Healy, Richard L.

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North Dakota Law Review Volume 27 Number 2 Article 3 1951 Automobiles - Imputation of Negligence under Safety Responsibility Statutes - Agency and Bailment Theories Richard L. Healy Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Healy, Richard L. (1951) "Automobiles - Imputation of Negligence under Safety Responsibility Statutes - Agency and Bailment Theories," North Dakota Law Review: Vol. 27 : No. 2 , Article 3. Available at: https://commons.und.edu/ndlr/vol27/iss2/3 This Note is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NORTH DAKOTA LAW REVIEWNOTESAUTOMOBILES- IMPUTATION OF NEGLIGENCE UNDERSAFETY RESPONSIBILITY STATUTES-AGENCY AND BAIL-MENT THEORIES. The avowed purpose of safety responsibility stat-utes is to impose financial liability for injuries to third persons uponthe owner of the automobile causing the injury. The theory uponwhich liability is attached is that the negligence of the driver is imput-ed to the owner. Imputation of negligence in suits by the third partyagainst the owner serves the purpose of the statute and no problemarises, but where the owner sues the third party for damages to car orperson, the difficult question arises as to whether the defendant will beallowed the defense of contributary negligence-arguing that there isan imputation of negligence from the driver to owner.' The solution re-solves on the narrow issue of whether the statute creates a bailment oran agency between driver and owner-the general rule being thatthere is no imputation in bailment cases while there is an imputationin agency cases.2The safety responsibility statutes provide a remedy for an injuredthird person where at common law there was none.' Until 1897 con-tributory negligence of a bailee was imputed to the bailor when thelatter sued for damages to the bailed article on the common law con-cept of there being an inseparable identity of property interests be-tween the bailor and bailee.' The modern concept is one of separateproperty interests so that there is no imputation of negligence in theabsence of a relationship between the bailor and bailee which wouldmake the bailor liable to the third person as defendant.' The relation-ship referred to is usually either that of a master-servant' or one ofjoint enterprise'.Adopting the modern view of property interests between bailor andbailee the court held in Christensen v. Hennepin Transp. Co.' that theChristensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406(1943).2 Prosser, Torts 417 (1941). Restatement, Torts § 485 (1934).3 Without statutory declaration, a bailor is not liable to third persons forharms caused by the negligent use of the bailment. Gardner v. Farnum,230 Mass. 193, 119 N.W. 666 (1918); Slater v. Advance Thresher Co.,97 Minn. 305, 107 N.W. 133 (1906).Thorogood v. Bryan, 8 C.B. 115, 137 Engl. Rep. 452 (1849).New York L.E. & W. Ry. v. New Jersey Electric Ry., 60 N.J.L. 338, 38Atl. 828 (1897); accord, Rodgers v. Saxton, 305 Pa. 479, 158 At. 166(1931); Nash v. Lang, 268 Mass. 407, 167 N.E. 762 (1929). Contra:Munster v. Hexter, 295 S.W. 245 (Tex. Civ. App. 1927); Illinois Cent.Ry. v. Sims, 77 Miss. 325, 27 So. 527 (1900). Restatement, Torts § 489(1934).Prosser, Torts 471 (1941). See note, 8 Wash. & Lee L. Rev. 100 (afterpassage of Married Women's Act separating identity of wife and hus-band, negligence was often imputed on the theory of one spouse beingagent of the other).Prosser, Torts 418 (1941).215 Minn. 394, 10 N.W.2d 406 (1943).NOTESMinnesota statute' created a limited agency which did not imputethe negligence of the bailee to the bailor in a suit by the latteragainst the third party for injuries to his automobile. The husband,co-owner of the car with his wife and guilty of contributory negli-gence in the collision, was alleged by his plaintiff-wife to be in con-trol and custody of the car at all times, and driving the car with herconsent-she being his invitee." The defense was predicated on twotheories: that as a matter of law the relationship between the baileeand bailor gave the latter a right of control upon which the negligencewas imputed, and that the safety responsibility statute imputed thenegligence so as to bar plaintiff's action. The first line of defensefailing,0 defendant argued that the statute created an agency betweenbailor and bailee for all purposes. Rejecting the defendant's argument,the court quoted with approval from a Rhode Island decision that,"... the operator is not thereby made the agent of the owner withall incidents of the law of principal and agent. The statute is intendedto be operative and to impose liability when there is an accident andthere is no existing agency."The precise issue raised is whether the agency created by statute islimited to suits by the third person so that no negligence can be im-puted in a suit by the bailor. This issue is determined upon an analy-sis of the statutes which fall into three general classifications:(1) No question arises in the interpretation of the amended Califor-nia statute which in addition to the usual provision that the ownerof a motor vehicle should be liable and responsible for the negligenceof another person driving the car in the business, or with the permis-sion of the owner, provides that " . . . the negligence of such person"'Whenever any motor vehicle . . shall be operated upon any publicstreet or highway of -this state, by any person other than the owner, withthe consent of the owner, express or implied, the operator thereof shallin case of accident, be deemed the agent of the owner of such motor ve-hicle in the operation thereof." Minn. Stat. Ann. § 170.54 (1946).' If the owner is the guest of the operator of the car the owner can not beimputed with the negligence of the operator unless they were engaged ina joint enterprise or where the operator is the owner's servant or agent.Sanjean v. Hyman, 302 Mass. 224, 19 N.W.2d 3 (1939).' The court held that in the absence of a joint enterprise, the marriage re-lationship between bailor and bailee does not at a matter of law createan agency between them. Darian v. McGrath, 215 Minn. 389, 10 N.W.2d 403 (1943); Nash v. Lang, 268 Mass. 407, 167 N.E. 762 (1929).Jacobsen v! Dailey, 228 Minn. 201, 36 N.W.2d 711 (1949); see note,11 A.L.R.2d 1429 (1950). Neither the marriage relationship nor thefact that the car was being driven with the permission of the wife-ownerimputed negligence to the bailor. New York Telephone Co. v. Schofield,31 N.Y.S.2d 393 (1941). Co-ownership does not impute negligence whenboth husband and wife are in the car. Jenks v. Veeder Contracting Co.,177 Misc. 240, 30 N.Y.S.2d 278 (1941). Owner's mere presence in carwill not preclude his recovery but is evidence of agency relationship orjoint enterprise. Johnson v. Newman, 168 Ark. 836, 271 S.W. 705 (1925);Grover v. Sharp & Fellows Contracting Co., 66 Cal. App. 2d 736, 153 P.2d 83 (1944); cf. Restatement, Torts § 491, comment h (1934).12 Kernan v. Webb, 50 R.I. 394, 148 Atd. 186 (1929).NORTH DAKOTA LAW REVIEWshall be imputed to the owner for all purposes of civil damages.""(2) Statutes in the second classification are not so clear-cut and aresubject to divergent interpretations. Minnesota, Rhode Island, and theDistrict of Columbia have statutes providing that the operator shallbe deemed the "agent" of the bailor-owner."' Illustrative of the inter-pretive split are Minnesota" and Rhode Island"9 holdings of no imputa-tion of negligence under the statute and a contrary decision reachedin a District of Columbia court."7 (3) In the third classification arestatutes which merely provide that "the owner of the motor vehicleshall be liable for the negligence of the driver."'" Demonstrating thesplit in construing this class of statute are New York" and Michigan"0decisions holding no imputation, with Iowa ' on the other side of thefence.Adopting legislative intent as the proper criterion for statutory in-terpretation, the majority view that there is no imputation of negli-gence in the latter two types of statute" as found in Minnesota andNew York becomes colored with logic and purpose. Without statu-tory declaration, a bailor is not liable to third persons for injuriescaused by the negligent use of the bailed article." These latter sta-tutes abrogate the common law rule that the negligence of a bailee13 Cal. Veh. Code § 402 (1943). See, holding the amended statute was pro-perly interpreted to include actions by the owner against the third per-son so as to impute to the owner the negligence of the bailee, Milgate v.Wrath, 19 Cal. 2d 297, 121 P.2d 10 (1942); Fox v. Schuster, 50 Cal.App. 2d 362, 123 P.2d 56 (1942). See Idaho Code Ann. § 49,1004(1948) for a similar unambiguous statute.14 See note 9 supra for Minn. Statute; See R.I. Gen. Laws c. 98 § 10 (1938)as amended R.I. Laws 1940, p. 476; D.C. Code § 40-403 (1940).1z Christensen v. Hennepin Trans. Co., 215 Minn. 394, 10 N.W.2d. 406(1943).Id Kernan v. Webb., 50 R.I. 394, 148 Atl. 186 (1929).17 National Trucking F2 Storage Co. v. Driscoll, 64 A.2d 304 (Munic. Ct.App. D.C. 1949).New York Veh. & Traf. Law Art. 5, § 59 (1939). Iowa Code Ann.§ 321.493 (1949).Gochee v. Wagner, 232 App. Div. 401, 250 N.Y. Supp. 102 (4th Dep't1931), holding no imputation of negligence to bailor. See 17 Corn. L.Q.158 (1931) for excellent discussion of case. Mills v. Gabriel, 259 App.Div. 60, 18 N.Y.S.2d 78 (1940) holding that each owner could recoveragainst the other for damages to the car of the other, caused by the negli-gence of the respective drivers on the theory that there was no imputa,tion of negligence. Contra: Renza v. Brennan, 165 Misc. 96, 300 N.Y.Supp. 221 (City Ct. 1937); Darrohn v. Russell, 154 Misc. 753, 277 N.Y.Supp. 783 (City Ct. 1935).20 Major v. Southwestern Motor Sales, 314 Mich. 122, 22 N.W.2d 96 (1946).