Perin v. Peuler

On Rehearing

Black, J.

This case (Docket No. 49,783), having been ordered reheard, was resubmitted July 17,1963 and again on April 9, 1964, together with the like case of Tortora v. General Motors Corporation (Docket No. 49,435). In the main Tortora has presented the same questions as have been briefed and argued to the Court on rehearing of the instant case. Tortora, fully tried to court and jury as that case was, should be read and considered with what is to follow. See opinions of the Tortora Case, 373 Mich 563.

Our previous disagreement (Perin v. Peuler, 369 Mich 242, 247) gave birth to a new issue defendants’ counsel would have us decide on rehearing. That issue, headed “Statement of Additional Question Involved,” is submitted this way:

“There is no liability for negligent entrustment of' an automobile by an owner whose liability is purely statutory under the provisions of the civil liability act, CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101).”

While the quoted issue — not having been raised below — is not properly here, the signers of this opinion are agreed that the Court should decide it, the better to quiet the fears of contemporary Cassandras that a new right of action may have been born out of legal wedlock when the majority opinions of Elliott v. A. J. Smith Contracting Co., 358 Mich 398, and Perin v. Peuler, supra, were handed down.

- That we may in apt circumstances determine a new legal issue, provided such issue has been adequately *535 presented and briefed, was settled again when Dation v. Ford Motor Co., 314 Mich 152 (19 NCCA NS 158) came to unanimous decision. See cases cited therein at 159. And a firm determination of the quoted issue should bring a measure of overdue aid, not only to an understandably perplexed profession but also to Michigan’s beset and dismally failing effort to prevent traffic carnage. It may, at very least, awaken some overindulgent parent to the fact that, from the beginning in instances disclosed as at bar, his personal, distinguished from vicarious, toes have been exposed to the heavy boot-step of liability whether he is owner or lender of the motor car that known-to-be unfit son or daughter has driven to the causally actionable injury of another. We proceed accordingly.

The undersigned hold, on rehearing:

That the common-lav/ duty of the owner or lender of a motor vehicle to refrain from placing it in the hands of a known unfit or incompetent driver for operation on our public highways, stands unimpaired by Michigan’s 55-year-old owner-liability statute (PA 1909, No 318, § 10, subd 3, p 780; see, currently, CLS 1961, §257.401; Stat Ann 1960 Rev § 9.2101). When and if the legislature decides to eliminate the common-law right of action which arises from negligent entrustment of a motor car, doubtless it will say so by reasonably explicit enactment. That body has not done so, as yet, as herein cited Tanis, Elliott, and Haring plainly tell us.

When this Court — in 1933 — unequivocally applied such common-law rule to a motor car lender (Tanis v. Eding, 265 Mich 94); a full quarter century after Michigan’s owner-liability statute had become effective, it necessarily came to the same conclusion as did the Iowa supreme court some years later in Krausnick v. Haegg Roofing Co., 236 Iowa 985, 989 (20 NW2d 432, 434, 435, 163 ALR 1413, 1417). Krausniclc is cited in direct support of the new text of *536 8 Am Jur 2d, Automobiles and Highway Traffic, § 573, “Effect of entrusting vehicle to incompetent or reckless driver,” pp 125, 127:

' “Even though in some States statutes have been enacted which have the general effect of making the owner of a motor vehicle liable for injuries negligently inflicted as a result of the use or operation of such vehicle by persons other than the owner himself, if the operation of the vehicle was within the scope of the owner’s consent, the common-law liability for entrusting the operation of one’s motor vehicle to a known incompetent driver is not superseded thereby.” (Italics by present writer.)1

We adopt such text and hold that the quoted new issue should be answered in the negative.

