Dortman v. Lester , 3 Mich. App. 600 ( 1966 )

3 Mich. App. 600 (1966) 143 N.W.2d 130

DORTMAN
v.
LESTER.

Docket Nos. 423, 652.

Michigan Court of Appeals.

Decided June 28, 1966. Leave to appeal granted November 14, 1966.

Peter E. Bradt, for plaintiffs.

Schlee, McIntosh, Simpson, Oppliger & Mugan (Gerald E. Mugan, of counsel), for defendant Harger H. Lester.

Leave to appeal granted by Supreme Court November 14, 1966. See Mich 739, 380 Mich. 80.

LESINSKI, C.J.

Appeal is taken by plaintiffs from summary judgments granted in favor of defendant Harger H. Lester in each of two cases which were consolidated herein for purposes of hearing and decision on the merits.

The actions arose out of a collision which occurred on October 13, 1961, when the motor vehicle of defendants Barre E. Lester and Lucille Lester, his mother, ran into the rear of a motor vehicle occupied by plaintiff Frances A. Dortman, the wife of plaintiff Ralph Dortman.

The complaint in each case alleged that Harger H. Lester and Lucille Lester were the parents of Barre E. Lester, age 18 years and 7 months, who was subject to their orders, direction, and parental control at the time of the accident. The complaints also alleged that for some time prior to the collision of October 13, 1961, Harger Lester had permitted Barre E. Lester to operate said motor vehicle upon the public highway, although said parents knew or in the exercise of due care should have known that Barre E. Lester was an incompetent, inexperienced, unsafe, careless and reckless driver, and as a motor vehicle operator was likely to speed, drive recklessly and cause injury to others.

The complaints for purposes of this appeal adequately stated a cause of action as to Barre E. and Lucille Lester.

Pursuant to leave granted, each complaint was amended to allege that Barre E. Lester was living at home with his parents at the time of the collision and, alternatively, that the motor vehicle was a family car owned and used for the benefit of all defendants, and that at the time complained of the minor was operating it as the agent of his parents.

In both cases a motion for summary judgment in favor of Harger H. Lester was filed on the ground that he did not own the motor vehicle; that in driving it his son was not acting as his agent; that he did not negligently entrust the vehicle to his son; and that at the time of the collision he was not in the Lester vehicle. This motion was supported by the affidavit of Harger H. Lester.

The issue before this Court is whether a parent of an 18-year-old minor living at home and known to the parent to be a reckless and incompetent driver, is negligent in allowing the child to own and operate a motor vehicle upon the public highway.

Under the law of this State a minor child is allowed to have ownership of a motor vehicle. As stated in Parks v. Pere Marquette R. Co. (1946), 315 Mich. 38, 44:

"A minor may own an automobile; and if he is of sufficient age and judgment he not only has the legal ability to control its use and operation, but he is legally chargeable with that responsibility." (Emphasis supplied.)

See, also, Semmens v. Floyd Rice Ford, Inc. (1965), 1 Mich. App. 395, 401.

Further, under the statutes of this State, a minor over 18 years of age is allowed to have an operator's license allowing him to drive upon the public streets and highways of this State, and there is no requirement for prior parental consent as a condition to issuance of same. See CLS 1961, § 257.308 (Stat Ann 1960 Rev § 9.2008).

The fact that a minor of 18 years may have an operator's license, without parental consent, makes the case at bar stronger for the defendant than Shaler v. Reynolds (1960), 360 Mich. 688. In Shaler a 16-year-old minor injured the plaintiff in a car owned and driven by the minor. As to the mother of the minor who signed the application for the operator's license, the court held no liability. Thus, in a case wherein the parent was in a position to prevent the minor from acquiring an operator's license and the court held no liability, certainly no liability can fall upon the parents for the driving of the minor when the minor can obtain an operator's license without parental consent.

Also the law is clear that no liability can attach to the parent for the negligent acts of his minor child except as provided by statute. See CLS 1961, § 600.2913, as amended by PA 1962, No 23 (Stat Ann 1962 Rev § 27A.2913). This case does not come under the provisions of this statute.

Further, the plaintiffs rely on the act of the parent as the act of negligence, to wit: allowing an incompetent, negligent minor child to drive a motor vehicle which the child owns or is part owner of upon the public streets and highways of this State.

The only basis on which liability herein could be predicated is the theory of "negligent entrustment." However, this principle as set down in Tanis v. Eding (1933), 265 Mich. 94; Perin v. Peuler (1964), 373 Mich. 531 (rehearing, 369 Mich. 242), has no application in this case unless there is a showing that the party in fact had a capacity to exercise a control over the object entrusted. The presumption herein is that ownership of the automobile being in the name of Barre E. Lester and his mother, they alone had control. The plaintiffs did nothing to rebut this presumption so as to raise a genuine issue of fact. In short, the plaintiffs filed no affidavits to rebut the one filed by the defense, and the trial judge had no alternative but to institute the summary judgment procedure outlined in GCR 1963, 117.2(3), 117.3, 117.4. See Durant v. Stahlin (1965), 375 Mich. 628; Green v. Lundquist Agency, Inc. (1966), 2 Mich. App. 488; and Christy v. Detroit Edison Company (1966), 2 Mich. App. 730.

Judgments affirmed. Costs to appellee.

T.G. KAVANAGH and QUINN, JJ., concurred.