that the truck driver, Reinart Leer, was the agent and employee of the defendants; that defendants and Leer were negligent in failing to keep the truck and tire lock rims in a safe condition of repair; in permitting the lock rims to become defective; and in failing to warn decedent of the defective and dangerous condition of the lock rim in question. Defendants filed answer denying liability. After several stipulated continuances because of the absence of a material witness and the illness and death of the special administrator, the case was tried by the court without a jury.

It should be kept in mind that plaintiff's decedent was an employee of the lumber company; also that this suit is not against the lumber company or its employee, Reinart Leer, who drove the truck, but is only against Hageny and Musson, who owned the truck and who had rented it to the lumber company. As the accident occurred in Michigan, the questions presented should be determined according to the law of that state. The first question is whether or not there is a common-law liability on defendants.

The lumber company rented the truck from defendants and had possession and complete control of it. Defendants retained no control over the truck or over the driver employed by the lumber company. In its rental, control, and operation of the truck, the company stood in the position of an independent contractor. The testimony conclusively established that Leer, the driver of the truck, was not an agent or employee of defendants, as alleged. He was an employee of the lumber company, which hired and paid him and supervised and directed his work. As Leer was not an employee of defendants, they cannot be held liable to plaintiff under the common-law doctrine of respondeat superior. Plaintiff does not claim, nor is there proof, that defendants negligently rented the truck, knowing that it would be operated by an incompetent, careless or reckless driver. Furthermore, plaintiff does not claim, nor is there proof, that the truck or any part thereof was in a defective condition at the time defendants rented it to the lumber company in January, 1942. The established law relative to the common-law liability of the owner of a motor vehicle charged with negligence, as in the present case, is well stated in 5 Am.Jur. pp. 694-697:

"Sec. 353. * * * At common law, liability for the negligent use of an automobile by one other than the owner cannot be predicated against the owner merely because of such ownership. The owner of a car, in the absence of statute changing the common-law rule, is not liable for the negligence of one who stands in the relation of independent contractor in the operation of the car. * * * The automobile is not, according to the great weight of authority, an inherently dangerous agency so as to make the owner liable. * * *

"Sec. 354. * * * Except as statutory liability may be imposed upon an owner for the negligence of those permitted to use his car, * * * an automobile owner is charged with the negligence of the driver only when he has the right to exercise control over and direct the driver to such an extent that the doctrine of respondeat superior may be invoked. * * *

"Sec. 355. * * * An owner who lends his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, is liable for such person's negligence; the owner's liability in such cases is based upon his own negligence in intrusting the automobile to such a person. * * *

"Sec. 356. * * * In the absence of a change of rule by statute, the owner of an automobile, who intrusts it to another who is competent to operate it, is not, according to the great weight of authority, responsible for the negligence of the borrower in the use thereof in his own business and affairs. This is true where the car is let for hire."

In 5 Blashfield, Cyclopedia of Automobile Law and Practice, it is stated:

"Sec. 2911 (page 20). * * *

"While it has been said that automobile owners must be held to strictest account for negligence resulting in injury to others in the operation thereof, in the absence of any statute imposing such liability, mere ownership of a motor vehicle at the time of an accident caused by its negligent operation will not subject the owner to liability for the results of such negligence. To render the owner liable, there must be a duty on the part of the owner to plaintiff, a failure to perform such duty, and resulting injuries. * * *

"Sec. 2915 (page 35). * * *

"Ownership of a motor vehicle, by itself, does not establish agency, or the relation of master and servant, between the owner and the borrower or hirer negligently operating it. * * *

"As a general rule, therefore, in the absence of any statute imposing liability the owner of a motor vehicle is not liable for injuries to a stranger occurring from the negligent use of the machine by one to whom the machine has been loaned or hired, while it is in the possession of the borrower or hirer, and not connected in any way with the owner's business, and not under the control of the owner. * * *

"Sec. 2924 (page 56). * * *

"Though, as a general rule, in the absence of statute, an owner of a motor vehicle is not liable for injuries to third persons from its negligent use by another to whom he loans...