(no imputation of contributary negligence of husbanddriver to the injuredwife, a passenger); Ansaldi v. City of Detroit, 314 Mich. 73, 22 N.W.2d77 (1946) (charge of imputation of driver's negligence to passenger-wifeis reversible error).Secured Finance Co. v. Chicago, R.I. &Pac. Ry., 207 Iowa 1105, 224N.W. 88 (1929) (negligence imputed to owner).Note, 82 U. of Pa. L. Rev. 213, 214 (1934).23 Restatement, Torts § 485, comments a, b (1934).NOTESis not imputable to his bailor for purposes of holding the bailor liable.-'Yet they are silent on the precise issue. It follows that in the con-struction of these remedial statutes there occurs a clash between tworules of interpretation: (1) that all statutes in derogation of the com-mon law are to be strictly construed; and (2) that a remedial statuteis to be given a liberal interpretation. The duty to interpret a remedialstatute liberally extends only to the point at which the evil soughtto be avoided is overcome, ' and with this as a yardsick it is evidentthat the statute is to be liberally construed only in so far as it im-poses financial liability for the driver's negligence on the bailorconsenting to such operation of his car.' Recognizing this truth, JudgeSears, in the majority opinion of the Gochee case wrote with emphasisthat the statute ". . . is not to be wrenched out of its intended pur-pose and its language distorted in order to conform it to the conven-tional pattern of common law agency.' Investigation )f the "purpose"reveals a legislative intent to reach three goals: (1) to prevent theowner from escaping liability by claiming the driver was acting out-side his scope of employment;' (2) to allow a financial recovery bya damaged innocent third party;" (3) to increase highway safety bymotivating a more careful selection of drivers." Analysis discloses nointent on the part of the legislature to protect the negligent third per-son from a suit by the owner of the car-the intent of the law-makersbeing focused on the sole purpose of germinating a right in the in-jured third person. Supporting this analysis which precipitates into alimited agency is the argument that a liability, and not an agencywas in reality created by the statute--the doctrine of respondeatsuperior being chosen merely as a convenient "conduit" for effectuat-ing the purpose."A more convincing approach appealing to those unacquainted withstatutory interpretation and adhering to "curb stone equity" is foundin the bold fact that should the doctrine of contributory negligence begiven full application, a grossly negligent defendant-third personcould shield himself from a suit by the bailor-owner for damages bymerely using the defence of imputed negligence. No one could argue"' Potts v. Pardee, 220 N.Y. 413, 116 N.E. 78, 80 (1917); Prosser, Torts§ 66 (1941).Christensen v. Hennepin Transp. Co., 215 Minn. 349, 10 N.W.2d 406(1943).'While the statute is remedial, it is remedial solely in favor of an in-jured third person." Gochee v. Wagner, 232 App. Div. 401, 250 N.Y.Supp. 102, 105 (4th Dep't 1931).250 N.Y. Supp. at 105.Plaumbo v. Ryan, 213 App. Div. 517, 210 N.Y. Supp. 225 (2d Dep't1925); Note, 20 Notre Dame Law. 160 (1944).Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406(1943); Cohen v. Neustadter, 257 N.Y. 207, 160 N.E. 12 (1928).National Trucking & Storage Co. v. Driscoll, 64 A.2d 304 (Munic. Ct.App. D.C. 1949); Note, 34 Minn. L Rev. 57 (1949).3' Note, 17 Corn. L.Q. 158 at 164 (1931). The author, in discussing Gocheev. Wagner, drew this sharp theoretical line of distinction.92 Ballman v. Brinker, 211 Minn. 322, 1 N.W.2d 365 (1941).NORTH DAKOTA LAW REVIEWwith conscience that this would be serving the purpose of the statute.It has been stated that, " . . . the rule of comparative negligencewould serve justice more faithfully than that of contributory negli-gence."" Prosser, affirms the injustice worked by an unexcepted ap-plication of the rule and points out that it operates to place upon oneinnocent party the entire burden of loss for which two are responsi-ble.4The minority argument that under the statutes negligence is imput-ed in a suit by the bailor rests upon the sandy foundation of theoreti-cal consistency. Under a statute similar to that of New York," Iowacourts have held that the relationship of principal and agent is creat-ed between the bailor and bailee." Justification for this result issought in reasoning identified as the "Two Way Rule": i.e., becausethe statute imputes negligence to allow recovery by a damaged thirdparty, it also imputes