Miller v. J.A. Tyrholm & Company, Inc

• Decision Date: 14 February 1936
• Docket Number: 30,729
• Citation: 265 N.W. 324,196 Minn. 438
• Parties: ALFA MILLER v. J.A. TYRHOLM & COMPANY, INC
• Court: Minnesota Supreme Court

265 N.W. 324

196 Minn. 438

ALFA MILLER v. J.A. TYRHOLM & COMPANY, INC

No. 30,729

Supreme Court of Minnesota

February 14, 1936

Action in the district court for Waseca county to recover damages for injuries sustained by plaintiff while riding in an automobile owned by defendant and operated by her husband.The case was tried before Fred W. Senn, Judge, and a jury.Plaintiff had a verdict of $750.Defendant appealed from the judgment entered after denial of its motion for judgment notwithstanding the verdict.Affirmed.

SYLLABUS

Automobile -- liability of auto dealer for negligence of prospective purchaser.

Husband and wife -- right of action by injured wife against employer of negligent husband.

Plaintiff while a guest passenger in defendant's car then being operated by her husband suffered injuries by reason of his negligence in its operation.By L. 1933, c. 351, § 4 any person other than the owner operating a motor vehicle upon a public highway, with the consent of the owner, is deemed the agent of the owner in such operation in the event of an accident.Held:

1.Immunity of the husband from suit in tort on the part of his wife does not inure to the benefit of the owner of the automobile.

Automobile -- injury to guest -- contributory negligence.

2.Contributory negligence was not established as a matter of law.

Robb Rich & Reynolds, for appellant.

Moonan & Moonan, for respondent.

OPINION

JULIUS J. OLSON, JUSTICE.

On September 15, 1934, plaintiff and her husband, J. D. Miller, with their 15-year old son, went to defendant's garage at Waseca, defendant being engaged in the business of dealing in new and used automobiles, the husband having in mind the purchase of a used car for his son.Mrs. Miller remained outside the garage, but the husband went in and conferred with Mr. Tyrholm, an officer of defendant, about a model T Ford coupe of somewhat aged vintage (1924)they had observed parked immediately outside the garage.In a very short time Mr. Miller came back with Tyrholm to where plaintiff was awaiting them.In her presence Mr. Tyrholm opened the door of the Ford car, started the engine, and told her husband "to take it out and try it."Mr. and Mrs. Miller and the boy got into the car, Miller being at the wheel.He drove the car a short distance upon the paved streets of Waseca and then gave plaintiff a chance to try it out.He again took charge of the car as driver, and they went out on a road at or near Clear Lake.On this trip they took a side road, one used by cottage owners near the lake.The road was narrow but was in use by the cottage owners and others.While traveling upon this road at a speed of from 12 to 15 miles per hour, that being plaintiff's estimate and there being no speedometer on the car, going down a somewhat steep hill, at the bottom of which there was a shallow ditch made by water having run across the road, the car was jarred so that Mr. Miller lost control of it.When the car finally stopped it was found that the reason for its stopping was the fact that it had "hit this tree" located some 30 feet on the right-hand side of the road.Plaintiff received injuries and to recover for these brought this action against defendant.The basis of defendant's liability is predicated upon the alleged claim (1) that the steering apparatus was faulty, and (2) that the driving on the part of Miller was negligent.

The trial resulted in a verdict for plaintiff.Defendant did not ask for a new trial but did move the court for an instructed verdict before submission to the jury and later moved for judgment notwithstanding.The court denied both motions.Judgment was thereupon entered, and the appeal is from the judgment.

Defendant has devoted a great deal of space in its brief to plaintiff's first theory of liability.We shall pass that question because the view we take of the case makes it unnecessary that it be determined.

In its brief defendant states, "for the purposes of this appeal, it may be conceded that plaintiff's husband was negligent in his operation of the car on the side road, and that such negligence proximately caused the injury to plaintiff."

1.The basis upon which recovery against defendant is sought is found in L. 1933, c. 351, § 4, 3MasonMinn. St. 1934 Supp. § 2720-104.That section reads:

"Whenever any motor vehicle, after this act becomes effective, 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 ours.)

From what has been said it is obvious that Miller had the possession and use of this car "with the consent of the owner."Consent was expressly given.Defendant does not dispute this, nor can it.Its principal argument here, and that is the point upon which reliance is placed, is that the negligent act being that of the husband, and inasmuch as a wife cannot sue her husband in tort, this action cannot be maintained against the owner of the car.That such action does not lie against one's spouse has been determined in many cases.Our latest pronouncement is Patenaude v. Patenaude,195 Minn. 523, 263 N.W. 546, where prior decisions are reviewed.

The claim is made that unless the agent or servant is liable no liability can attach to the principal or master.But if a negligent act resolves itself into injury to another and if the actor occupies a position which makes him immune to suit for recovery of damages, that alone should not relieve the principal or master.Many things may occur preventing the enforcement of liability against the servant as such.He may die before the cause is heard.He may go through bankruptcy.He may be financially irresponsible so as to make a suit against him unproductive of any relief.The cases even go so far as to hold that if the servant receives from the injured party a covenant not to sue that does not relieve the master or principal.

The cases bearing upon this subject and supporting defendant are Maine v. James Maine & Sons Co.198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161;Riser v. Riser,240 Mich. 402, 215 N.W. 290;Emerson v. Western S. & I. Co.116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327.The basis for the view taken in the cited cases may be summarized thus:

"If recovery may be had by the wife against the employer, and he in turn may recover from the husband-employe, then the family wealth remains the same save as diminished by the expenses of the litigation.It would seem that to permit a recovery against the employer results simply in countenancing an encircling movement where a frontal attack upon the husband is inhibited."Emerson v. Western S. & I. Co.116 Neb. 180, 185, 216 N.W. 297, 299, 56 A.L.R. 327.

As far as we are informed, and counsel's research does not disclose otherwise, there are no other cases than those heretofore cited sustaining its position.

Other courts have come to a different conclusion.In Schubert v. Schubert Wagon Co.249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293, a result directly opposite was reached.The court in that opinion discussed the caseswe have cited.The following excerpt from that opinion is deemed pertinent (249 N.Y. 254-255):

"Plaintiff while in the highway was struck by the defendant's car and injured.The car causing the hurt was driven by plaintiff's husband, who was then in the defendant's service.His negligence is not disputed.The employer would have been liable if the servant, the driver of the car, had been a stranger to the plaintiff.The question is whether the rule of liability is different where the servant is the husband."And further, 249 N.Y. 256-257:

"An employer commits a trespass by the hand of his servant upon the person of another.The act, let it be assumed, is within the scope either of an express mandate or of an implied one.In either event, if the trespass is not justified, he is brought under a distinct and independent liability, a liability all his own.The statement sometimes made that it is derivative and secondary (Pangburn v. Buick Motor Co.supra[211 N.Y. 228, 105 N.E. 423]), means this and nothing more, that at times the fault of the actor will fix the quality of the act.Illegality established, liability ensues.The defendant, to make out a defense, is thus driven to maintain that the act, however negligent, was none the less lawful because committed by a husband upon the person of his wife.This is to pervert the meaning and effect of the disability that has its origin in marital identity.A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage.Others may not hide behind the skirts of his immunity.The trespass may be a crime for which even a husband may be punished, but whether criminal or not, unlawful it remains.As well might one argue that an employer commanding a husband to commit a battery on a wife, might justify the command by the victim's disability.The employer must answer for the damage whether there is trespass by direct command or trespass incidental to the business committed to the servant's keeping.In each case the maxim governs that he who acts through another, acts by himself.In all this there is nothing at war with the holding of some cases that the remedy against the husband is denied altogether, and not merely suspended during coverture * * *.Unlawful the act remains, however shorn of a remedy * * *.

"We are told that in the long run the consequences of upholding an action against the master may be to cast the burden on the husband, since the master, if not personally at...