Weber v. Stokely-Van Camp, Inc.

• Decision Date: 29 July 1966
• Docket Number: STOKELY-VAN,No. 39967,39967
• Parties: Joseph C. WEBER, Appellant, v.CAMP, INC., Respondent.
• Court: Minnesota Supreme Court

Page 540

144 N.W.2d 540

274 Minn. 482

Joseph C. WEBER, Appellant, v. STOKELY-VAN CAMP, INC., Respondent.

No. 39967.

Supreme Court of Minnesota.

July 29, 1966.

Syllabus by the Court

1. The rule that the negligence of a servant is imputed to a master so as to bar his right of recovery against a negligent third party if the master is vicariously liable to third parties is abandoned in automobile negligence cases.

2. Affidavits obtained from jurors after the trial relating to conduct or discussions during deliberations may not be used to impeach a verdict. As to alleged misconduct outside the jury room, we adhere to the practice suggested in Schwartz v.Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301. Since that practice was not followed here we concur in the trial court's conclusion, based on affidavits and counteraffidavits, that the alleged misconduct was not sufficient to warrant a new trial.

Frundt & Hibbs, Blue Earth, for appellant.

Robb, Robb, & Van Eps, and M. W. Gaughan, Minneapolis, for respondent.

OPINION

KNUTSON, Chief Justice.

This is an appeal from an order denying plaintiff's motion for judgment notwithstanding the verdict or a new trial.

Plaintiff, Joseph C. Weber, is engaged in the business of supplying and servicing vending machines and coin-operated games in an area in Minnesota involving part of Martin County. Maynard S. Sunken was employed by Weber in such business.

Warren Curtis Musser was an employee of defendant, Stokely-Van Camp, Inc.

On September 18, 1963, while Sunken was driving Weber's 1962 Chevrolet pickup truck in the scope of his employment he was involved in a collision with a 1963 Ford pickup truck owned by defendant and driven by Musser, also engaged in the scope of his employment. Weber, riding with Sunken at the time of the collision, suffered personal injuries along with damage to his truck. He sued defendant for the negligence of its agent Musser. Defendant answered, denying any negligence on the part of Musser, and alleged the contributory negligence of Weber's employee which, when imputed to Weber, would bar recovery.

It is admitted that while Sunken would usually drive when he and Weber were on business trips together, Weber frequently told him where to go and what route to take. Sunken testified that Weber did not direct him in his driving but that he would have obeyed any order had it been given.

The court instructed the jury that as a matter of law the negligence of Sunken would be imputed to Weber under these circumstances. The jury returned an 11 to 1 verdict for defendant and this appeal followed.

The questions presented are whether the court erred in the above instruction, and whether certain members of the jury were guilty of such misconduct as to demand a new trial. The facts pertinent to this latter issue will be stated when the issue is discussed.

1. It must be conceded that based on existing case law the trial court's instruction concerning imputed negligence was correct, and if Sunken was found to be contributorily negligent, Weber cannot recover. The rule is based on the right of control, not the exercise of it; and illogical as the rule may be, the master has a theoretical right to control under the facts of this case, even though he does not exercise it and has little or no opportunity to do so. Essentially, imputation of the negligence of a servant to a master rests on a so-called 'both-way test'--that is, if the master is vicariously liable to a third party due to the agent's negligence, he is also barred from recovery because his agent's negligence is imputed to him. In Frankle v. Twedt, 234 Minn. 42, 45, 47 N.W.2d 482, 486, we said:

'* * * On the basis of an agency relationship, the negligence of an agent is imputed to his principal as a bar to the latter's right of recovery, in an action which he brings against a third party, Only when the nature of the agency relationship is such that the principal would be subject to a vicarious liability as a defendant to another who may have been injured by the agent's negligence.'