any contributory negligence of the bailee to theowner in a suit by the latter. The validity of this "rule" succumbsto a broadside of logic that the reason for holding a consenting ownerresponsible to an injured third person for the negligent operation ofhis automobile is totally absent in an action by the owner for recov-ery of damages sustained as a result of the concurrent negligence ofhis operator and the injured. "It is a non sequitur to say that, becausethe policy of the statute is to impose liability against the bailor, italso is its policy to impute to him the contributory negligence of hisbailee."" An additional argument of the minority is that an illogicalresult would flow from a situation where two bailees are contributor-ily negligent and the owners sue each other for damages.' Not only isthis a very logical result of the application of the statute, but its policyalso bears fruit in that while the owner sustains the loss, the negligentparty does not escape liabiilty for damages to the owner's car. 9 Fur-ther weakening the minority argument of "consistency" is the factthat the concept of a split liability is not new, the majority of moderncases holding no imputation of negligence so as to bar an action by the33 Haeg v. Sprague, Warner & Co., 202 Minn. 425, 281 N.W. 261, 263(1938).3, Prosser, Torts 403 (1941). For supporting arguments see Padway, Com-parative Negligence, 16 Marq. L. Rev. 3 (1931); Mole and Wilson,A Study of Comparative Negligence, 17 Corn. L.Q. 333, 604, 655 (1932)("... only respect for its age can now be urged for its complete reten-tion."):C Iowa Code Ann. § 321.493 (1949).3" Secured Finance Co. v. Chicago R.I. & P. Ry., 207 Ia. 1105, 224 N.W.88 (1929). Prosser, Torts § 66 n. 97 (1941).'7 Christensen v. Hennepin Transp. Co. 215 Minn. 294, 10 N.W.2d 406(1943). Maclntyre, The Rationale of Imputed Negligence, 5 U. of Tor-onto L.J. 368, at 377 (1944) approves this criticism.See 17 Corn. L.Q. 158 (1931), for an exacting review of the Gochee case.3 Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711 (1949) (where adouble suit did arise).NOTESbailor against the third person; '  while in earlier cases negligencewas imputed in a suit by the bailor " but not when the third partysued the owner.4 2It is important to note that liability under the statutes is gaugedin proportion to the consent of the bailor,4" so that an express limita-tion of the bailment may relieve the bailor from liability and in ef-fect negative the value of the procedural aid provided by the statute.4It is submitted that the preservation of rights in the bailor givenby the interpretation of Minnesota and New York courts achieves thepurpose of the statute in providing only a limited armor from thecommon law for the third person. Mesmerized by the logical appealof the "Two Way Rule," the minority courts have unwittingly blessedthe concurrently negligent defendant with an immunity from suitwhich by accepted rules of statutory interpretation can not be justi-fied.Richard L. HealyEVIDENCE-JURY TRIALS-WEIGHT OF EVIDENCE-CREDI-BILITY OF WITNESSES--JUDICIAL COMMENT THEREON. Per-haps the most heavily criticized factor in the administration of justice,subject to vicious attack by both laymen and practitioners, is thetrial by jury. Arguments center not upon abolition of this constitu-tionally established right but upon the obvious defects in its practicalresults.Among the many suggestions for improving this important aspect ofdemocratic justice is the granting of greater powers to the trial judge,particularly permitting him to comment upon the weight of the evi-dence and credibility of witnesses. Such a suggestion is neither newnor untried, but has been a controversial question within our coun-try for nearly 150 years.HISTORICAL ORIGIN AND DEVELOPMENTNo study of the problem of judicial comment may be adequatelyundertaken without a thorough understanding of the political impli-40 See Note, 6 A.L.R. 316 (1920) for recent cases illustrating the changeto the modern viewpoint taken by the courts after 1908.Puterbaugh v. Reasor, 9 Ohio St. 484 (1859); Welty v. Indianapolis &V. Ry., 105 Ind. 55, 4 N.E. 410 (1886).12 Premier Motor Co. v. Tilford, 61 Ind. App. 164, .111 N.E. 645 (1916);Pease v. Montgomery, 11 Me. 582, 88 AtI. 973 (1913).4:, Chaika v. Vandenberg, 252 N.Y. 101, 169 N.E. 103 (1929); Stapletonv. Hertz Drivurself Stations, 131 Misc. 52, 225 N.Y. Supp. 661 (Sup.Ct. 1927).44 Note, 17 Corn. L.Q. 158 at 161 (1931).

Automobiles - Imputation of Negligence under Safety Responsibility Statutes - Agency and Bailment Theories

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Automobiles - Imputation of Negligence under Safety Responsibility Statutes - Agency and Bailment Theories

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