That this Court should, on rehearing, definitely reaffirm its adherence to the rule adopted in Tanis, supra, quoted as follows (Tanis at 96, 97):

“The precise question is new in this State. The overwhelming weight of authority supports the following :

“ ‘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.’ 36 ALR 1148.”2

.There is nothing startling about this rule of personal liability, whether the entrusting person is *537 “owner” of the entrusted chattel or not. This Court reaffirmed it, carefully and unanimously no more than 18 months ago, in Haring v. Myrick, 368 Mich 420, 424, 425. On that occasion the Court applied, to a case where the defendant automobile owner ivas charged with negligent entrustment, Restatement’s pertinent common law text (Haring at 426). To make this perfectly plain, there is presented below what 7 presently seated Justices then attested, without reservation (p 423):

“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 Avhen 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 ALR 1137, 1148; Naudzius v. Lahr, 253 Mich 216, 229 (74 ALR 1189, 30 NCCA 179); Tanis v. Eding, 265 Mich 94, 96; 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 he his own negligence in permitting its use by an incompetent or inexperienced person with knowledge of the probable consequences.”

Before proceeding to divisions 3 and 4, infra, some additional comment upon Tanis’ rule is in order.

First we note that Tanis’ adoption thereof was in the setting of a case Avhere the defendant lender — a car dealer- — was not, technically at the time of Sophie Tanis’ injury, “owner” of the car Yredeveld had turned in to him on an otherwise completed car deal. Nonetheless this Court applied what it said was a rule supported by “the overwhelming weight of au *538 thority”; a rule which applies to mere lenders as well as to owner-lenders. Thus the plaintiff in negligence may rely upon the owner-liability statute to hold the owner responsive for negligent operation of the latter’s motor vehicle by another, and at the same time rely upon the quoted rule to hold the owner responsive for personal negligence arising out of negligent entrustment of such motor vehicle; provided, of course, such statutorily imputed negligence and such personal negligence are causally connected with the plaintiff’s injury. Such reasoning merely pursues Elliott, supra, at 411:

“What has been said here? Simply that plaintiff has 2 theories for defendant’s liability: (1) defendant’s alleged negligence in entrusting a motor vehicle to an employee unfit to be at the wheel, and (2) defendant’s vicarious liability for the negligence of an employee acting within the scope of his employment. These are 2 perfectly valid theories.”

For an instance where precedent conduct of an entrustee of a motor car, if that conduct was known to the entrusting owner at the time of or during continuation of the entrustment, may — if causally connected — make a jury question of personally actionable negligence on the part of such entrusting owner, consider the Tortora Case, supra.

Second, the entrustment rule definitely requires proof of knowledge (or of facts giving rise to an inference of knowledge), on the part of the owner or lender, of the unfitness or incompetence of the entrusted driver. The plaintiff must, perforce, prove the essentials of what by his allegation has become his burden. As the supreme court of Ohio concluded, in the factually like case of Gulla v. Straus, 154 Ohio St 193, 201 (93 NE2d 662, 666):

“In a case such as the instant one, the burden is upon the plaintiff to establish that the motor vehicle *539 was driven with the permission and authority of the owner; that the entrustee was in fact an incompetent driver; and that the owner knew at the time of the cntrustmont that the entrustee was incompetent or unqualified to operate the vehicle, or had knowledge of such facts and circumstances as would imply knowledge on the part of the owner of such incompeteney.”

Third, in addition to the requirement of precedent knowledge (on the part of the entrusting owner or lender) of the unfitness or incompetence of the entrusted driver, the entrustment must be causally connected with the injury of which the plaintiff complains. It could not be sensibly contended, for instance, that the entrusted driver, thus known to be unfit or incompetent, had started any chain of causation back to the entrustor if such entrusted driver, in the operation of the entrusted car, had himself committed no act or omission constituting actionable negligence. He might be wholly unfit to drive, and the fact of knowledge of such unfitness might have been proclaimed the night before by the entrusting owner or lender, yet if on the occasion of the plaintiff’s injury such entrustee was not himself causally negligent in the operation of the entrusted car, no right of action in favor of such plaintiff could arise against either the entrustee or entrustor. The element of causal connection between negligent entrustment and injury would be lacking, as much so as if the negligence complained of should be that of permitting the entrustee to drive the entrustor’s car without license plates in violation of statute. See, to the point, Spencer v. Phillips & Taylor, 219 Mich 353.