While plaintiff does not seriously dispute the existing rule, he argues that the rule is unjust and ought to be abandoned. There is much merit in his position. In Christensen v. Hennepin Transp. Co., Inc., 215 Minn. 394, 10 N.W.2d 406, 147 A.L.R. 945, we held the negligence of a bailee was not to be imputed to a bailor in an action by the plaintiff-bailor against a third party to recover damages for personal injuries, even though under our Financial Responsibility Act, Minn.St. 170.54, the bailor would be liable to a third party injured by the negligence of the bailee. ¹

The whole doctrine of imputed negligence probably had its inception in an 'unfortunate' ² English decision, Thorogood v. Bryan (1849) 8 C.B. 115, 137 Eng.Rep. 452, holding that the negligence of an omnibus driver was imputed to a passenger precluding the right of the passenger to recover for injuries caused by the negligent operation of another vehicle. That decision met with little favor in this country and was likewise subsequently repudiated in England. Many of the cases refusing to follow Thorogood are collected in Little v. Hackett, 116 U.S. 366, 371, 6 S.Ct. 391, 393, 29 L.Ed. 652, 654, where the court said:

'That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong. It would seem that the converse of this doctrine should be accepted as sound--that when one has been injured by the wrongful act of another, to which he has in no respect contributed, he should be entitled to compensation in damages from the wrongdoer. And such is the generally received doctrine, unless a contributory cause of the injury has been the negligence or fault of some person towards whom he sustains the relation of superior or master, in which case the negligence is imputed to him, though he may not have personally participated in or had knowledge of it; and he must bear the consequences.'

From that statement and others like it the rule has evolved that where a certain relationship exists between parties, such as master and servant, the negligence of the one, that is the servant, is imputed to the master barring his right of recovery even though he is completely innocent of any fault. If negligence is based on fault, it is difficult to rationalize imputed negligence where the party seeking recovery is without fault. Many of the reasons for imputing negligence of a servant to a master in a suit by an injured third party--that is, making the master vicariously liable to the injured third party--are discussed in Prosser, Torts (3 ed.) § 68. It would serve no useful purpose to elaborate on them here. Probably the most popular reason is to provide the injured person with a 'deep pocket.' In other words, vicarious liability is attached to the master-servant relationship, providing the injured person with a defendant who in all likelihood can respond in damages if he establishes a right thereto. There may be some justification for the rule of vicarious liability even though the master is without fault; but from vicarious liability has come the companion rule imputing to the master the negligence of the servant when the master seeks to recover for his own damage and injury, even though the master was not at fault. There is no necessity for creating a solvent defendant in that situation, nor can any of the reasons given for holding a master vicariously liable in a suit by third persons be defended on any rational ground when applied to imputing negligence of a servant to a faultless master who seeks recovery from a third person for his own injury or damage. Why should the negligent third person escape liability under these circumstances? Here the logic, if there is any, for imputing negligence to a faultless plaintiff in a suit by him against a third party is completely lacking. Yet, regardless of the illogic of the rule, it has been universally accepted in this country.

This rule has become known as the bothways rule. ³ It has come under increasing criticism in recent years. Originally the contributory negligence of a bailee was imputed to a bailor the same as the contributory negligence of a servant was imputed to a master. ⁴ Many of the courts throughout the country have repudiated this doctrine long ago. We did so in Christensen v. Hennepin Transp. Co., Inc., 215 Minn. 394, 10 N.W.2d 406, 147 A.L.R. 945, which was followed in Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429. There are other equally inconsistent applications of the rule. For instance, the negligence of the servant is not imputed to the master in a suit by the master against the servant, but when he sues a third-party join tortfeasor, he is barred from recovery from such third party. In the case of a joint enterprise, the negligence of one of those so engaged is imputed to all in a suit against a third person ⁵ but not in a suit inter se. Berlin v. Koblas, 183 Minn. 278, 236 N.W. 307; Murphy v. Keating, 204 Minn. 269, 283 N.W. 389, 23 Minn.L.Rev. 666.

From an examination of the authorities there is just no way to rationalize the rule of imputed contributory negligence. As we said in the Christensen case, involving our Financial Responsibility Act, Minn.St. 170.54, in holding that the contributory negligence of a bailee would not be imputed to a bailor (215 Minn. 413, 10 N.W.2d 417, 147 A.L.R. 958):

'The very reason for holding the consenting owner liable for negligence of the operator of his automobile, that of furnishing financial...