Citizens' Mutual Automobile Insurance v. Houtz

104 N.W.2d 763, 361 Mich. 309, 1960 Mich. LEXIS 324

Opinion

Black, J.

Plaintiffs’ suit, for damages to person and property, arose out of an automotive collision which occurred in September of 1957 on a public-highway of Hillsdale county. It was tried to the court without a jury and resulted in judgment for the plaintiffs in the sum of $1,526.02. Defendant has-appealed.

Two questions are presented for review. The-first is whether an ordinary farm tractor is a “motor vehicle” within purport and meaning of our owner-liability statute (see CLS 1956, §§ 257.33, 257.401 [Stat Ann 1952 Rev §§ 9.1833, 9.2101] ).

* The second question, assuming an affirmative answer to the-first, is whether thé defendant owner of the involved farm tractor was shown as being legally responsible to plaintiffs for the rather clearly established causal negligence of one Robert Sines, driver at the time-of collision of such tractor.

Careful review of defendant’s appendix, and of the original record brought here, discloses that the-first stated question was neither raised nor considered in the court below. Recalling again that this is a court of review rather than trial anew, it must be held that the question is not open for appellate consideration. We proceed, as did the trial judge, on assumption that the tractor was a motor-vehicle within the public-protective scope of said statute.

The case was tried with principal address to plainiiffs’ contention that Sines was an employee of defendant and was engaged in the course of such employment at the time his acts of negligence were committed. However, our recent decision in Frasier v. Rumisek, 358 Mich 455, considered, it was unnecessary that plaintiffs prove liability under the doctrine •of respondeat superior. It was enough that plaintiffs establish that the tractor was, on the occasion, driven by Sines with the express or implied consent •or knowledge of defendant. This they did.

"We vote to affirm, with costs to plaintiffs.

Dethmers, C. J., and Carr, Kelly, Smith, Ed■wards, Kavanagh, and Souris, JJ., concurred.

To the point of this question, see Haveman v. Kent County Road Commission, 356 Mich 11.