Summary
In Citizens', the record shows that the driver was authorized to use the vehicle by the owner-employer's foreman and that it was being used on the employer's business.
Summary of this case from Roberts v. PoseyOpinion
Docket No. 53, Calendar No. 48,340.
Decided September 16, 1960.
Appeal from Hillsdale; Arch (Charles O.), J. Submitted June 13, 1960. (Docket No. 53, Calendar No. 48,340.) Decided September 16, 1960.
Case by Citizens' Mutual Automobile Insurance Company, a Michigan corporation, and Farn H. Salmon against J. Wallace Houtz for personal injuries and property damage arising from collision of automobile and farm tractor. Judgment for plaintiffs. Defendant appeals. Affirmed.
Lucien D. Walworth, for plaintiff Citizens' Mutual Automobile Insurance Company.
Dimmers, MacRitchie Moes, for plaintiff Salmon.
Harold F. Bristol, for defendant.
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 the 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.
To the point of this question, see Haveman v. Kent County Road Commission, 356 Mich. 11.
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 plaintiffs' 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 Frazier 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, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.