*1 388 Mich v DALE WHITEMAN Liability Statutes—Negligence—Car 1. Automobiles —Owner’s — Wash. negligent An operation owner of an automobile is liable for the use; therefore, he has the automobile when consented to its defendant who to a took automobile car wash is liable to plaintiff, employee wash, of the owner of the car who was injured employee when a fellow drove defendant’s automobile (MCLA though into 257.401). even defendant was without fault Indemnity Equity—Restitution. 2. — upon The basis for indemnification has been said to rest equitable principle right to restitution. Indemnity Contracts—Negligence—Torts. 3. — implied indemnity An contract of arises favor of a who part exposed without fault on his is com- and pelled pay damages negligence on account or tortious another; indemnity principle act is this based on everyone responsible is for his own and exists statute, independently of or not whether contractual rela- parties, negli- tions exist between the and whether or not the gent person special particular legal duty owed the other a negligent. to be Indemnity 4. Liability—Equity. —Automobiles—Car Wash — owner, being An automobile whose car while driven an em- [7] [8, [4] [5] [6] [3] [2] [1] 9] 61 Am 41 Am Jur 58 Am Workmen’s 58 Am 8 Am Jur 8 Am Jur 41 Am Jur 8 Am Jur Jur, Jur, Jur 2d, 2d, 2d, Indemnity 2d, Indemnity 2d, Workmen’s 2d, References Automobiles Automobiles and Pleadings Automobiles and Compensation Compensation §§ § § 20. 19 et Points Highway Highway 162. seq. Highway in Headnotes § 48.§ 358. Traffic 571§ Traffic 582. Traffic 598. § et seq. Whiteman Dale v wash, ployee another of the car of a car wash indemnity upon from the car wash owner entitled to equitable principle automobile owner was without should fall fault as best *2 adopt preventive thereby measures reduce the situated to injury. likelihood of Compensation Remedy Employer’s Lia- —Exclusive — 5. Workmen’s bility. remedy provision Compensation of the Workmen’s
The exclusive only against action Act is intended to be bar employer by employee or one which is the derivative from his 411.4). (MCLA claim Compensation Indemnity—Statutes. 6. Workmen’s — Compensation the An has a under Workmen’s Act paid by for workmen’s benefits to be indemnified by employee in an action him to his or "having legal employer against anyone liability” to the injured employee. Pleading 7. —Court Rules —Claims—Defenses. (GCR 1963, permits A court rule inconsistent claims or defenses 111.9[2j).
Dissenting Opinion Kavanagh, T. E. and T. G. JJ. Brennan Liability Statutes—Negligence. 8. Automobiles —Owner’s — impos- Liability of of a motor vehicle under the owner a statute ing liability upon negligence operating him for the of another derivative, permission negligence with the former’s being owner; operator imputed of the vehicle to the accord- liable, ingly, operator where the is not whether his freedom part from arises from a want of on his from the existence of such a relation himself and between person injured preclude part any liability as to on his for the injury, independent liability the statute does not create an on (MCLA257.401). part of the owner Liability 9. Automobiles —Owner’s —Derivative Action —Statutes Compensation. —Workmen’s vehicle, against purely An action the owner of a which was derivative, recovery no should lie where there could be driver, against who was a natural in the same compensa- employ plaintiff’s employer, as since the workmen’s 388 Mich provides operator tion a defense statute of the vehicle 413.15). (MCLA Appeal Appeals, from Court of 2, Division Quinn, J., Targonski, JJ., P. and Danhof and af- firming Genesee, remanding part Elza H. (No. 3, Papp, J. Submitted October 1972. 5 October 53,844.) 1972, Term Docket No. Decided December 21, Rehearing 1972. January denied 1973. App Mich affirmed.
Complaint by Robert A. Dale against Ernest Whiteman damages injuries for for sustained when struck by Third-party complaint automobile. Whiteman Carl Goldfarb for indemnifica- tion. Counterclaim Whiteman for reimbursement *3 paid plaintiff. Judgment
benefits plaintiff. for Judgment granting for Whiteman indemnification. Judgment noof cause of action for Goldfarb on his counterclaim. Defendant Whiteman and third- appealed defendant Goldfarb to the Court of Appeals. Affirmed in part and remanded. Goldfarb appeals. Affirmed.
