Haring v. Myrick

368 Mich. 420 (1962) 118 N.W.2d 260

HARING
v.
MYRICK.

Docket Nos. 35, 36, Calendar Nos. 49,742, 49,743.

Supreme Court of Michigan.

Decided December 4, 1962.

Marcus, McCroskey, Finucan & Libner and Russell L. Shepherd (Thomas W. Finucan, of counsel), for plaintiffs.

Reber & Reber, for defendant Church.

SOURIS, J.

At common law, a master is liable for injuries negligently inflicted by his servant upon another only when the servant is then acting within the scope of his employment. Hartley v. Miller, 165 Mich. 115 (33 LRA NS 81, 1 NCCA 126); Riley v. Roach, 168 Mich. 294 (37 LRA NS 834); and Brinkman v. Zuckerman, 192 Mich. 624. If a negligent injury occurs while the servant is engaged in pursuit of his own affairs and not those of his master, it makes no difference, ordinarily, that the injury is inflicted by use of an instrumentality belonging to the master. Brinkman v. Zuckerman, supra, 628. However, by statute such as CLS 1956, § 257.401 (Stat Ann 1960 Rev § 9.2101), the common law has been modified to the extent that the owner of an automobile is liable for injuries resulting from its negligent operation if it is being driven with the owner's express or implied consent whether or not the relation of master and servant exists between the owner and the driver. In each of these circumstances, where liability is imposed upon the master or the owner, it is a vicarious liability stemming from the negligence of the servant or of the driver to whom an owner has entrusted his automobile.

There is another circumstance, however, where liability at common law is imposed upon the owner of a chattel for injuries resulting from its negligent use by another. Such liability arises when the owner permits an incompetent or inexperienced person to use his chattel with knowledge that such use is likely to cause injuries to others. Apart from such statutes as that cited above, the owner of a motor vehicle may not entrust it to such a person without liability for resulting negligent injuries to others. 36 A.L.R. 1137, 1148; Naudzius v. Lahr, 253 Mich. 216, 229 (74 A.L.R. 1189, 30 NCCA 179); Tanis v. Eding, 265 Mich. 94, 96;^[1] and Elliott v. A.J. Smith Contracting Co., 358 Mich. 398, 414. In such circumstances, the owner's liability is also in part vicarious for it cannot arise unless the person entrusted with the automobile uses it negligently; but, the primary basis for the owner's liability is said to be his own negligence in permitting its use by an incompetent or inexperienced person with knowledge of the probable consequences.

In the case at bar, the trial court dismissed, on motion and before answer, 2 declarations (in cases treated as consolidated both in the trial court and on appeal) as against 1 of several defendants. The dismissed defendant, appellee here, was declared by plaintiffs to be the owner of an automobile which was being repaired by his minor son. Gasoline, or gasoline fumes, from the car's tank came in contact with a heating appliance being used by the son to thaw a frozen gasoline line and ignited, burning 1 of the plaintiffs who was standing nearby. The trial judge properly ruled that CLS 1956, § 257.401 (Stat Ann 1960 Rev § 9.2101) was not applicable to impose liability upon appellee-owner because the motor vehicle was not being driven at the time the fire occurred. The express language of the statutory provision precludes its application to the facts of this case.

However, apart from the statute, plaintiffs' declarations alleged causes of action against appellee as owner of the automobile within the common-law rules discussed in the forepart of this opinion. As in this appeal, Tanis v. Eding, supra, involved dismissal of a declaration by the trial court because of the inapplicability of the statute, the dismissed defendant not having taken title yet to the motor vehicle. The dismissal was reversed, however, on the ground that a common-law cause of action also had been pleaded against him. The court distinguished cases like Hartley v. Miller, supra, and Brinkman v. Zuckerman, supra, which turned upon the doctrine of respondeat superior, and noted that plaintiff's declaration alleged the dismissed defendant^[2] had loaned the car to a person he knew was an incompetent driver. Commenting that the precise issue was new in this State, we quoted (pp 96, 97) the following from 36 A.L.R. 1137, 1148, as representing the overwhelming weight of authority:

"`The general rule that an owner of an automobile is not liable for the negligence of one to whom the automobile is loaned has no application in cases where the owner lends the automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile; in such cases the owner is held liable for injuries caused by the borrower's negligence on the ground of his personal negligence in entrusting the automobile to a person who he knows is apt to cause injuries to another in its use.'"

The pertinent allegations of duty, breach, and damage contained in the identical declarations at bar are:

"6. That it was then and there the duty of defendant Harry Church to exercise due care as to the use, maintenance, repair and operation of his automobile and to refrain from permitting its use, maintenance, operation and repair by an unskilled and inexperienced person. * * *

"8. That defendant Harry Church * * * was guilty of negligence * * * as follows:

"(a) In that Harry Church permitted his automobile to be in the custody of an unskilled and inexperienced person.

"(b) In that Harry Church failed to properly instruct and warn Jerry Church in the use, maintenance and repair of his automobile.

"(c) In that Harry Church failed to properly supervise and control the use, maintenance, operation and repair of said automobile. * * *

"9. That as a result of the negligence aforesaid and while Jerry Church was blowing the gas line from the forward part of said automobile fumes from said gas line and gas tank sprayed onto Archie Haring and were drawn, by up draft or otherwise, to a heating appliance Jerry Church had placed under said automobile causing said fumes and gasoline to burst into flame. That Archie Haring's clothing and body became ignited and burned causing Archie Haring to be severely, painfully, and permanently injured and scarred."

These allegations, if proved, would support a verdict and judgment against appellee on the strength of the common-law rule of Tanis v. Eding, supra. The rule of that case is not, like the statutory rule, so limited that its principle applies only to cases where automobiles are loaned to be driven. The rule, as stated in Tanis, applies with equal force whatever the intended use, provided only that the user's competence is inadequate therefor.^[3]

Reversed and remanded. Cost to appellants.

CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, OTIS M. SMITH, and ADAMS, JJ., concurred.

NOTES

[1] The interesting and protracted litigatory history of the events from which this case arose can be found beginning in Kimber v. Eding, 262 Mich. 670, followed by Tanis v. Eding, supra; Tanis v. Eding, 274 Mich. 288; Tanis v. Eding, 280 Mich. 440; and ending in Westrate v. Schipper, 284 Mich. 383.

[2] Although the Court had previously found defendant had not taken title to the automobile and was not its owner within the meaning of the statute, for purposes of imposing common-law liability, it was sufficient that he possessed the car and exercised control over it.

[3] See section 213 of the 1 Restatement, Agency (2d) which states the rule as follows:

"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

"(a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or

"(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others;

"(c) in the supervision of the activity; or

"(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control."