Tanis v. Eding, 25.
| Decision Date | 05 December 1933 |
| Docket Number | No. 25.,25. |
| Citation | 265 Mich. 94,251 N.W. 367 |
| Parties | TANIS v. EDING et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.
Action by Sophie Tanis by Gertrude Tanis, her next friend, against Jacob Eding and others. From a judgment dismissing the declaration as against first named defendant, plaintiff appeals.
Reversed and remanded for trial.
Argued before the Entire Bench.
Leo W. Hoffman and Clare E. Hoffman, both of Allegan (Carl E. Hoffman, of Allegan, of counsel), for appellant.
Diekema, Cross & Ten Cate, of Holland, for defendants Jacob Eding, Harry Brower, and Harvey Zeerip.
Mason, Alexander, McCaslin & Cholette, of Grand Rapids, for defendant Harry H. Vredeveld.
This is review of judgment dismissing a declaration for failure to state a cause of action against defendant Eding.
The declaration alleges in substance that Eding operates an automobile sales and service garage, in which Harvey Zeerip was manager and Harry Brower was an employee; that defendant Vredeveld delivered a car at the garage in exchange for a new one; that the exchange was completed, except that Vredeveld did not deliver a certificate of title; that Zeerip and Brower took the car from the garage with Eding's consent, and, while Brower was driving it negligently, it struck and injured plaintiff; and that Eding knew, when he gave his consent to Brower's taking the car, that he was a careless, reckless, and incompetent driver.
The claimed defect is that the declaration did not allege that Brower was agent or servant of Eding, engaged upon his business at the time of the injury.
Eding was not liable, under C. L. 1929, § 4948, as owner of the car because he had not received certificate of title. Kimber v. Eding, 262 Mich. 670, 247 N. W. 777.
Defendant relies on Johnston v. Cornelius, 193 Mich. 115, 159 N. W. 318, in which the car was driven without the owner's consent; Hartley v. Miller, 165 Mich. 115, 130 N. W. 336,33 L. R. A. (N. S.) 81,Loehr v. Abell, 174 Mich. 590, 140 N. W. 926, and Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316, in which it was not claimed the driver was incompetent. These cases are authority that, independently of statute, the loan of an automobile does not render the owner liable for the negligence of the driver under the doctrine of ‘dangerous instrumentalities,’ but liability is governed by the law of master and servant. This is the general rule. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629,16 A. L. R. 270. At bar, however, we have the added charge that the lender knew the borrower was an...
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