Truck Ins. Exchange v. BOARD OF COUNTY ROAD COM'N, Civ. A. No. 4645.

• Decision Date: 07 September 1965
• Docket Number: Civ. A. No. 4645.
• Citation: 244 F. Supp. 782
• Parties: TRUCK INSURANCE EXCHANGE, a California corporation, Subrogee of A & C Carriers, Inc., and Ivan St. John Company, Plaintiffs, v. The BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF MONTCALM, Defendant.
• Court: U.S. District Court — Western District of Michigan

244 F. Supp. 782

TRUCK INSURANCE EXCHANGE, a California corporation, Subrogee of A & C Carriers, Inc., and Ivan St. John Company, Plaintiffs, v. The BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF MONTCALM, Defendant.

Civ. A. No. 4645.

United States District Court W. D. Michigan, S. D.

September 7, 1965.

Hathaway, Latimer, Clink & Robb, Muskegon, Mich., Robert J. VanLeuven, Muskegon, Mich., of counsel, for plaintiffs.

Cholette, Perkins & Buchanan, Grand Rapids, Mich., Richard D. Ward, Grand Rapids, Mich., of counsel, for defendant.

FOX, District Judge.

This is a motion by plaintiff to strike allegations of contributory negligence from defendant's answer under Rule 12 (f) of the Federal Rules of Civil Procedure.

The facts of the case, insofar as pertinent to this motion, are relatively straightforward. Plaintiff's insured, Ivan St. John Company, owned a 1959 White semi-tractor which it leased to A & C Carriers, Inc., also insured by plaintiff under a lease agreement submitted to the court as plaintiff's Exhibit 1.

In a collision March 13, 1962, with a truck owned and operated by defendant, the tractor owned by Ivan St. John Company and the two trailer units owned by A & C Carriers, Inc., were damaged. Plaintiff apparently paid Ivan St. John Company for damages to the tractor, and A & C Carriers for damages to the trailers and cargo. It brings this action as subrogee of both parties.

The question posed by plaintiff in this motion is whether or not, as subrogee, it is chargeable with the negligence, if any, of the driver of the White tractor.

The briefs of the parties discuss bailor-bailee relationships and the Michigan Ownership Liability Statute, MSA 9.2101, Comp.Laws 1948, § 257.401 P.A. 1949, No. 300.

The resolution of this question, however, rests upon a primary principle of law: a subrogee stands in the shoes of his subrogor, and acquires no greater rights than the one whose claim he assumes by reason of the subrogation agreement. Preferred Ins. Co. v. United States, 9 Cir., 222 F.2d 942, cert. den. 350 U.S. 837, 76 S.Ct. 74, 100 L.Ed. 747, reh. den. 351 U.S. 990, 76 S.Ct. 1044, 100 L.Ed. 1502; Aetna Ins. Co. v. United States, 159 F.Supp. 831, 142 Ct.Cl. 771, reh. den. D.C., 162 F.Supp. 442. See Metropolitan Casualty Ins. Co. v. First Natl. Bank in Detroit, 261 Mich. 450, 246 N.W. 178.

The facts of this case reveal that at the time of the collision, the insured vehicle was being driven by a man apparently conceded to be an employee at least of A & C Carriers. Thus, as to that portion of the claim, the question for this court becomes whether or not any negligence of the driver is imputed to his employer in an action against a third party.

Plaintiff relies exclusively on Universal Underwriters Insurance Co. v. Hoxie, 375 Mich. 102, 133 N.W.2d 167, as authority for the proposition that imputed negligence is abolished in Michigan.

Despite dictum to that effect in the opinion, the doctrine of imputed negligence, as outlined in the Hoxie opinion, has been applied only in driver-passenger situations. Hoxie, supra; Sherman v. Korff, 353 Mich. 387, 91 N.W.2d 485; Ter Haar v. Steele, 330 Mich. 167, 47 N.W.2d 65; Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97; Parks v. Pere Marquette Ry. Co., 315 Mich. 38, 23 N.W.2d 196.

Those situations are clearly distinguishable from the one at bar, for in all of those cases, the party who would have been subrogor was held to be free from negligence for the purposes of the suit. Indeed, in Hoxie, supra, a subrogee's suit was permitted, but this followed an express finding that the Ownership Liability Statute did not apply for purposes of a suit by a guilt-free owner-subrogor against a third party.

The subrogor in Count II of the suit is A & C Carriers, and under the principles of the master-servant relationship, the negligence of their driver is clearly their own. Murphy v. Kuhartz, 244 Mich. 54, 221 N.W. 143; Stewart v. Napuche, 334 Mich. 76, 53 N.W.2d 676, and cases cited therein at 334 Mich. 79, 53 N.W.2d 677. The argument advanced by plaintiff in this regard would lead to anomalous results.

Public policy has resulted in the doctrine of respondeat superior, which makes an employer liable for his employee's negligence in the course of his employment. Murphy, supra. However, the employer does have a right of action against the negligent employee for damages suffered as a result of this negligence. Grusiecki v. Jaglay, 260 Mich. 9, 244 N.W....