In McCormick, the Court determined that the fact that the legal title to the property in question stood in the names of various parties at different times did not deprive it of its character as a partnership asset, because the parties treated the property as belonging to all of them. Id. at 530-531; see also Mathews v Wosek, 44 Mich App 706, 714 n 7; 205 NW2d 813 (1973) (noting that although "there is a presumption of some vigor that the named owner is the beneficial owner," the intent of the parties remains the focus because "title is often taken in individual names when ownership by the firm is intended"). Unlike in McCormick, in this case, the record shows that appellee and decedent did not treat the real property as if it belonged to both of them.
Real property owned by a partnership may be held either in the partnership's name, Tenn. Code Ann. § 61-1-107(c);Brown v. Brown, 45 Tenn. App. 78, 97, 320 S.W.2d 721, 729 (1958), or in the name of one or more of the partners. In re Magnani, 223 B.R. 177, 182 (Bankr.N.D.Iowa 1997); Mathews v. Wosek, 205 N.W.2d 813, 817 (Mich.Ct.App. 1973); Grissum v. Reesman, 505 S.W.2d 81, 87 (Mo. 1974); State v. King, 460 N.E.2d 1143, 1145-46 (Ohio Ct. App. 1983). Accordingly, the record title of a piece of property does not necessarily reveal whether the property belongs to the owners of record or to a partnership of which the owners of record are members. Hunt Co. v. Benson, 21 Tenn. (2 Hum.) 459, 460-61 (1841); see also Wilen v. Wilen, 486 A.2d 775, 783 ( Md.Ct.Spec.App. 1985); Foust v. Old Am. County Mut. Fire Ins. Co., 977 S.W.2d 783, 786 (Tex.App. 1998).
The trial court based its decision partly on its view that, despite defendant's holding legal title to the tractor-trailer, the fact that defendant had leased the vehicle to a corporation for a period of greater than thirty days "deprived" defendant of his status as an owner under the statute. In Mathews v Wosek, 44 Mich. App. 706, 714; 205 N.W.2d 813 (1973), this Court, in rejecting a mutually exclusive construction of subsections (a) and (b) of MCL 257.37; MSA 9.1837, held: There is, however, nothing in the act to indicate that these subsections are mutually exclusive.
No Michigan appellate court has previously addressed the issue whether a lessor of a vehicle subject to a conditional lease such as the lease involved in the present case, which gives the lessee a right to purchase and an immediate right to possession, is an "owner" for purposes of the owner liability statute. Matthews v Wosek, 44 Mich. App. 706; 205 N.W.2d 813 (1973), which defendant vigorously contends was wrongly decided because Judge LEVIN misquoted § 37, did not involve a conditional lease with a right to purchase. The portion of subsection (b) not quoted by Judge LEVIN, which begins with "or in the event," was therefore not pertinent.
'" We follow Mathews v Wosek, 44 Mich. App. 706, 708; 205 N.W.2d 813 (1973), and hold that the trial court's action is to be viewed as an order granting summary judgment for failure to state a claim upon which relief can be granted. GCR 1963, 117.2(1).
The trial judge alternatively ruled that plaintiff's motion for a directed verdict should be granted because defendant's opening statement did not aver a prima facie case. As a starting point, this Court must recognize that this method of disallowing a party from presenting its case to the jury is a limited and disfavored one, 2 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 526, Mathews v Wosek, 44 Mich. App. 706; 205 N.W.2d 813 (1973). That view of such directed verdicts has developed because the opening statement is only for the jury's benefit, and must be made using simple language a jury likely will understand.
That case did not involve the application of an "ownership" statute, and our Court has held that both the lessee and the lessor-legal titleholder may be owners for the purpose of establishing liability. Mathews v Wosek, 44 Mich. App. 706, 714; 205 N.W.2d 813 (1973). The instant case involves the "defensive" assertion of collateral estoppel by a record title owner after the lessee owner had established its right to recover in a previous suit.
This question must be answered separately, remembering that "an immunity from liability should be given a strict construction". Mathews v Wosek, 44 Mich. App. 706, 712; 205 N.W.2d 813, 816 (1973). Nothing in the defendants' answer to the complaint, or in the affidavit in support of the motion for summary judgment, indicates whether or not defendant Yafai was in the course of his employment either when he allowed defendant Al-Huribi to use his automobile or when the accident occurred.
There is no substantial dispute that plaintiff was injured while his father was acting in the course of his employment. Whether a partnership entity has a right to raise a personal immunity claimed by an individual partner as a shield where the partnership is sued for the negligent act of that partner was, until Mathews v Wosek, 44 Mich. App. 706, 712-713; 205 N.W.2d 813, 816 (1973), a question of first impression in Michigan. Assuming, without deciding, that plaintiff's father possessed parental immunity we find the Mathews decision by Judge (now Justice) LEVIN persuasive.
Several courts have permitted an action against the partnership either by recognizing a "business" exception to the parental immunity rule, see Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743 (1952), Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971), Borst v. Borst, 41 Wn.2d 642, 251 P.2d 149 (1952) (en banc), or on the theory that the partnership is a legal entity separate from the individual partners. See Cody v. J.A. Dodds Sons, 252 Iowa 1394, 110 N.W.2d 255 (1961); Wayne-Oakland Bank v. Adam's Rib, 48 Mich. App. 144, 210 N.W.2d 121 (1973); Mathews v. Wosek, 44 Mich. App. 706, 205 N.W.2d 813 (1973); Eule v. Eule Motor Sales, 34 N.J. 537, 170 A.2d 241 (1961). A minority of courts have denied the minor's or spouse's cause of action against the partnership or its individual partners under the view that a partnership is not a separate entity and that a literal reading of § 13 of the Uniform Partnership Act, see CA, § 9-305 CORP. ASS'NS, precludes partnership liability when a partner is individually immune.