Cockrell v. Sullivan

• Decision Date: 06 November 1951
• Docket Number: Gen. No. 9760
• Citation: 344 Ill.App. 620,101 N.E.2d 878
• Parties: COCKRELL v. SULLIVAN.
• Court: United States Appellate Court of Illinois

Page 878

101 N.E.2d 878

344 Ill.App. 620

COCKRELL v. SULLIVAN.

Gen. No. 9760.

Appellate Court of Illinois, Third District.

Nov. 6, 1951.

Jenkins, Olsen & Cantrill, Springfield, for appellant.

Roscoe Bonjean, Maurice Kepner, Springfield, for appellee.

WHEAT, Justice.

Defendant Casper Sullivan, appeals from a judgment for $269.80 in favor of plaintiff Gertrude Cockrell, entered by the Circuit Court of Sangamon County on a jury verdict for damages resulting from a collision of plaintiff's automobile with that of defendant, the latter being driven by a thief at the time.

The facts seem undisputed. When defendant's car was stolen on January 17, 1950, in Springfield, Illinois, the key was in the ignition switch, having been left there by defendant in violation of paragraph 189 of Chapter 95 1/2 of the 1949 Illinois Revised Statutes. That the thief was negligent and plaintiff in the exercise of due care just prior to and at the time of the accident is not controverted. The jury found in answer to a special interrogatory that the thief, who was neither apprehended nor identified, was 'in flight' at the time of the collision.

Defendant concedes that on its facts, the instant case is identical with the situation before the First District Appellate Court in the case of Ostergard v. Frisch, 1948, 333 Ill.App. 359, 77 N.E.2d 537 where a divided court held the defendant liable. Plaintiff states that her complaint was drafted and her suit tried upon the authority of such case. As in such case, the amount here involved is small, but as was there observed, 'the principle of law involved is of far reaching importance'. Because of this and later decisions in other jurisdiction, it is pertinent that the legal principles involved be re-examined.

Liability is predicated here, as in the Ostergard case, upon the following provision of the Uniform Traffic Act: 'No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway', Ill.Revised Statutes 1949, Ch. 95 1/2, Sec. 189(a).

Section 21, paragraph 118 of the Act makes violation of any of its provisions a misdemeanor, and Section 137, paragraph 234 provides certain penalties therefor.

In the majority opinion in the Ostergard case [333 Ill.App. 359, 77 N.E.2d 542] the Court stated: 'The reasoning in Ross v. Hartman; Schaff v. [R. W.] Claxton [Inc.]; Malloy v. Newman; Maggiore v. Laundry and Dry Cleaning Service [La.App., 150 So. 394], and Moran v. Borden Co. [309 Ill.App. 391, 33 N.E.2d 166] is sound and should be followed.'

A complete discussion of these cases is unnecessary because of the excellent analysis in the dissenting opinion of Justice Niemeyer but the following additional comments seem pertinent. In Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 15, 158 A.L.R. 1370, (followed in Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532 in the same Court) the Court stated: 'Violation of an ordinance intended to promote safety is negligence. * * * The ordinance is intended to prevent such consequences. Since it is a safety measure, its violation was negligence. * * * Both negligence and causation are too clear in this case, we think, for submission to a jury.' The Illinois rule is to the contrary, to-wit: that violation of such a statute or ordinance is not negligence per se but is only prima facie evidence of negligence. Johnson v. Pendergast, 308 Ill. 255, 139 N.E. 407. Stivers v. Black & Co., 315 Ill.App. 38, 42 N.E.2d 349. It is further noted that the views expressed in the case of Malloy v. Newman, 310 Mass. 269, 37 N.E.2d 1001, cited with approval in the Ostergard case, were completely abandoned some seven months after such Illinois decision, in the case of Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560, 563. In that opinion two cases were principally relied upon by counsel, Slater v. T. C. Baker Company, 261 Mass. 424, 158 N.E. 778, as authority for the rule that the chain of causation was broken by the act of the thief, and the Malloy case holding to the contrary. The Court said: 'We are unable to reconcile the rule applied in the majority opinion in the Malloy case with that applied in the Slater and Sullivan cases. The time has come when we must choose between them. We prefer the latter. It is in accord with the prevailing view in other jurisdictions.'

In the case of Wannebo v. Gates, 1948, 227 Minn. 194, 34 N.W.2d 695, 699, ...