19 N.Y.2d 350, 280 N.Y.S.2d 123, 227 N.E.2d 28, 29 (1967). Also see Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429 (1949); Universal Underwriters Insurance Co. v. Hoxie, 375 Mich. 102, 133 N.W.2d 167 (1965); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); McMartin v. Saemisch, 254 Iowa 45, 116 N.W.2d 491 (1962). In the instant action, the reasoning in the cited cases impels the conclusion that neither Section 41-2-22, U.C.A. 1953, nor Section 41-2-10(2), U.C.A. 1953, requires that the contributory negligence of the minor driver should be imputed to the designated responsible person in his action against a negligent third party.

John v John, 47 Mich. App. 413; 209 N.W.2d 536 (1973), Nagele-Kelly Manufacturing Co v Hannak, 13 Mich. App. 427, 431; 164 N.W.2d 540 (1968), Bostrom v Jennings, 326 Mich. 146; 40 N.W.2d 97 (1949), Bricker v Green, 313 Mich. 218; 21 N.W.2d 105 (1946). See Universal Underwriters Insurance Co v Hoxie, 375 Mich. 102; 133 N.W.2d 167 (1965). The following statement was made in Nagele-Kelly regarding the ambiguity occasioned by the separate opinions presented in this decision:

This settlement was prompted by the "Hoxie" doctrine which provides that the contributory negligence of the driver is not imputed to the owner, thus allowing the owner to recover his property damage upon proof of a defendant's negligence. Universal Underwriters Insurance Co v Hoxie, 375 Mich. 102; 133 N.W.2d 167 (1965). But for the settlement, generally encouraged by the courts, Langston Slaughter would have remained a party to the prior suit until judgment.

The trial judge, who sat without a jury, found both drivers negligent. After reading Universal Underwriters Insurance Company v. Hoxie (1965), 375 Mich. 102, the judge concluded Nagele-Kelly was guilty of contributory negligence because its driver's negligence must be imputed to it. A judgment of no cause of action was entered denying Nagele-Kelly recovery for damages to its property alleged to have been suffered in the collision.

Thus, as to that portion of the claim, the question for this court becomes whether or not any negligence of the driver is imputed to his employer in an action against a third party. Plaintiff relies exclusively on Universal Underwriters Insurance Co. v. Hoxie, 375 Mich. 102, 133 N.W.2d 167, as authority for the proposition that imputed negligence is abolished in Michigan. Despite dictum to that effect in the opinion, the doctrine of imputed negligence, as outlined in the Hoxie opinion, has been applied only in driver-passenger situations.

Some jurisdictions reject the rule that ownership creates a rebuttable presumption of a right to control, and go further to hold that an owner-passenger is liable only for his or her own negligence. See, e.g., Universal Underwriters Ins. Co., 133 N.W.2d 167 (Mich. 1965); Kalechman v. Drew Auto Rental, Inc., 308 N.E.2d 886 (N.Y. 1973). Other jurisdictions phrase the test differently and bar recovery if the owner-passenger actually had a reasonable opportunity to control the negligent driver.

Consequently, we hold that while the right of control of the driver of a car by a passenger may be established upon the facts in a particular case, it may not be presumed.Sherman is equally apposite in its analysis of casual recreational or pleasure activities as constituting a "common enterprise." In the prevailing opinion in Universal Underwriters Insurance Company v. Hoxie (1965), 375 Mich. 102, 109, I wrote: "`The right to control' or constructive control, absent contributory negligence of a passenger or owner, is insufficient to charge them with the negligence of the driver." "Equally untenable is the proposition that this fishing expedition, this mutually shared trip for pleasure and recreation, was a `common enterprise' within the meaning of the doctrine permitting the imputation of negligence. * * *

Its sole imputation is that of liability. [1] Universal Underwriters Insurance Co. v. Hoxie (1965), 375 Mich. 102, 133 N.W.2d 167. Statutes similar to that of Indiana which create such vicarious liability have been judicially construed.

With the removal of the daughter's injury issue from the case, the only direct claim he has remaining is for his automobile damage. He probably could have recovered under Universal UnderwritersInsurance Co. v. Hoxie (1965), 375 Mich. 102. Hoxie holds that the Michigan owner's liability statute, CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), does not relate or impute a driver's negligence to an owner in an action against a third party. Plaintiff, however, depending entirely upon the elimination of the contributory negligence issue, failed to request an instruction advising the jury of this claim.

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, 375 Mich. 102), we adhere to our holding in Nagele-Kelly Manufacturing Company v. Hannak, supra. 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.