Editors, Law Review

English

University of Chicago Law School: Chicago Unbound

THE UNIVERSITY OF CHICAGO LAW REVIEWemployee relationship and contravening its rules in indulging in the joint activity ofriding, the parties enter into a new relationship, which may be termed a driver-guestrelationship. The driving of the car has become just as much the affair of the driver-guest relationship as of the driver-employer relationship. Therefore, the guest, beinginjured in the course of the activity of his relationship as a result of the negligence ofthe other party, has no grounds for setting the cost of the injury at the door of a thirdperson whose business rules he is helping break merely because the activity was also inthe course of that third person's business. Practically, the distinction suggested isamply justified. Express orders from the employer to the driver will usually be suffi-cient to eliminate known trespassers. But the fact that an invitee relationship existsbetween the driver and his passenger demonstrates that such orders have been futile.The employer then has no control except the threat of discharge, and, since such un-authorized invitations are extremely common, employers are loath to make this threat.The validity of the theory will be tested if a case arises in which an unauthorized inviteeis injured through the negligence of a servant other than the one who extended theinvitation. The employer should be held responsible.This argument, however, rests upon a knowledge in the passenger that the rules ofthe employer-driver relationship are being broken. In the usual case the driver will nothave authority to invite guests, and the courts have created a presumption to thateffect, at least for trucks. O'Leary'v. Fash, 245 Mass. 123, 14o N.E. 282 (1923); Gruberv. Cater Transfer Co., 96 Wash. 544, 165 Pac. 491 (1917). But where the invitation iswithin the actual authority of the driver, the rules are not being broken, and whereit is within the apparent authority, the passenger will reasonably suppose that theyare not. In either event the trip has ceased to be a joint transgression upon the rightsof the employer, the passenger has become a licensee, and the employer should be heldupon the familiar principle of respondeat superior. Barry v. N.Y.C.& H.R.R.R.Co., 92N.Y. 289 (1883). In the principal case actual authority to carry passengers could bededuced from the acquiescence of the employer in previous invitations in spite of theexpress rule to the contrary; apparent authority, from the passenger's point of view,arose out of his observation of such previous acts. Under the theory here expressed thecourt was correct in insisting upon the immunity of the employer unless there wasactual or apparent authority for the invitation.Agency-Respondeat Superior-Liability of Employer to Wife of Servant forInjuries Caused by Servant's Negligence-[Minnesota].-The defendant, a used cardealer, invited the plaintiff and her husband to test a car offered for sale by him. Theplaintiff was injured as a result of her husband's negligent driving. A Minnesotastatute provides that any person operating a motor vehicle with the consent of theowner is deemed an agent of the owner in case of accident. 3 Mason's Minn. Stat.§ 2720-104 (supp. 1934). The wife sued the owner as the principal of her negligenthusband. Held, the disability of the plaintiff to sue her husband did not bar an actionagainst the principal of her husband. Miller v. Tyrholm & Co., 265 N.W. 324 (Minn.1936).The purpose of the statute was to afford protection against financially irresponsibledrivers. Since passengers are often acquainted with the skill and resources of the driverand can protect themselves by declining to ride, the statute might have been construedas protecting only pedestrians, who cannot effectively protect themselves. Three con-RECENT CASESsiderations make this interpretation untenable: (i) the difficulty of determining theextent of the knowledge of a given passenger; (2) previous Minnesota decisions extend-ing the protection of the family automobile doctrine to the automobile guest (Nicol v.Geitler, 188 Minn. 69, 247 N.W. 8 (1933)); (3) the use of agency language in the statute.By construing the statute as it did the court raised the problem of whether, underthe doctrine of respondeat superior, a master may be held liable even though the servantis immune. With the exception of cases involving a marital relationship between theservant and his victim, no case has been found where the master has been held liabledespite the servant's immunity. The cases in which the master has been held liablealthough his servant had the benefit of a covenant not to sue are not in point. But seeSchubert v. Schubert Wagon Co., 249 N.Y. 253, 256, 164 N.E. 42, 43 (1928). These casesmerely hold that a release of the agent from admitted liability does not immunize themaster. The requirement that the agent must be liable before respondeat superior willoperate generally has a practical justification. When the servant's negligence rendersthe master liable to a stranger, the servant will be liable to the master. Consequently,the imposition of liability upon the master when the agent is not liable would collidewith whatever policy produced the agent's immunity. Although aware of this incon-sistency the majority of courts, following the Schubert case, have imposed liability uponthe master when faced with the problem of the instant case. Poulin v. Graham, 102 Vt.307, 149 Ad. 698 (1929); Chase v. New Hampshire Material Corp., iii Conn. 277, 150At. 107 (1930). Contra, Emerson v. Western Seed Co., 116 Neb. 18o, 216 N.W. 297(1927); Sacknoff v. Sacknoff, 131 Me. 280, 16I Ad. 669 (1932). These courts argue thatthe immunity of the agent, being merely "procedural," does not extend to the masterwho must therefore answer for the "wrong" of the agent. See Schubert v. SchubertWagon Co., 249 N.Y. 253, 256, 164 N.E. 42, 43 (1928). Cf. Kingman v. Frank, 33 Hun(N.Y.) 471 (1884) (creditor may garnish debt owed by wife to husband for serviceseven though husband's claim is not enforceable against the wife); Mertz v. Mertz,3 N.E.'