Jones v. Slaughter
220 N.W.2d 63
Mich. Ct. App.
1974
Check Treatment
Danhof, P. J.

This suit arises out of an automobile-motorcycle accident that occurred on July 4, 1971. The motorcycle was driven by plaintiff, James Jones. The uninsured automobile was driven by defendant Ronald Slaughter and owned by defendant Langston Slaughter. Subsequent to said accident, a lawsuit was instituted in the Common Pleas Court for the City of Detroit on behalf of Langston Slaughter, Ronald Slaughter, and oth *122 ers against James Jones. Prior to trial of the common pleas action, James Jones made a full and final settlement with Langston Slaughter for the latter’s claimed property damage. The common pleas action went to trial with Ronald Slaughter as the remaining party plaintiff. The common pleas jury, in response to special questions submitted, found James Jones guilty of negligence and Ronald Slaughter guilty of contributory negligence. Accordingly, a judgment of no cause of action was entered on the jury’s verdict.

The present lawsuit was filed subsequent to the trial of the common pleas action. The complaint "alleged negligence on the part of Ronald Slaughter and Langston Slaughter, and contains an allegation of negligent entrustment on the part of Langston Slaughter. The Secretary of State intervened as a party defendant pursuant to the Motor Vehicle Accident Claims Act, MCLA 257.1101 et seq.; MSA 9.2801 et seq., and filed a motion for accelerated judgment, GCR 1963, 116.1(5), alleging the prior common pleas judgment as a bar to the present action. The trial court granted the motion and dismissed this action as against both defendants.

Upon oral argument of this cause, plaintiffs’ counsel stated that plaintiffs do not appeal the dismissal of their claims against defendant Ronald Slaughter. This appeal, therefore, involves only the propriety of the trial court’s dismissal as against defendant Langston Slaughter.

Plaintiffs contend that the defense of collateral estoppel is not available to Langston Slaughter because he was not a party to the common pleas action. They cite Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). It should be noted that Howell involved an at *123 tempt by the plaintiff, who was not a party to the previous action, to use collateral estoppel offensively, thereby foreclosing the issue of defendant’s negligence and leaving only the question of plaintiff’s damages for the jury’s consideration. The instant action involves a defensive use of the collateral estoppel doctrine.

Assuming, however, that Howell is controlling, plaintiffs’ claim that defendant Langston Slaughter was not a party to the previous action is not supported by the facts. Langston Slaughter had been a party to the previous suit until, prior to trial, James Jones made full and final settlement with him in exchange for a binding release. This settlement was prompted by the "Hoxie” doctrine which provides that the contributory negligence of the driver is not imputed to the owner, thus allowing the owner to recover his property damage upon proof of a defendant’s negligence. Universal Underwriters Insurance Co v Hoxie, 375 Mich 102; 133 NW2d 167 (1965). But for the settlement, generally encouraged by the courts, Langston Slaughter would have remained a party to the prior suit until judgment. And, had Langston Slaughter remained in the common pleas action until judgment, the jury’s verdict would have required the same result that the settlement imposed. We hold, therefore, that Langston Slaughter was sufficiently a party to the common pleas action to claim conclusive defensive effect to the issue' of James Jones’ negligence which was actually litigated and decided therein.

James Jones’ negligence having been established by the prior action, his cause of action against Langston Slaughter for Ronald Slaughter’s negligence must fail. Moreover, in order to prevail on a theory of negligent entrustment, James Jones *124 must prove that the entrustment was causally connected with the injury of which he complains. Perin v Peuler (On Rehearing), 373 Mich 531; 130 NW2d 4 (1964). Assuming as we must that the entrustment was negligent, nevertheless the causal chain between it and plaintiffs’ injury has been broken by the prior jury’s determination that plaintiff was himself negligent. Finally, recovery by Katie Jones for loss of consortium being contingent upon recovery by James Jones for his injuries when their actions are consolidated, her action must likewise fail. Dewey v Perkins, 295 Mich 611; 295 NW 333 (1940). Morrison v Grass, 314 Mich 87; 22 NW2d 82 (1946).

Affirmed, costs to the intervening defendant.

All concurred.