Roberts v. Posey

• Court: Michigan Supreme Court
• Writing for the Court: BRENNAN; T. M. KAVANAGH
• Citation: Roberts v. Posey, 386 Mich. 656, 194 N.W.2d 310 (Mich. 1972)
• Decision Date: 25 February 1972
• Docket Number: No. 7,7
• Parties: Kenneth ROBERTS, Plaintiff-Appellant, v. Leonard POSEY, Defendant-Appellee.

Page 310

194 N.W.2d 310

386 Mich. 656

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

No. 7.

Supreme Court of Michigan.

Feb. 25, 1972.

Metry, Metry, Sanom, Ashare & Goldman by A. Jerome Allen, Detroit, for plaintiff-appellant.

Blum, Graber & Rosenberg, P.C., by Irving R. Blum, Detroit, for defendant-appellee.

Before the Entire Bench.

BRENNAN, Justice.

I. FACTS

The parties, by stipulation pursuant to GCR 1963, 812.10, agree to the following facts:

'Defendant Leonard Posey is an ordained minister. On September 10, 1965, at approximately 10:00 am, Reverend Posey was visited at his home by one James Montague. Mr. Montague at that time requested the loan of Reverend Posey's automobile for the express purpose of going to pick up his pay check. At that time, Reverend Posey agreed to allow Mr. Montague to use his vehicle but admonished him at that time that the automobile must be brought back no later than 11:00 or 11:30 am as Reverend Posey had to go out on church business at that time. He was assured by Mr. Montague that the vehicle would be brought back within a very short time as Mr. Montague was only going to use the automobile for the express purpose of picking up his check from his place of employment and returning immediately. Reverend Posey then allowed Mr. Montague to use his automobile.

'When Mr. Montague did not return at the stated hour Reverend Posey called Mr. Montague's wife to inquire of his whereabouts. She did not know where he might be and Reverend Posey made many other telephone calls including Mr. Montagues place of employment, the Police Department, various hospitals, and other places where Mr. Montague might appear, all to no avail. Later that afternoon Reverend Posey notified the Police Department that his vehicle was missing and was told to come in and make a formal report of a stolen vehicle the next day if it was not returned by that time.

'At approximately 3:00 am on September 11th, Reverend Posey received a telephone call from Mr. Montague informing him that he had had an accident with Reverend Posey's automobile.'

The action was brought by plaintiff against defendant Posey alone in the Wayne county circuit court and was tried without a jury. At the end of the trial, the judge found defendant liable as owner of the vehicle operated by Montague under the Civil Liability Act, M.C.L.A. 257.401, M.S.A. 9.2101. Before entry of judgment for plaintiff, however, the trial judge reconsidered his decision, and ruled that the driver Montague 'was not driving reasonably within the granted consent; he was on an independent joy ride of his own the next day.' Judgement was entered for the defendant. The Court of Appeals affirmed, 26 Mich.App. 95, 182 N.W.2d 33.

II. ISSUE

The sole issue is whether, on the stipulated facts, defendant is liable as the owner of an automobile driven by one 'with his * * * express or implied consent or knowledge' within the meaning of M.C.L.A. § 257.401, M.S.A. § 9.2101.

III. DISCUSSION OF THE LAW

The statute, M.C.L.A. § 257.401, M.S.A. § 9.2101, provides:

'Sec. 401. Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his agent or servant. 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. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family: Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.'

The trial judge based his opinion on Merritt v. Huron Motor Sales, Inc., 282 Mich. 322, 276 N.W. 464 (1937), and Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585 (1957).

Moore v. Palmer was a case involving an employee-driver. We held that, with respect to employee-drivers, the liability of employer-owners is not limited by the common law doctrine of respondeat superior. The statutory owners' liability is legislatively declared, and based upon a broader standard than scope of employment.

Merritt v. Huron is very much on all fours with the case at bar. In Merritt, the car was owned by an auto agency. Its sales manager loaned the vehicle to one Schuon, for the purpose of visiting a sick friend in a Brighton hospital. Schuon was to return the car to Ann Arbor by 10:00 p.m., so that the sales manager could pick up his daughter from a party. The accident occurred at 2:00 a.m. in Detroit. Verdict was for the plaintiff. This Court reversed, ordering entry of judgment Non ob tante verdicto, holding that under uncontroverted evidence, the vehicle was not being driven with the express or implied consent or knowledge of the owner.

The Merritt case is poorly reasoned. It engrafts upon the statutory test of owner's liability, an element of conditional consent which the legislature has not provided.

It may be assumed that no auto owner gives consent to another to have an accident with his car. In that sense, every vehicle driven by someone other the owner, which becomes involved in a collision is being driven outside the scope of the owner's consent.

The statute absolves the owner from liability only when the vehicle is being Driven without his express or implied consent or knowledge. The consent or knowledge, therefore, refers to the Fact of the Driving. It does not refer to the Purpose of the driving, the Place of the driving, or to the Time of the driving.

The purpose of the statute is to place the risk of damage or injury upon the person who has the ultimate control of the vehicle.

The owner who gives his keys to another, and permits that person to move several thousand pounds of steel upon the public highway, has begun the chain of events which leads to damage or injury.

The statute makes the owner liable, not because he caused the injury, but because he permitted the driver to be in a position to cause the injury.

By common-law standards, this may be a remote,...