Roberts v. Posey, Docket No. 6918

• Decision Date: 24 August 1970
• Docket Number: No. 1,Docket No. 6918,1
• Parties: Kenneth ROBERTS, Plaintiff-Appellant, v. Leonard POSEY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 33

182 N.W.2d 33

26 Mich.App. 95

Kenneth ROBERTS, Plaintiff-Appellant, v. Leonard POSEY, Defendant-Appellee.

Docket No. 6918.

Court of Appeals of Michigan, Division No. 1.

Aug. 24, 1970.

Released for Publication Dec. 28, 1970.

A. Jerome Allen, Detroit, for plaintiff-appellant.

Blum & Sternberg, Detroit, for defendant-appellee.

Before R. B. BURNS, P.J., and LEVIN and CHURCHILL, ^* JJ.

CHURCHILL, Judge.

Plaintiff, Kenneth Roberts, who was injured on September 11, 1965, when his automobile was struck in the rear by another automobile owned by defendant, Leonard Posey, and driven by James Montague, brought this action in Wayne County Circuit Court against defendant Posey alone to recover his damages. After a non-jury trial, the trial judge filed a written opinion that the plaintiff was entitled to recover damages in the sum of $6,000. Prior to the entry of that judgment, he filed a supplemental opinion, expressly reversing himself and directing the entry of a judgment of no cause of action. Such a judgment was entered and the plaintiff appeals.

Pursuant to GCR 1963, 812.10 the parties filed a stipulation in this Court that the statement of facts in the appellee's brief shall comprise the agreed statement of facts on appeal. The statement of facts leaves no doubt that the accident and the plaintiff's injuries were proximately caused by the negligent operation of the defendant's auto by Montague. The other significant facts may be summarized as follows, with certain direct quotations from the agreed-upon statement receiving our emphasis:

On September 10, 1965, at 10:00 in the morning, Montague visited the home of the defendant, an ordained minister, and requested the loan of the defendant's auto For the express purpose of going to pick up his paycheck. The defendant agreed to allow Montague to use his vehicle but Admonished him at the time that the auto must be brought back no later than 11 or 11:30 a.m. so the defendant could use it for church business at that time. Montague, agreeing to the limitation, took the car. It was not returned at the agreed time. That afternoon the defendant became concerned about the whereabouts of his auto and made every reasonable effort to locate it, including notification to the police that it was missing. The defendant was unable to locate it until after it had been driven by Montague, early the next morning, into the rear of the plaintiff's car.

The defendant is charged with no fault. The sole question, on appeal, is whether, on these stipulated facts, the defendant is responsible for the plaintiff's damages by operation of the civil liability act. M.C.L.A. § 257.401 (Stat.Ann.1968 Rev. § 9.2101). The statute contains its own express limitation:

'The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.'

This statute was most recently construed in a limited consent situation in Detroit Automobile Inter-Insurance Exchange v. Swift (1968), 11 Mich.App. 166, 160 N.W.2d 738, where this Court restated the rule that where consent is limited, use beyond that limit does not make the owner liable.

Consent and limitations thereon are ordinarily fact questions with the plaintiff having the burden. Detroit Auto Inter-Insurance Exchange v. Gordon (1968) 15 Mich.App. 41, 165 N.W.2d 923. Here, by the stipulated facts, and also by the trial judge's findings, ¹ the plaintiff failed to sustain that burden. The trial judge correctly reversed himself and the judgment for the defendant is affirmed.

LEVIN, Judge (concurring).

I agree with my colleagues that the judgment of the trial court must be affirmed for the reasons stated in Judge Churchill's opinion. It was stipulated that the defendant, Leonard Posey, agreed to permit James Montague to use his automobile for 1 to 1 1/2 hours for the limited purpose of going to pick up a paycheck and that in violation of the agreement Montague went on an unauthorized excursion culminating over 12 hours later in the collision between the plaintiff's and Posey's automobiles.

While the civil liability act makes an owner responsible for injuries occasioned by the negligent driving of his automobile if it is being driven with his express of implied consent or knowledge, ¹ under controlling precedent (Merritt v. Huron Motor Sales, Inc. (1937), 282 Mich. 322, 276 N.W. 464) ² an owner may place limitations on his consent and is not liable unless the vehicle is being driven for a purpose and at a time within the express or implied scope of the consent. ³

Since the parties have in effect stipulated that at the time of the accident Posey's vehicle was being operated for a purpose and at a time beyond the scope of the agreement, ⁴ the trial judge correctly entered a judgment of no cause of action.

