Michigan Transportation Co. v. Good

167 N.W.2d 876, 16 Mich. App. 226, 1969 Mich. App. LEXIS 1351

• Court: Michigan Court of Appeals
• Decided: February 27, 1969
• Docket: Docket No. 3,848
• Status: Published

Opinion

Per Curiam.

This action followed a collision between 2 motor vehicles. Plaintiff Michigan Transportation Company’s vehicle was driven by one of its employees. Plaintiffs brought this action in an effort to recover for damages caused Michigan Transportation Company’s vehicle in the collision. The trial judge denied recovery after finding that both drivers were negligent and concluding that plaintiffs could not recover because of the imputation to plaintiff Michigan Transportation Company of its driver’s negligence.

The question presented is whether the contributory negligence of a driver-employee acting within the scope of his employment bars his employer and the employer’s subrogee from recovering for damage to the employer’s property caused by the negligence of both the employee and a third party.

That question was recently considered and decided by our Court in Nagele-Kelly Manufacturing Company v. Hannah (1968), 13 Mich App 427. In that case we said that, while the doctrine of imputed contributory negligence has a bad reputation and has been abrogated in most applications, we were convinced that the Michigan Supreme Court had refused to abolish application of that doctrine in an employer’s suit to recover for property damage.

The plaintiffs assert that there is no rational basis for refusing to impute the negligence of a driver to his passenger or his vicariously liable owner or of one spouse to another and yet to continue to impute the negligence of an employee to his vicariously liable employer in a suit by the employer seeking to recover for damages done to his property. ITowever, we think a distinction might properly he drawn on the ground that the employer is ordinarily engaged in a profit-making venture while in the other situations referred to that is not ordinarily the case. See Nagele-Kelly Manufacturing Company v. Hannah, supra, page 432, footnote 6.

Be that as it may, the plaintiffs concede that no State court has abolished the imputed contributory negligence doctrine in the employer-employee situation where the employer seeks to recover for property damage, as distinguished from an action by the employer for personal injuries suffered as a passenger in a car driven by his employee. That being the case and the Michigan Supreme Court having refused to go that far in abolition of the doctrine (see Universal Underwriters Insurance Company v. Hoxie [1965], 375 Mich 102), we adhere to our holding in Nagele-Kelly Manufacturing Company v. Hannak, supra.1

Affirmed. Costs to appellee.

1 See the opinions in Abendschein v. Farrell (1968), 11 Mich App 662, regarding a rule of law overruled in other jurisdictions but not as yet reconsidered by our Supreme Court. See, also, Maxwell v. Maxwell (1969), 15 Mich App 607, concerning a rule of law adhered to by our Supreme Court after reconsideration.