Cowan v. Strecker, Docket No. 15800

Docket No. 15800 | Mich. Ct. App. | Apr 29, 1974

Lead Opinion

R. B. Burns, P. J.

Plaintiff filed suit against the owner and the driver of a motor vehicle. A default judgment was entered against the driver. The trial court entered a judgment of no cause of action in favor of the owner as the borrower of the vehicle had disobeyed instructions. We reverse.

On the day that defendant Grace Strecker’s car was being driven by defendant William Shannon that car collided with a car being driven by plaintiff John Cowan. Cowan was seriously injured. Grace Strecker had loaned her car to Virginia Shannon, William’s mother, with explicit instructions that no one drive that car other than Mrs. Shannon. Contrary to those admittedly clear instructions, Mrs. Shannon allowed her son to drive the car. At the time of the accident Mrs. Shannon was a passenger in the car. John Cowan brought suit against William Shannon and Grace Strecker. The action against Mrs. Strecker was based on the owner liability provisions of the Michigan civil liability act, MCLA 257.401; MSA 9.2101. Defendant William Shannon failed to defend, and a default judgment was properly entered against him. After a bench trial a judgment of no cause of action was entered in favor of Mrs. Strecker. The judge ruled that, because William Shannon’s operation of Mrs. Strecker’s car was contrary to the owner’s explicit instructions to Mrs. Shannon, the car was not being operated by William Shannon with either the express or implied consent of Mrs. Strecker and that, therefore, no liability was imposed upon her by the civil liability act. Plaintiff challenges the judgment for defendant Strecker as erroneous as a matter of law.

In order to resolve this appeal we must choose between two recent decisions: Roberts v Posey, 386 Mich. 656" court="Mich." date_filed="1972-02-25" href="https://app.midpage.ai/document/roberts-v-posey-2121678?utm_source=webapp" opinion_id="2121678">386 Mich 656; 194 NW2d 310 (1972), and Ensign v Crater, 41 Mich. App. 477" court="Mich. Ct. App." date_filed="1972-06-26" href="https://app.midpage.ai/document/ensign-v-crater-1618684?utm_source=webapp" opinion_id="1618684">41 Mich App 477; 200 NW2d 341 (1972), appeal dismissed with prejudice by stipulation, 389 Mich 791 (1973). In Roberts, 386 Mich. 656" court="Mich." date_filed="1972-02-25" href="https://app.midpage.ai/document/roberts-v-posey-2121678?utm_source=webapp" opinion_id="2121678">386 Mich at 664; 194 NW2d at 314, the Michigan Supreme Court overruled Merritt v Huron Motor Sales, Inc, 282 Mich. 322" court="Mich." date_filed="1937-12-14" href="https://app.midpage.ai/document/merritt-v-huron-motor-sales-inc-3497994?utm_source=webapp" opinion_id="3497994">282 Mich 322; 276 NW 464 (1937), and held that "[t]he presumption that a motor vehicle, taken with the permission of its owner, is thereafter being driven with his express or implied consent or knowledge is not overcome by evidence that the driver has violated the terms of the original permission”. In Roberts the individual who borrowed another’s car was involved in an accident while operating the car past the hour stipulated for its return. In Ensign a father loaned a car to his daughter with explicit instructions that no one else drive it. The daughter allowed her boyfriend to drive the car, and, while he was doing so negligently, the car was involved in a serious accident. A panel of this Court found Ensign to be "factually distinguishable” from Roberts and refused to apply the principle of law enunciated in the latter case. Obviously, plaintiff bases his appeal on Roberts v Posey, supra, while defendant Strecker bases her response on Ensign v Crater, supra.

We concede that Ensign and the instant case are "factually distinguishable” from Roberts. Different instructions were disregarded by the borrower in each case. However, in light of the rationale underlying the decision in Roberts, we cannot agree that that factual difference is significant. In Roberts, supra, 386 Mich. 656" court="Mich." date_filed="1972-02-25" href="https://app.midpage.ai/document/roberts-v-posey-2121678?utm_source=webapp" opinion_id="2121678">386 Mich at 662; 194 NW2d at 312, our Supreme Court interpreted the civil liability act to place upon the owner of an automobile liability for any injury or damage caused by the improper use of his car, even when operated by another in blatant disregard of explicit instructions, because, as the person with ultimate control of the vehicle, the owner, by entrusting his car to another, began the chain of events which resulted in injury or damage. The specifics of any limitations imposed by the owner are irrelevant to the statute’s effectuation of its purpose. Whatever the limitations, once the owner has turned his keys over to another, he is powerless to enforce those limitations. Several thousand pounds of steel are being moved upon the public highway because the owner consented thereto. Even if the individual who borrowed the car has deviated from his instructions, the car is being operated on the highway because the owner consented thereto. If the car is involved in an accident, the owner is liable because of that consent.

Reversed and remanded for entry of judgment against defendant Strecker. Costs to plaintiff.

Van Valkenburg, J., concurred.

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Concurrence Opinion

Bronson, J.,

(concurring). I write separately because I concurred in Ensign v Crater, 41 Mich. App. 477" court="Mich. Ct. App." date_filed="1972-06-26" href="https://app.midpage.ai/document/ensign-v-crater-1618684?utm_source=webapp" opinion_id="1618684">41 Mich App 477; 200 NW2d 341 (1972), appeal dismissed with prejudice by stipulation, 389 Mich 791 (1973). Although the situation in Ensign, supra, is factually distinguishable¹ from that in Roberts v Posey, 386 Mich 656; 194 NW2d 310 (1972), a closer reading of the policy expressed by the Supreme Court in Roberts leads me to conclude that a different result would be required if Ensign were presently before us for decision.

Accordingly, based on the strong policies expressed in Roberts, I concur with my colleagues in the present decision and alter my position in Ensign to the extent it is inconsistent with the policies in Roberts.

1 Roberts, supra, involved a permittee-driver who had exceeded the scope of the consent. Ensign involved a driver never given consent but operating with the permission of the first permittee who was in possession of the vehicle with the consent of the owner.