In all cases such as we consider here the cause of the plaintiff’s injury must be proximately connected to some negligent act or omission for which either *540 the entrustor or the entrustee is legally responsible. Our rule, first announced by the Court in Lewis v. Flint & Pere Marquette R. Co., 54 Mich 55 (52 Am Rep 790), is that “There can be no recovery for an injury that is not a proximate consequence of the negligence complained of; the court cannot select some cause back of the proximate one whereon to base an action.” (Minneapolis F. & M. Ins. Co. v. Porter, 328 Mich 11, 18, citing the Lewis Case.) All of which may be too elemental for inclusion, yet we insert it to overcome guileful or guileless misunderstanding of the showing a plaintiff — as at bar — must make in order to support a charge such as this plaintiff proposes by way of amendment.

That the statute3 goes too far in limiting submission and reception of what may be and usually is evidence of value in civil cases. Should it be permitted further life, as proscribing admissible evidence to any extent? We think not, unnecessary controversy and iniquitous injustice in the application thereof having multiplied ever since the statute was thrust, in 1949, into the then pertinently stable rules of evidence (PA 1949, No 300, § 731, p 588).

Not until recent years has this Court paused for reflection upon its constitutional position vis-a-vis the legislative branch (Love v. Wilson, 346 Mich 327; Darr v. Buckley, 355 Mich 392) when that branch assumes to enact rules of practice and procedure, which rules include, of course, the rules of evidence. Yet as far back as 1931 the Court took the step (then Court Rule No 1, § 3) which was and remains requisite to constitutional validity of statutory rules of practice that are consistent with current court rules. *541 The adoptive rule (refer to Love and Darr, supra) read, in 1931:

“Sec. 3. Rules of practice heretofore set forth in any statute, not in conflict with any of these rules, shall be deemed to be in effect until superseded by rules adopted by the ¡Supreme Court.”

It reads now (GrCR 1963, 16):

“Rules of practice set forth in any statute, not in conflict with any of these rules, shall be deemed to be in effect until superseded by rules adopted by the Supreme Court.”

If it were not for protective and adoptive Rule 16, said section 7314 would be vulnerable to constitutional attack upon the same grounds as were brought up in Harker v. Bushouse, 254 Mich 187 at 192. The function of enacting and amending judicial rules of practice and procedure has been committed exclusively to this Court (Const 1908, art 7, §5; Const 1963, art 6, § 5); a function with which the legislature may not meddle or interfere save as the Court may acquiesce and adopt for retention at judicial will. This last the Court has done with respect to said section 731. Now, this and like cases having arisen with respect to said section 731, we of the Court are overdue for a hard look at that section. Preliminary to that look, we advert to what was said above — that the rules of practice and procedure include the rules of evidence:

“The judicial function constitutionally empowers the courts to make their own rules of procedure, including rules of evidence (subject only to specific constitutional limitations). Virtually all of the original rules of evidence were invented by the courts. *542 But as the courts usually failed to change rules which proved undesirable, the legislature from time to time made reformatory alterations by statute, — thus obscuring historically the natural function of the courts.

“In recent times, the just prerogative of the courts to make their own rules of procedure has been vindicted in professional opinion; and a healthy movement to relegate generally procedure to the courts has long been under way. That this prerogative, of the courts includes the power to formulate and to alter the rules of evidence ought not to be doubted.” (1 Wigmore on Evidence [3d ed], §7, 1962 pkt supp, p 51; adding these quotations to text.)

The italics above are those of the pocket supplement text writer.

Let us consider the literal wording of section 731 and its application to civil actions generally. Its proscription applies to “convicted” witnesses, as well as parties. It tells the courts of this State that they shall not, “in any civil action,” receive “evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles.”5 The section does not — even by implication — limit its prohibition against admissibility to traffic accident civil trials. The trial may be of a damage action for slander or libel, for assault, for negligent use of a firearm or pickax, for fraud and deceit, for actionable invasion of privacy, or the like. The triable issue may arise in an action to set aside a deed, or in a certified will contest. No matter the nature of the “civil action,” and no matter the nature of the motor vehicular criminal record of the party or witness on the stand, that party or witness cannot — if section 731 is left to stand — be impeached or tested for credibility upon such criminal record.

