Bennett v. Arctic Insulation, 15374

• Citation: 253 F.2d 652,17 Alaska 537
• Decision Date: 26 March 1958
• Docket Number: 15464.,No. 15374,15374
• Parties: Richard E. BENNETT, Administrator of the Estate of Evelyn E. Bennett, Deceased, Appellant, v. ARCTIC INSULATION, Inc., and Delbert E. Boyer, Agent, Acting Within the Scope of His Employment, Appellees. Richard E. BENNETT, Appellant, v. ARCTIC INSULATION, Inc., and Delbert E. Boyer, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

17 Alaska 537, 253 F.2d 652 (1958)

Richard E. BENNETT, Administrator of the Estate of Evelyn E. Bennett, Deceased, Appellant, v. ARCTIC INSULATION, Inc., and Delbert E. Boyer, Agent, Acting Within the Scope of His Employment, Appellees.

Richard E. BENNETT, Appellant, v. ARCTIC INSULATION, Inc., and Delbert E. Boyer, Appellees.

Nos. 15374, 15464.

United States Court of Appeals Ninth Circuit.

March 26, 1958.

Robert A. Parrish, Fairbanks, Alaska, for appellant.

Collins & Clasby, Mary Alice Miller, Charles J. Clasby, Fairbanks, Alaska, Bronson, Bronson & McKinnon, Kirke LaShelle, Charles Legge, San Francisco, Cal., for appellees.

Before HEALY, POPE and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

These two actions, one for personal injuries, and the other for wrongful death, arose out of the same automobile accident. The complaints in both actions contain substantially identical allegations: that defendant Arctic Insulation was the owner of a motor vehicle which had been entrusted to its agent Boyer, the other defendant; that the latter negligently and carelessly left the vehicle unattended, unlocked, and with the keys therein, in an area where several night clubs were located at Fairbanks, Alaska; that the agent Boyer should have known or reasonably have foreseen that the vehicle might be removed without consent or authority; that the vehicle was stolen by a soldier who drove it so negligently that it collided with an automobile in which plaintiff was driving; that in consequence of such collision plaintiff Richard E. Bennett received personal injuries, and his wife, Evelyn E. Bennett, received injuries from which she died.

The court below sustained motions to dismiss both complaints for failure to state a claim, and entered judgment dismissing the actions. Upon this appeal the sole question is whether the plaintiff had set forth a claim upon which he was entitled to go to trial.

The question of the liability of the owner of a motor vehicle to a third person who is run down by a thief who stole it while the keys were left in the car, is one which has frequently been dealt with by the courts. A short but adequate summary of the various ways in which these cases have arisen is found in 1951 Wisconsin Law Review at page 740. Representative cases are also cited in Prosser on Torts, 2nd ed., pp. 276 and 142. For the purposes of this decision, it is unnecessary to review the cases at length or to do other than set forth the reasons why we arrive at our conclusion here. Suffice it to say that the cases fall into two general categories: in some of the cases there have been statutes or ordinances which expressly prohibit the owner or operator of a motor vehicle from leaving his key in the vehicle when it is unattended; in others there has been no such statute. In some jurisdictions which have such statutes it has been held that the owner or operator who has violated the statute becomes liable for injuries done to a third person, or to his property, by a thief who takes the vehicle and causes the injuries. Some cases hold otherwise notwithstanding such statutes. On the other hand, in jurisdictions which like Alaska have no statute upon the subject, it has generally been held that there is no liability, although a few decisions may be found the other way. The cases thus referred to will be found collected and discussed in the texts cited above. The question now before us is what rule should be applied in Alaska. There are no precedents in that jurisdiction.

We must first ascertain what if any duty was owed by the owner and operator of this motor vehicle to this appellant and his wife in respect to the leaving of the keys in the ignition switch in this vehicle. We think that a fair statement of the prevailing view as to the test to be applied in determining whether there was any duty to appellant and his wife is that of Harper & James, The Law of Torts, § 18.2 as follows: "The obligation to refrain from that particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood...