Universal Underwriters Ins. Co. v. Hoxie, 18

• Decision Date: 01 March 1965
• Docket Number: No. 18,18
• Citation: 133 N.W.2d 167,375 Mich. 102
• Parties: UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a foreign corporation, Plaintiff and Appellant, v. Richard HOXIE, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 167

133 N.W.2d 167

375 Mich. 102

UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a foreign corporation, Plaintiff and Appellant, v. Richard HOXIE, Defendant and Appellee.

No. 18.

Supreme Court of Michigan.

March 1, 1965.

Mitts, Smith & Haughey, Grand Rapids (Sherman H. Cone, Grand Rapids, of counsel), for plaintiff and appellant.

Fraser, Trebilcock, Davis & Foster, Lansing, for defendant and appellee.

Before the Entire Bench.

ADAMS, Justice.

The facts in this case are undisputed. An accident occurred at an uncontrolled country road intersection when two automobiles collided due to negligence by both drivers. A salesman for Breimayer Chevrolet Sales Company was on a demonstration drive. The Breimayer car was under the sole operation and control of the car shopper, one of the negligent drivers. Plaintiff, subrogee of Breimayer, sued to recover from the second driver the damages to that automobile.

The case was tried to the court. Judgment was entered of no cause for action, based on a finding that under section 401 of the Michigan vehicle code (C.L.S.1961, § 257.401 [Stat.Ann.1960 Rev. § 9.2101]) ¹ the negligence of the driver of the Breimayer automobile should be imputed to the owner.

The trial judge reasoned:

'Since the owner's liability statute does charge the owner with the negligence of the driver, it would appear logical that such negligence cannot be shed when the owner desires to recover for his damage from the third party who contributed to his damage.'

The statute is a liability statute. It creates liability for a wrong. Nowhere does it deny to an owner the right to recover for a wrong done to him.

The doctrine of imputed negligence was abolished by this Court in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697. As was noted by the Court in that case, the doctrine was based on the theory that the passenger was so identified with the driver that unless the driver was free from negligence the passenger could not recover.

The Court concluded:

'Ever since 1872 we have adhered to the imputed negligence rule. We have recognized from time to time the changes brought about by the innovations of science and engineering, and we have carefully considered at much length the implications of the rule, its application, and the effect of its abandonment. As a result of our study and observation we are convinced that in the long run the application of the rule is more harmful than helpful and results in more injustice than it prevents; and that we should not continue the invariable application of the so-called imputed negligence rule merely and solely on the ground that the injured person was a voluntary, gratuitous passenger in an automobile, the driver of which was guilty of negligence which was a contributing proximate cause of an accident and injury to such passenger.

'Our holding herein should not be construed as excluding under appropriate circumstances the defense of contributory negligence on the part of the passenger, if relative to the cause of the accident the passenger failed to exercise such reasonable care and caution as he should have exercised under the circumstances.' (Emphasis supplied.)

Ever since then, there have been attempts from time to time, by virtue of some legal relationship or theory of control, to identify a passenger or car owner with the driver in such a way as to keep alive the doctrine of imputed negligence.

Parks v. Pere Marquette Railway Co., 315 Mich. 38, 23 N.W.2d 196, upheld a charge to the jury as to negligence by the owner where a 17-year-old driver, without a driver's license, was driving with the permission and under the instructions of the injured-passenger owner. In that situation, the negligence of the driver was charged to the owner. There is language in the opinion which would indicate that 'the right of control' of the vehicle, as opposed to actual control, is the test to be applied; but the facts in that case were such as to justify a finding of contributory negligence on the part of the owner-passenger since it was his actions which led directly to the negligence by the 17-year-old driver.

In Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97, an owner-passenger was allowed to sue his own driver for injuries sustained due to the sole negligence of the driver. The rule stated in Bostrom is:

'The negligence of an agent is not imputable to his principal nor that of a member of a joint enterprise to his fellow member in an action by the latter against the former.'

In Ter Haar v. Steele, 330 Mich. 167, 47 N.W.2d 65, recovery was denied to plaintiff-employer in a suit against another driver because of the contributory negligence of the employee-driver of plaintiff's car. The case was tried on the assumption:

'Neither party questions the law that any contributory negligence of Underhill's would be imputable to his employer, the plaintiff.'

In the cases of Marrs v. Taylor, 327 Mich. 674, 42 N.W.2d 780, and Miller v. Pillow, 337 Mich. 262, 59 N.W.2d 283, the question came before this Court but did not reach decision because in each case the jury found no contributory negligence by the owner's driver.

In Sherman v. Korff, 353 Mich. 387, 91 N.W.2d 485, the plaintiff husband sustained personal injuries in a collision caused by the joint negligence of his wife and defendant driver of the second car. This Court reversed a judgment in favor of the defendant, based upon a fictional theory of control of the car by the husband, and permitted the husband to recover. Justice Talbot Smith, writing the majority opinion, noted:

'It [imputed negligence] was a pernicious doctrine in its lifetime. In its reincarnation it is no more appealing. It employs a discredited fiction to deny a just result.

'Our case involves a motor-vehicle passenger who was injured through the negligence of others. He, himself, is free from fault. Yet his action against one of those responsible for his injuries is said to be barred. * * *

'This conclusion results, apparently, from the holding that they were joint adventurers. * * * it is thought to follow that the contributory negligence of the driver should be imputed to the spouse passenger, thereby depriving him of recovery against a negligent third person, though the injured spouse himself was without personal fault. To paraphrase, the husband's teeth have been set on edge because his wife ate sour grapes. Is this law or is it magic?

'* * * Yet we must still contend with the doctrine. It has survived, in Huxley's words, 'long after its brains have been knocked out.' * * *

'Actually there is no right to control, in the case before us, in any matter causally connected with the accident, and the imputation of negligence upon such grounds is clear error.

'When we are interpreting such words as 'agent' and 'control,' we must constantly ask, Agency for what purpose? Control in what respect? It is hornbook learning that because one is an agent for one purpose he is not an agent for all. An agent to sell and convey lands has no authority to mortgage. Restatement, Agency, § 67 (2). No more can we say that because joint ownership results in real control for some purposes (e. g., transfer of title), there is control for all purposes (e. g., steering and braking while car is being driven by another).'

Sherman v. Korff, supra, and section 401, Michigan vehicle code, are concerned with the right of recovery of an innocent person for damages resulting because of the negligence of another. The doctrine of contributory negligence is concerned with barring recovery between wrongdoers. It does not merity extension to the innocent simply because they are employers, principals, members of a joint enterprise, or gratuitous passengers.

'The right to control' or constructive control, absent contributory negligence of a passenger or owner, is insufficient to charge them with the negligence of the driver. In the present case, the car was under the sole operation and control of the driver. The owner was in no way responsible for the negligence. There being no bar in the statute, Breimayer's subrogee may recover.

In a given case, this could result in allowing two owners of motor vehicles to recover their damages from each other as a result of the negligence of the drivers of their vehicles, but it would seem better that the doors of the courts be open to make right two wrongs than that they be closed to those who have been wronged in their persons or property.

The judgment of the circuit court is reversed and the case is remanded for entry of judgment of $931.90, with costs to appellant.

BLACK, J., concurred in result.

KAVANAGH, C. J., and SOURIS, J., concurred with ADAMS, J.

O'HARA, Justice.

While I am constrained to agree with the result reached by Mr. Justice Adams, I am unable to sign his opinion because I do not agree with the statement:

'The doctrine of imputed negligence was abolished by this Court in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697.'

Bricker v. Green was a landmark decision in our tort liability-jurisprudence. I applauded it as a practicing attorney and I reaffirm my adherence to its salutary rule as a Judge. But note its decisional paragraph, at p. 235, 21 N.W.2d at p. 111:

'* * * we should not continue the invariable application of the socalled imputed negligence rule merely and solely on the ground that the injured person was a voluntary, gratuitous passenger in an automobile, the driver of which was guilty of negligence which was a contributing proximate cause of an accident and injury to such passenger. * * *'

As I read Bricker it did not abolish the 'doctrine of imputed negligence.' Rather it repudiated the doctrine as it has previously been applied in actions by a blameless passenger against a third party.

In Ter Haar v. Steele, 330 Mich. 167, 47 N.W.2d 65, decided by a unanimous Court 5 years after Bricker, the first head-note recognized the continued existence of imputed...