Bowerman v. Sheehan , 242 Mich. 95 ( 1928 )

In the case of Daugherty v. Thomas, 174 Mich. 371 (45 L.R.A. [N. S.] 699, Ann. Cas. 1915A, 1163), this court held that a similar statute was in conflict with both Federal and State Constitutions because in effect it required a citizen to respond in damages for the tort of another. That case was consistently followed by this court (see Loehr v. Abell,174 Mich. 590; Mitchell v. Lumber Co., 175 Mich. 75;Barry v. Metzger Motor Car Co., 175 Mich. 466; Levyn v. Koppin,183 Mich. 232; Johnston v. Cornelius, 193 Mich. 115), untilHawkins v. Ermatinger, 211 Mich. 578, where this court was equally divided on the question of the validity of the act now before us, although all agreed that it created a liability, and went beyond prescribing a rule of evidence. The opinion in theDaugherty Case, written by Mr. Justice STONE, so fully considers the question then discussed that I shall not attempt to add to it or to the authorities there cited. Its reasoning is, in my judgment, controlling upon the question of the validity of the act now before us.

But the power here exercised by the legislature is of so doubtful a character for another reason that without resting decision on such other grounds, I do not think they should be overlooked. They at least aid in fortifying the correctness of the decision in the Daugherty Case that the legislation was beyond the police power of the State and infringed constitutional rights. I refer to the right of the individual to contract. With due regard for the constitutional rights of the citizen, he may not be required to respond for the acts of another except upon the application of the doctrine of principal and agent or master and servant. There is a wealth of decision upon the so-called "family purpose" doctrine. Several States sustain liability against the head of the family under that doctrine, among them see Griffin v. Russell, 144 Ga. 275 (87 S.E. 10, L.R.A. 1916F, 216, Ann. Cas. 1917D, 994); Stowe v. Morris, 147 Ky. 386 (144 S.W. 52, 39 L.R.A. [N. S.] 224);Birch v. Abercrombie, 74 Wn. 486 (133 P. 1020, 50 L.R.A. [N. S.] 59); Ulman v. Lindeman, 44 N.D. 36 (176 N.W. 25, 10 A.L.R. 1440); Plasch v. Fass, 144 Minn. 44 (174 N.W. 438, 10 A.L.R. 1446); Hutchins v. Haffner, 63 Colo. 365 (167 P. 966, L.R.A. 1918A, 1008); Davis v. Littlefield,97 S.C. 171 (81 S.E. 487); King v. Smythe, 140 Tenn. 217 (204 S.W. 296, L.R.A. 1918F, 293). While other States repudiate it as unsound, among them see McGowan v. Longwood,242 Mass. 337 (136 N.E. 72, 23 A.L.R. 617); Doran v. Thomsen,76 N.J. Law, 754 (71 A. 296, 19 L.R.A. [N. S.] 335); VanBlaricum v. Dodgson, 220 N.Y. 111 (115 N.E. 443, L.R.A. 1917F, 363); Blair v. Broadwater, 121 Va. 301 (93 S.E. 632, L.R.A. 1918A, 1011); Myers v. Shipley, 140 Md. 380 (116 A. 645, 20 A.L.R. 1460); Watkins v. Clark, 103 Kan. 629 (176 P. 131); Parker v. Wilson, 179 Ala. 361 (60 So. 150, 43 L.R.A. [N. S.] 87); Reynolds v. Buck,127 Iowa, 601 (103 N.W. 946); Arkin v. Page, 287 Ill. 420 (123 N.E. 30, 5 A.L.R. 216); Pratt v. Cloutier, 119 Me. 203 (110 A. 353, 10 A.L.R. 1434); Woods v. Clements, 113 Miss. 720 (74 So. 422, L.R.A. 1917E, 357); Elms v. Flick, 100 Ohio St. 186 (126 N.E. 66); Hays v. Hogan, 273 Mo. 1 (200 S.W. 286, L.R.A. 1918C, 715 Ann. Cas. 1918E, 1127); McFarlane v. Winters, 47 Utah, 598 (155 P. 437, L.R.A. 1916D, 618).

I think the reasoning of the cases sustaining the doctrine of "family purpose" fallacious and that this court inJohnston v. Cornelius, supra, joined the many other States in its repudiation. It was well said by the court of appeals of Virginia in Blair v. Broadwater, supra:

"The books abound with cases holding for and against the parent's liability for the acts of his child in this class of cases. The authorities are not reconcilable, and it seems to us that the only safe course to pursue is to revert to first principles and adhere to ancient landmarks, rather than to yield a too ready allegiance to an admittedly new principle sought to be engrafted upon the law of master and servant and principal and agent to meet supposed exigencies of new conditions incident to the advent of automobiles."

An examination of the cases cited demonstrates that the doctrine of "family purpose" is bottomed on the theory of principal and agent or master and servant. I quote a few excerpts from cases sustaining the doctrine:

"It must also be conceded that a parent is not liable for the torts of his child solely on the ground of relationship. The liability, if any exists, must rest in the relation of agency or service." Birch v. Abercrombie, supra.

"The liability of the husband, if any exists in this case, must be based upon the principal and agent or master and servant theory." Hutchins v. Haffner, supra.

"Under well-settled principles, the defendant's liability must depend upon whether the son operating the automobile was his servant and engaged upon his business at the time the negligence occurred." King v. Smythe, supra.

I also quote from a few of the decisions which decline to accept the doctrine:

"This makes the defendant's liability to depend upon the object for which he purchased the machine, which was for the pleasure of the family; in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. This is contrary to the doctrine of Evers v. Krouse, 70 N.J. Law, 653. It would subject a parent to liability if he bought for his son a baseball, or for his daughter a golf club, and by permitting them to be used by his children for their appropriate purposes, injury occurred." Doran v. Thomsen, supra.

"The doctrine contended for amounts to this: That the pleasure of the family in its utmost detail is the business of the father. As applied to the case at hand, it means that the son, in pursuit of his own pleasure, with an automobile owned by his father, was engaged in the business of the father. But the doctrine, we think, has no firm foundation in reason or common sense. In theory it overlooks well-settled principles of law; in practice it would interdict the father's generosity, and his reasonable care for the pleasure or even the well-being of his children, by imposing a universal responsibility for their acts." Parker v. Wilson, supra.

"The development of the law on this subject has been attended by a rather slow process of clarification. When the automobile was new and strange, and was regarded with some wonder and considerable fear, there was a tendency to look upon it as a dangerous thing, fraught with such possibility for harm that the owner should always be held responsible for its use. When it commenced to take the place of the family horse, this view had to be abandoned. The notion, however, of general liability on the part of the owner for use of his car having been planted in the mind, it lingered there like a superstition. Courts were reluctant to ignore it, and as a result, an adaptation of the law of master and servant, and principal and agent, was resorted to, to, explain the liability. If a man purchased an automobile and allowed his wife and his son and daughter to use it, the use was his by virtue of representation, whether representation existed in fact or not. The deduction was facilitated by employment of the fine art of definition — putting into the definition of the term 'business' the attributes necessary to bolster up liability. So, if daughter took her friend riding, she might think she was out purely for the pleasure of herself and her friend, but she was mistaken; she was conducting father's 'business' as his 'agent.' As this incongruity became more and more apparent, a further concession was sometimes made. If the owner allowed a member of his family to use the automobile, he might not be liable, but it was 'presumed' the use was his by representation. If son took his best girl riding, prima facie it was father's little outing by proxy, and if an accident happened, prima facie father was liable. Some courts were inclined to get rid of the difficulty of resting liability on the one existing fact — ownership of the car — by declaring that the question of 'agency' was one for the jury — a process known in some quarters as 'passing the buck.' The sooner the courts settle down and deal on the basis of fact and actuality with a vehicle which has revolutionized the business and the pleasure of the civilized world, the better it will be, not only for society, but for the courts." Watkins v. Clark, supra.

Now the relation of principal and agent, of master and servant exists, at least between private individuals, by reason of contract, express or implied. The right to contract is a right secured by both the Federal and State Constitutions. I had supposed that the right to so contract, to pick out agents and servants, was the right of the individual citizen; that it was not the function of the legislature to pick out such agents and servants for him. If the individual is secured in his right to contract by the Constitution, it is for him to say whom he will contract with, whom he will employ. While the legislature may prescribe rules of evidence and may prescribe what prima facie creates such relation with its consequent liability, it is, to say the least, very doubtful if it may by declaring a conclusive presumption fix liability upon one who is neither a principal nor a master, and by legislative fiat not only deprive the citizen of the right to contract but make a contract for him and conclusively fix his liability under such contract relations. A decision of this particular question is not necessary to decision of this case, and what has been said may properly be considered dictum, as this court has declined to accept the "family purpose" doctrine. But the power of the legislature to select agents and servants for the individual is of such doubtful character as to strengthen the belief that the Daugherty Case was correctly decided, and that legislation making an individual liable for the tort of another is invalid, as there held.

I think the case should be reversed and a new trial granted, with costs of this court to defendant.

NORTH and WIEST, JJ., concurred with FELLOWS, J.