(2d) 597 (N.Y. 1936) (wife negligently injured by her husband in state A whichallows tort actions between husband and wife, denied recovery against husband instate B which does not permit such actions). But the view that there is a proceduraldisability arising out of the marital relationship is inconsistent with decisions that amarried woman may sue her husband for invasion of her separate property rights(Wood v. Wood, 83 N.Y. 575 (i88i); 3 Vernier, American Family Laws 271 (1935)); aswell as with decisions that after divorce a wife has no action for injuries committedduring coverture. Abbott v. Abbott, 67 Me. 304 (1877); Stron v. Strom, 98 Minn. 427,107 N.W. 1047 (igo6). This view is also inconsistent with the vanishing notion thathusband and wife are a single entity. See Madden, Persons and Domestic Relations145 (1931). If husband and wife are one legal person, it is arguable that a husband whonegligently injures his wife has no more committed a wrong than if he had negligentlyinjured himself. Liability may also be imposed by resort to the identity notion. If theemployee's acts are deemed to be those of the employer, the latter would be liablewithout regard to any personal immunity in the former. See Schubert v. Schubert WagonCo., 249 N.Y. 253, 257, 164 N.E. 42, 43 (1928). But whatever the theoretical justifica-tion, since the principal who responds for the agent's act has an action against him,the plaintiff is permitted to do indirectly what she cannot do directly-impose ulti-mate liability upon the agent-husband. See Emerson v. Western Seed Co., 1i6 Neb. i8o,184, 216 N.W. 297, 298 (1927). This is inconsistent with the notion that permittingTHE UNIVERSITY OF CHICAGO LAW REVIEWtort actions between husband and wife will disturb domestic relations. But see McCur-dy, Torts between Persons in Domestic Relation, 43 Harv. L. Rev. 1030, 1033 (1930).Courts convinced that the antiquated rule of immunity between husband and wife isno longer justifiable may indirectly limit its operation by imposing liability upon themaster.Bankruptcy-Quo Warranto-Possession of State Court Receiver Obtained beforethe Four Month Period-[Federal].-The Brictson Manufacturing Company, aSouth Dakota corporation, carried on the major part of its business in Nebraska. In1921 a group of minority stockholders brought a dissolution proceeding in a federaldistrict court in Nebraska, alleging that the corporation was formed to defraud itsstockholders. The court thereupon appointed a receiver to take possession of all theassets of the corporation. Although the circuit court of appeals reversed the decisionof the district court and subsequently issued two successive writs of mandamus, thedistrict court failed to order the receiver to return the property in his possession to thecorporation. Brictson v. Close, 280 Fed. 297 (C.C.A. 8th 1921); Brictson v. Woodrouglh,284 Fed. 484 (C.C.A. 8th 1922); id., 289 Fed. 1020 (C.C.A. 8th 1923). In 1923 theNebraska attorney-general instituted quo warranto proceedings to oust the BrictsonCompany from doing business as a foreign corporation in Nebraska. In 1926 theNebraska supreme court appointed trustees to take possession of the corporation'sNebraska assets, distribute them to the corporation's creditors, and, if the corporationwere still solvent, return the balance "to those thereto entitled." State ex rel. Att'y-Gen'l v. Brictson, 114 Neb. 341, 207 N.W. 664 (1926). The state court trustees' effortsto obtain this property from the federal receiver culminated in his intervention in thehearing on the receiver's report, upon which the circuit court revised its mandate andordered the receiver to turn over the assets in his possession to the state court trusteesrather than to the corporation. Brictson Mfg. Co. v. Close, 25 F. (2d) 794 (C.C.A. 8th1928). The assets were actually transferred in September, 1929, after the corporation'screditors had filed a petition in bankruptcy against the corporation in August.The trustee in bankruptcy, Engebretson, made several abortive attempts to obtainthe property from the state court trustees before 1933, at which time he unsuccessfullyresorted to a summary proceeding in the bankruptcy court. Marcell v. Engebretson,74 F. (2d) 93 (C.C.A. 1934); cert. denied, 296 U.S. 579 (1934). The present action is aplenary suit in equity in which Engebretson as plaintiff claimed: (i) that the previousdecision determined only that the state court trustees had more than a colorable claim;(2) that the defendants do not hold the property adversely to the corporation; (3) thattherefore, as trustee in bankruptcy, he is entitled to this property as property in theconstructive possession of the bankrupt. Held, the retention of this property by thefederal receiver until after the petition in bankruptcy had been filed was wrongful;therefore, these assets were in the constructive possession of the state court trusteesfrom the time of their appointment. This possession being adverse to the corporationand having commenced more than four months before the filing of the petition, thestate court acquired jurisdiction to administer these assets free from interference byother courts. Engebretson v. Marcell, 84 F. (2d) 315 (C.C.A. 8th 1936), cert. denied,Sup. Ct. Serv. 8og, no. 210 (Oct. 12, 1936).Liens obtained by creditors more than four months before the filing of a petition inbankruptcy are not voidable under section 67f of the Bankruptcy Act. 30 Stat. 544,

Recent Cases: Agency. Respondeat Superior. Liability of Employer to Wife of Servant for Injuries Caused by Servant\u27s Negligence

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Recent Cases: Agency. Respondeat Superior. Liability of Employer to Wife of Servant for Injuries Caused by Servant\u27s Negligence

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