Gault, Bowers, Davison & for defendant and third-party plaintiff Whiteman. Whinham, Jr.,
E. R. for third-party defendant Goldfarb.
Adams, J. Proceedings Facts,
I. The Question and The statement proceedings of and facts this case is set forth by Judge Quinn opinion his Appeals as follows: Dale v Whiteman 1967, 4,
"December Whiteman took his automobile to by a car wash Goldfarb and turned it owned over to an washing. Whiteman had attendant for used this car pulled through vehicle was wash before. The the auto- chain; matic line car was then wash driven to Fox, drying employee the tiff, an area Goldfarb. Plain- Goldfarb, drying was another auto- plaintiff mobile. Fox Whiteman’s car into causing drove injuries. severe complaint against "Plaintiff his filed Whiteman under (Stat statute,
the owner’s MCLA 257.401 Ann §9.2101). a third-party Rev Whiteman filed com- plaint against claiming Goldfarb indemnification and cross-complaint seeking Goldfarb filed a reimbursement paid plain- for benefits he had workmen’s tiff. (GCR 1963, for summary judgment "Plaintiff moved
117.2) liability. on the issue Whiteman’s Whiteman summary judgment moved for against indemnification summary judgment and for Goldfarb of no against plaintiff. cause for action Goldfarb moved for summary judgment of no action cause for as to White- man summary judgment for reimbursement plaintiff. paid benefits pleadings, depositions, of the "On the basis undis- puted parties, the briefs facts and the trial court granted plaintiff’s motion and Whiteman’s motion for All jury indemnification. other motions were denied. A $100,000 against Whiteman; damages awarded $100,000 granted against Whiteman indemnification Goldfarb, gave a verdict of no cause for action on cross-claim Goldfarb Whiteman. Judgments accordingly, entered and Whiteman and (1971). appeal.” App 36 Mich 534-535 *4 of Appeals
The Court
held
Goldfarb
independent
breached duty
he owed to White-
man
operate
through
to
the car
latter’s vehicle
negligence.
plaintiffs
wash without
It
reduced
judgment
by the amount of
against Whiteman
paid
workmen’s
benefits
In Husted v Consumers
"We avoid there cannot relationship any circumstances of noncontractual be- plaintiff’s employer, and the tween a sued defendant * * * obliga- recovery employer. . An over implied by equitable princi- tion to reimburse can be ples, provided always the relator is without fault.”
Though question carefully now before us was Husted, preserved passed upon and not largely upon decision of the trial court was based from Husted and the just-quoted statement decision of the Court of based Appeals was Corp, White v McLouth Steel App 18 Mich (1969), following Husted. remedy provision Michigan
The exclusive (Part I, 4; MCLA law 17.144), 411.4; MSA reads: this act
"Where the conditions of under exists, compensation bene- recovery to the *5 703 Dale v Whiteman
fits, provided, shall be the remedy as herein exclusive against employer.”1 taking into account argued
It is
that
one of the
of the workmen’s
law —to
purposes
liability
employer
an
to his
establish limits
language
of the
injuries
statute
—the
the exclusive
provides
remedy
Since
is
any
receiving
situation.
bene-
employee,
fits from
as an
Goldfarb main-
4
claim
him
tains
bars
other
than one for workmen’s
benefits.
plaintiff,
liability
though
Whiteman’s
even
he
Rumisek,
Frazier v
fault,
In
was without
is clear.
455,
(1960),
358 Mich
457
Justice Talbot
Smith,
Court,
writing for the
said:
liability
passed
"The
statute
owner
before us was
response
overwhelming public
to an
need. Common-law
circumscribed
liability,
by
as it was
the doctrine of
bailment,
superior,
like,
respondeat
agency, and the
was
cope
rising
injuries resulting
unable to
with the
tide of
mechanism,
from the use of the new
Principal among
the automobile.
legislative
answers were the owner
purpose,
liability laws. Their
as Mr. Justice Edwards
Palmer,
[1957],
350
held Moore v
Mich 363
was to
complement
legisla-
extend and
the common law. The
theory
simple
broadly applicable:
tive
An owner was
machine
was
to state and
negligent operation
for the
liable
him
he had
owned
when
consented to its
liability
imposed by
The
use.
doctrine of
is broader than that
* * *
respondeat superior
.”
Band,
In Ladner v Vander
321,
376 Mich
331-
(1965), involving
for a car not
owner
public
pri-
driven on a
rather
in a
highway, but
lot,
concurring sepa-
vate parking
Justice
Black,
rately, wrote:
repealed by
This act was
418.131, 17.237(131). MSA 388 Mich op legislature
"I
do not see how
could have titled
plainer
general
then
declaration of
written a
owner
qualified
liability;
only
which
the ex-
press exceptions
no one of
are set forth in said
section
present
body
concern. That
which is
told us
*6
any injury
liable for
that the owner 'shall be
occasioned
negligent operation
the
of such motor vehicle.’ It did
say
that such
should be limited
negli-
to
It did employ
gent operation 'upon
public highway.’
prior
adjective pronoun 'any,’
'injury
to
the
occasioned
negligent operation
vehicle,’
of such
by the
motor
which
courts,
pronoun
lawyers
lay
folk have ever looked
upon
synonymous
'every,’
as
with
and 'each one of all.’
Harrington
v Inter-State
See detailed discussion
Ass’n,
Business Men’s Accident
327, 330,
210 Mich at
[1920];
following approved
quotation ap-
also the
Co.,
Agricultural
in Gibson v
Life Ins.
of Amer-
pearing
ica,
II.
The basis for indemnification
has been said to
upon
rest
the equitable
principle
right
of a
to
grounds
restitution. Courts have found various
granting
simplest
the
situa-
indemnity.
Probably
tion is one in
parties
which the
have entered into
clearly
a written contract
has
party
which one
agreed to indemnify
the other. Next
are those
cases where
the contract
terms
are such that
Ryan
right implied.
indemnification
can be
See
Co,
Stevedoring
Steamship
Inc v Pan-Atlantic
Dale v Whiteman
op
232;
Ct
100 L
Corp, 350 US
124; 76 S
Ed 133
v
Corp
Aircraft
Hartman-
McDonnell
(1956);
Co,
Painting
(Mo,
Hanks-Walsh
SW2d 788
1959).
are those cases where the courts
Then there
agreement
parties
the
the
have written into
indemnify
upon
based
to
implied contract
oral,
party,
per-
one
written
undertaking
product
or furnish a
a certain service
form
Telephone
State
See Diamond
Co v
party.
other
1970).
Delaware,
(Del,
any fault on his is to and pelled pay damages negligence on account of the or another, having right of tortious act of the former a * * * (42 CJS, indemnity action the latter for .” 596.) 21, p § right principle indemnity "This is based on the responsible everyone is for his own * * * statute, whether independently . It and exists parties, or not relations exist between contractual the other negligent person or not the owed whether 698 Mich op legal duty special particular negligent.” to be 597). (42 CJS, 21, p case,
In to indemnity this might be bailment, predicated upon theory as was Lunderberg, supra. might done in Or it implied be part undertaking as a of Goldfarb to wash fashion, the car in a workmanlike as was done in Co, Telephone supra. Diamond State prefer We equitable such right upon principle base Whiteman was without fault or as the reasoned in Italia Supreme United States Court per Navigazione v Oregon Societa Azioni di Steve- Co, Inc, doring 324; 84 748; 376 US S Ct 11 L (1964): Ed 2d 732 should "[Liability fall adopt preventive best situated to measures thereby to reduce the likelihood of injury.” Compensation III. Act Workmen’s Exclusive Remedy Numerous courts have had occasion to consider whether the exclusive remedy provision of a work- men’s compensation statute is a bar to a claim of indemnity. great majority, interpreting The statutes, varying language of their have found that it is not. Lighting Westchester Co v Westchester
In Small County Corp, Estates 175; NY 15 NE2d (1938), majority opinion stated: provided by "It 11: section 'The of an employer prescribed preceding by the last section shall *8 place any liability be exclusive and in of other whatso- ever, employee, representatives, personal or next of to such his husband, kin, parents, dependents anyone damages, otherwise entitled to recover or otherwise on account of such at common law * * * injury or death .’ Whiteman Dale v by the defendant is that made these point "The whole action. present provisions bar has no warrant the text position "We think this the statute. Plaintiff does not quoted from that has been of death. Plain- Haviland’s damages 'on account for sue tiff recovery for breach of an asserts its own obligation by owed to it duty or alleged independent defendant.” Kittleson, Telegraph Co v District
In American 1950), (CA8, the Circuit Court of F2d 946 act, construing the Iowa Appeals, said: nothing language of the Iowa "We can discover indicating purpose to abolish com-
Compensation
mon law actions
Act
employer
except as between
in tort
language
contrary, the
Act
employee. On the
and
relied on
85.3
By
points
way.
the other
section
by appellees
required to
subject to the Act is
every employer
*
**
personal inju-
for
and all
'pay
ries sustained
course of the
arising
in the
employee
out of and
by an
cases,
in such
the em-
employment, and
liability
recovery
from other
for
ployer shall be relieved
damages
compensation for such
or other
quoted imposes
the em-
language
injury.’ The
provided by
Act to an
liability
ployer
extent
employment,
employee injured in the course
his
liability to
em-
employer from further
relieves the
ployee.
from
for the
third
language relieves an
say
To
that this
employ,
party,
one not in his
to a third
damaging such
employer’s
act
something that
read into the Act
party
is to
Moreover,
expressly
85.22
not there.
section
plainly is
in tort abolished
the common law actions
shows that
the Act were
employer and
exclusively those between
employee’s
provision
that when
legal
creating a
under circumstances
injury is caused
employer,
than the
against some
other
against such
an action
employee may maintain
the
third
pre-
of the Act
damages. This section
in tort
law actions
employee the common
serves to the
*9
388
Mich 698
Opinion
Court
arising
out of his relation with
his
and is
express
legislature
recognition by
the Act
operate beyond
does not
that field.”
The reasoning
of the Federal Court was
subse-
the Iowa
quently
adopted by
Supreme Court
City
Pork, Inc,
Blackford v Sioux
Dressed
254 Iowa
(1962).
845;
Under Act, Compensation Workmen’s in an action by the employee or the employer anyone "having a legal liability” to an Dale Whiteman v Brennan, Dissenting T. E. J. right a statutory has to be
employee, Goldfarb benefits indemnified for By injured employee. its hold- by him to paid preserved this Appeals right ing, out cancelling Goldfarb’s of re- and Whiteman’s judgment covery from Whiteman the amount of against Goldfarb *10 paid by Goldfarb. by third-party
A issue raised defend- secondary prevented that was goes the claim ant regarding plaintiff of fact from issue litigating 1963, GCR contributory negligence. possible Dale’s 111.9(2) or inconsistent claims defenses. permits never raised at the trial court question The was pass not it at this therefore do on time. level. We appel- The is affirmed. Costs to Appeals Court of lee. J., Black, Swainson, Kavanagh, and
T. C. M. Adams, Williams, JJ., with J. and concurred Brennan, (dissenting). pre- The T. E. J. case impression jurisdic- in this one of sented is first tion, a split which there is and it is one authority elsewhere. view, the rule that stated in
In better is my 2d, Automobiles, 152: p Am Jur liability "The owner of a motor vehicle under the negligence imposing liability upon him for the statute permission the is operating of derivative, it with former’s another of the negligence operator the of the vehicle It held that no being imputed to owner. has been the owner, liability part independent of the on the of the statute, driver, so the is created the operator, liability if is the act of that no created Accordingly, imposed upon the there none owner. is liable, operator his freedom where the whether negligence on his liability from arises from a want of 388 Mich Brennan, Dissenting by T. E. J. part from the existence such a relation between person preclude himself and as part on for the injury, the statute does not create an independent part on of the owner.” Michigan
Since our 413.15; 17.189, statute MCLA MSA provides defense to the operator vehicle which in- Dale, jured being defense Fox, the operator, was a natural in the employ plaintiff’s same as the employer, there recovery by could be no Dale against Fox. That being case, the action against Whiteman, vehicle, being derivative, owner purely should not lie.
I would the judgments reverse of the courts judgment below enter a of no cause for action the plaintiff the third-party plaintiff. *11 J.,
T. G. with T. concurred E. Bren- Kavanagh, J. nan,