Bouldin v. Sategna

• Decision Date: 30 January 1963
• Docket Number: No. 7082,7082
• Citation: 1963 NMSC 17,71 N.M. 329,378 P.2d 370
• Parties: Harvey L. BOULDIN, Moline Bouldin and United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. Mario SATEGNA, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 370

378 P.2d 370

71 N.M. 329

Harvey L. BOULDIN, Moline Bouldin and United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. Mario SATEGNA, Defendant-Appellee.

No. 7082.

Supreme Court of New Mexico.

Jan. 30, 1963.

James L. Brown, Farmington, for appellants.

Tansey, Wood, Rosebrough & Roberts, Farmington, for appellee.

MOISE, Justice.

Plaintiffs appeal from a judgment dismissing their complaint seeking compensation for damages allegedly suffered when an automobile operated by plaintiff, Harvey F. Bouldin, and in which his wife, Moline Bouldin, was riding, collided with an automobile belonging to the defendant, Mario Sategna. Plaintiff, United States Fidelity and Guaranty Company, joined in the complaint claiming to be subrogated to the rights of the other two plaintiffs to the extent of $691.60, which it paid pursuant to a policy of insurance on account of damages to the Bouldin automobile growing out of the collision.

The judgment appealed from sustained defendant's motion to dismiss because of failure of the complaint to state a claim upon which relief could be granted. From the complaint it appears that in the early evening (the exact hour is not alleged) of November 12, 1960, defendant parked his 1957 Chevrolet pickup truck as a lounge in Bloomfield, New Mexico; that the defendant left the vehicle unattended and negligently failed to remove the ignition keys from the truck; that because of this action and as a direct and proximate result thereof some unknown parties borrowed or stole the truck and later abandoned it in the middle of the highway some eight miles east of Farmington and that about 6:30 p. m. of that day of the Bouldins collided with the truck and were injured and their car damaged while traveling east from Farmington, and as a result of the negligence complained of.

We have a statute prohibiting the leaving of a car unattended and without locking and removing the key. This statute is Sec. 114 of Chap. 139, N.M.S.L.1953, being the Uniform Act Regulating Traffic on Highways, and appears as Sec. 64-18-53, N.M.S.A.1953. It reads as follows:

'No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels in such manner that the vehicle will be held by the curb or will leave the highway if the brake fails.'

The question which we are called upon to answer may be stated thus: Is the owner of a car who leaves it unattended and without removing the key in violation of Sec. 64-18-53, N.M.S.A.1953, liable for injuries to persons and property suffered when the car is hit after its having been abandoned on the highway by a thief who stole it?

The problem is one which has been considered by a number of courts, but is of first impression with us. As is not surprising, the courts are not in accord as to the correct answer. A 1957 annotation in 51 A.L.R.2d 633, 663, states that, 'a majority of the cases have taken the position that the act of the thief prevented a finding that the injury or damage was the proximate result of any prior negligence in the manner in which the vehicle was parked, or, at least, that the trier of the facts could legitimately come to that conclusion.'

The note in 51 A.L.R.2d 633, 665, states that, '* * * there are a few instances in which the view has been taken that the fact that the motor vehicle left in a public street was stolen, with injury resulting from the thief's operation of the vehicle, did not prevent a finding that such injury was the proximate result of some negligence inhering in the manner in which the vehicle was originally parked.' The jurisdictions so holding are noted as the District of Columbia (Ross v. Hartman, 78 App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370), Illinois (Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 51 A.L.R.2d 624), and an Ohio trial court (Garbo v. Walker, Ohio Com.Pl., 129 N.E.2d 537). To these we would add Tennessee (Justus v. Wood, 209 Tenn. 55, 348 S.W.2d 332, 349 S.W.2d 793, decided since 1957).

Quite generally it is held that where there was been no violation of a statute or ordinance against leaving a car unattended and unlocked, there is no liability in the owner. The basis for this conclusion is most effectively expressed in the oft cited case of Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23.

The general rule as stated in 51 A.L.R.2d 633, 662, is:

'* * * that when, between negligence and the occurrence of an injury, there intervenes a wilful, malicious, and criminal act of a third person which causes injury but was not intended by the negligent person and could not have been foreseen by him, the causal chain between the negligence and the accident is broken. On the other hand, if, at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act. And the surrounding circumstances, including the nature of the locality in which the negligence occurred, may be sufficient to render an intervening criminal act reasonably foreseeable within the meaning of the latter rule.'

The following are cases holding defendant not liable as a matter of law even though negligent per se or presumptively negligent for failure to comply with a statute or ordinance demanding locking of a vehicle when leaving it unattended. So holding are Wannebo v. Gates, 227 Minn. 194, 34 N.W.2d 695; Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272; Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330; Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560; Corinti v. Wittkopp, 355 Mich. 170, 93 N.W.2d 906; Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243; Liberto v. Holfeldt, 221 Md. 62, 155 A.2d 698; Hersh v. Miller, 169 Neb. 517, 99 N.W.2d 878; Clements v. Tashjoin (R.I.1961), 168 A.2d 472; Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395.

These cases, while finding negligence per se or a question a negligence in the violation of the statute or ordinance, concluded there can be no liability either because the negligence was not the proximate cause of the injury, or that the injury caused by the thief was not reasonably foreseeable, or that the theft was an efficient intervening cause relieving defendant of liability.

It is clear that in New Mexico one who violates a statute or ordinance is guilty of negligence per se and when as a proximate result thereof a person is injured, damages may be recovered if the statute or ordinance violated was enacted for the benefit of the person injured. Zamora v. J. Korber & Co., Inc., 59 N.M. 33, 278 P.2d 569.

Our inquiry is accordingly directed to (1) whether the statute was intended for protection of plaintiff, and (2) the question of proximate cause.

We entertain some doubts as to the first question because Sec. 64-18-53, N.M.S.A.1953, was enacted as a part of our traffic regulation statute (Chap. 139, N.M.S.L.1953) and not of the anti-theft act (Chap. 138, N.M.S.L.1953) passed at the same session, and further because by its language it is clear that its purpose was to prevent acts which could lead to an automobile inadvertently moving without intention that it should.

Logically, in view of this fact, it would seem to us that the legislative intent behind the enactment was to further the welfare and safety of the motoring public. See comments in 34 Iowa L.R. 376 and 35 Minn.L.R. 81. It would follow that in considering liability, we can limit our...