*543 So if section 731 is to remain effective in bold dictation to the judicial branch, the legislature will have effectively “repealed,” in substantial part, one of our oldest and most valuable rules of evidence, exemplified in CL 1948, § 617.63 (Stat Ann § 27.912), now CLS 1961, § 600.2158 (Stat Ann 1962 Rev § 27A.2158); Van Goosen v. Barlum, 214 Mich 595; Niedzinski v. Coryell, 215 Mich 498; Zimmerman v. Goldberg, 277 Mich 134; Socony Vacuum Oil Co. v. Marvin, 313 Mich 528; Cebulak v. Lewis, 320 Mich 710 (5 ALR2d 186); People v. Miller, 235 Mich 340; People v. Finks, 343 Mich 304 (51 ALR2d 934). The undersigned are not willing to bow further before such dictation and move accordingly to corrective action.6 The effect of such action, if taken, will of course be prospective in nature.

Summary

We observe now — the ease not having been tried —that this plaintiff may be unable to prove her allegation of negligent entrustment; that it may be, when the defendants plead to her amendment, that actual or inferential knowledge by the father of the boy’s record as claimed will be denied, making an issue on that score. It may be also that such record will fail to make a submissible case of unfitness or incompetence and owner-lender knowledge thereof. *544 As to this last see the suggestion — to avoid possible prejudice — which appears at the conclusion of our opinion of Tortora, supra.

On the other hand, and here we consider all fearsome forebodings, if plaintiff succeeds in proving by-due preponderance her amendatory allegation, this defendant parent should take stoically the bitters all like parents neglectfully brew for themselves. When father, without personal and constant attention to junior’s training for the public as well as personal hazard of motorcar driving, and without like attention to junior’s ensuing driving habits, lets the boy continue use of father’s car after 1 or more convictions have been adjudged to father’s knowledge, and bothers not from that time on to train with due discipline before the inevitable occurs, he and that boy — certainly not the victim of his and the boy’s negligence — should bear the “prejudicial” consequences. The common-law rule of negligent entrustment is both time tried and valuable, and we are not disposed to dilute its worth on assigned ground that the sad proof of junior’s record of court-conviction and parental knowledge thereof will “prejudice the entrustor and the entrustee before the jury.” Provided always the requisite proof is made (refer back to the Quila quotation at 373 Mich p 538), such “prejudice” is due solely to the negligence of those who decry it. That kind of prejudice manufactures no judicial error, reversible or otherwise. And we cannot resist adding that, from Tanis in 1933 and at least until enactment in 1949 of said section 731, the courts of Michigan seem in these negligent entrustment cases to have dispensed a fair measure of justice without having created the resultant and widespread prejudice counsel tell us they see ahead.

Arriving at the end of a necessarily lengthy opinion, we consider the foremost point defendants have *545 made in oral argument. They aver that any opinion of this Court, which even hints that a known history of “previous involvement in accidents” may make out a submissible case of negligent entrustment, will require in 1 suit a complete trial of each of the causes of such previous accidents; also that such consequential result will call down upon our trial courts an impossible burden.

The point is not very impressive. It has always been the law that, when a witness or party under cross-examination admits to conviction of a crime or crimes, he of right is permitted “to offer to the jury his explanation” (Leland v. Kauth, 47 Mich 508; Finner v. Porath, 221 Mich 28; Schudlich v. Yankee, 272 Mich 482; Socony-Vacuum Oil Co. v. Marvin, supra.) “If there are extenuating circumstances, no one else can so readily recall them.” (Wilbur v. Flood, 16 Mich 40 at 44 [93 Am Dec 203]). And the trial judge, utilizing his well understood vestments of discretion, will usually see that such collateral matters of inquiry are confined to the admission or admissions of conviction by the witness and his explanation thereof, thus to avoid trial of the numerous collateral issues, the distractions of the jury from the main issue or issues on trial, the drawing ont to unnecessary length of such trial, and all like frets and woes counsel upon successive oral arguments have presented. The explanation may of course be the subject of proper cross-examination, within the trial judge’s discretion.

Plaintiff’s motion for leave to amend her declaration, according to and as quoted in Perin aforesaid at 247, was denied below. As previously held, such denial constituted reversible error. The circuit court’s order should therefore be reversed and the record should be remanded to the Kent circuit for entry of order granting plaintiff’s said motion. *546 Plaintiff should have costs, but only such as stood taxable upon first decision here.

Defendants may, of course, move to strike or for more certain pleading, it having been made to appear that some uncertainty exists with respect to plaintiff’s pleading of previous “accidents” rather than previous “convictions.” By this we do not mean to say that a submissible ease of negligent entrustment of an automobile can be made only by proof of “convictions” for violation of motor traffic laws and owner-lender knowledge thereof. Such a case possibly could be made upon proof of known unfitness arising from other facts and events, such as entrustment to a known-to-be partially blind person, or a visibly intoxicated person, or a known insane person, or a person otherwise known-to-be wholly unfit to drive a car upon our public ways. We do mean that, in the context of this Perin Case, where the plaintiff seems to rely upon a record of conviction7 yet has not pleaded with specific clarity, the defendants may well be entitled to more certain pleading of that which plaintiff intends to prove under her proposed amendment. See the “necessary reasonably to inform” requirement of GrCR 1963, 111.1.

What has been written above, and what has been written for the majority signing in Tortora, supra, *547 supersedes and replaces our former decision (Perin v. Peuler, 369 Mich 242).

Kavanagh, C. J., and Souris, Smith, and Adams, JJ., concurred with Black, J.

The text finds full support also in McCalla v. Grosse, 42 Cal App 2d 546 (109 P2d 358).

Por elaboration of this rule, see annotation 168 ALR 1364, “Common-law liability based on entrusting automobile to incompetent, reckless, or unlicensed driver.”

Section 731 of vehicle code; CLS 1961, § 257.731 (Stat Ann 1960 Rev § 9.2431), quoted post. “Conviction,” as employed in section 731, means, of course, conviction by a court -charged with the duty of hearing and determining complaints for violation of the motor vehicle code or of local ordinances “pertaining to. the use of motor vehicles.”

“Sec. 731. No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action.” CLS 1961, § 257.731 (Stat Ann 1960 Rev §9.2431).

For a similar legislative mandate and its fate, see Bielecki v. Untied Trucking Service, 247 Mich 661.

The bench and bar are respectfully advised that, pursuing GCE 1963, 933, the Court has this day notified the secretary of the State Bar and the court administrator of intent of the Court to consider, with view toward adoption, an amendment of GCE 1963, 507, adding a new provision to be known as GCR 1963, 507.10, reading as follows:

“.10 During the trial of civil actions the rules of evidence, including the right of cross-examination for credibility, shall remain in full force and effect, section 731 of the Michigan vehicle code (CLS 1961, § 257.731 [Stat Ann 1960 Eev § 9.2431]) to the contrary notwithstanding. For the right of cross-examination to which this sub-rule refers, see Van Goosen v. Barlum, 214 Mich 595, 599; Zimmerman v. Goldberg, 277 Mich 134; Socony Vacuum Oil Co. v. Marvin, 313 Mich 528; Cebuldk v. Lewis, 320 Mich 710 (5 ALR2d 186); CLS 1961, § 600.2158 (Stat Ann 1962 Rev § 27 A.2158).”

The “record” upon which plaintiff seemingly detailed in her brief as follows: proposes to rely is

“conviction place ACCIDENT OR OFFENSE OR

DATE ARREST DATE DEPT. ACTION

1. Acc. Rep. Kent County 10/ 7/56 341023 1 vehicle, 2 injured

2. 10/ 9/56 Grand Rapids 10/ 7/56 speeding

3. 9/11/57 Grand Rapids 9/ 2/57 fail to keep right

4. Warning letter 10/ 3/57

5. 10/28/57 Zeeland. 10/23/57 improper passing

6. 1/15/58 Grand Rapids 1/13/58 speeding

7. Suspension 2/17/58 through 3/16/58 habitual negligence

8. 12/20/58 Hudsonville 12/14/58 improper turn

9. Ace. Rep. Kent County 10/ 4/59 287253 2 vehicles, 1 injured”