I write separately because in my opinion the case law allowing an owner to place limitations on his consent should be reexamined, and because it appears from decisions of the Supreme Court of Michigan that the Court may be prepared to reconsider the question.

I.

Before the passage of the civil liability act, an owner could be held liable either (1) under the family car doctrine, ⁵ (2) on an agency theory ⁶ or (3) for negligent entrustment of the vehicle to a driver known at the time of the entrustment to be incompetent. ⁷ The act was designed to extend the owner's liability beyond these limited situations and to subject him to liability whenever his automobile is driven with his express or implied consent or knowledge without a showing of negligence in the entrustment.

The pertinent language of the act reads:

'The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her Express or implied consent or knowledge.' ⁸ (Emphasis supplied.)

The courts were, however, quick to superimpose agency concepts on the statutory language. ⁹ In Kieszkowski v. Odlewany (1937), 280 Mich. 388, 393, 273 N.W. 741, 743, the driver, who was on his employer's business, deviated 1/2 block from a feasible route to visit a friend--a personal, not a business, purpose. The Court declared that the 'deciding factor is not the degree of the deviation, but rather, whether the owner impliedly consented to the route taken. * * * (F)ailure to specify a particular route does not, of itself, permit a personal use of the vehicle, and, unless consent can be implied from some other source, such use is a deviation.' ⁹

The opinion of the Court reflects the state of the law at the time (pp. 393, 394, 273 N.W. p. 743):

'Some attempt is made to distinguish the decisions on this question where a master and servant relation is involved from those wherein the lender-borrower situation exists. There is no distinction in so far as the applicable legal theory is concerned, 1 Comp.Laws 1929, § 4648, governs both instances. Where a master and servant relation exists, the implied consent of the owner of the vehicle extends to the scope of employment. When the servant is outside the scope, he is outside the consent; the terms are co-extensive, and, as used in this sense, have the same meaning. The scope of employment is merely the measuring rod by which it can be determined whether the servant was acting within the implied consent of the employer. The lender-borrower relation has no measuring rod, but the theory of implied consent is the same.'

II.

In Moore v. Palmer (1957), 350 Mich. 363, 86 N.W.2d 585, Mr. Justice Edwards, in an opinion signed by three other justices, reviewed earlier decisions of the court and declared that limitations inherent in the common-law doctrine of Respondeat superior, particularly the 'scope of employment' criterion, are not part of the statutory definition (p. 394, 86 N.W.2d p. 596):

'The Michigan owner liability act, (citation omitted) is an enactment founded upon the police power of the State. Its obvious purpose is to make owners of automobiles liable for the negligent acts of those to whom they entrust their vehicles. Liability under the statute is not limited by the common-law tests applicable to the master-servant relationship. The fact that a common-law action under the master-servant doctrine preceded the statute (and still exists) does not create any exception from the terms of the statute in favor of employers as a class.

'The statute carries within it its own test as to owner liability: Whether 'said motor vehicle is being driven with his or her express or implied consent or knowledge."

In subsequent opinions the Michigan Supreme Court adopted this view of the act, declaring that the liability of an owner-employer for the acts of his driver is not dependent upon or limited by the integrants of the common-law doctrine of Respondeat superior and, specifically, that merely because an employee has deviated from the scope of his employment did not automatically relieve his owner employer from statutory liability.

In Kiefer v. Gosso (1958), 353 Mich. 19, 90 N.W.2d 844, the Court expressly overruled Anderson v. Schust Co. (1933), 262 Mich. 236, 247 N.W. 167, which, said the Kiefer Court, had (p. 29, 90 N.W.2d p. 845) 'modified the owner liability statutory test of the owner's actual or implied consent or knowledge of the driving, by the additional test, in employee driver situations, of scope of employment.' The Kiefer Court quoted and adopted the text from Moore set forth and quoted above.

The Michigan Supreme Court has not, however, ruled that an owner-employer is liable for injuries caused by his vehicle when used by an employee authorized to use it, without regard to whether the specific use was for a purpose and at a time...