Collins v. Luper

• Decision Date: 28 May 1971
• Docket Number: No. 456,456
• Citation: 12 Md.App. 109,277 A.2d 445
• Parties: Stephen Edwin COLLINS et al. v. Larry M. LUPER et al.
• Court: Court of Special Appeals of Maryland

Page 109

12 Md.App. 109

277 A.2d 445

Stephen Edwin COLLINS et al. v. Larry M. LUPER et al.

No. 456.

Court of Special Appeals of Maryland.

May 28, 1971.

M. Michael Cramer, Rockville, for appellants.

Charles W. Bell, Rockville, with whom were John T. Bell and Frank S. Cornelius, Rockville, on brief, for appellees.

Argued before MURPHY, C. J., and MOYLAN and POWERS, JJ.

MURPHY, Chief Judge.

On October 29, 1966, appellee Luper was a passenger in a car driven by appellant Stephen Collins and owned by his father, appellant Edwin Collins. Earlier that day, Stephen had met his friends, including Luper, at a local drugstore; the boys, six in number, left in the Collins' car for the countryside to drink beer at approximately 7:45 p. m. Luper and Stephen were then eighteen years old. One of the boys, Edward Roche, was fifteen. Each of the boys drank two or three cans of beer. Thereafter, they returned to Rockville around 11:00 p. m. Stephen parked the car on the street so that he and two of his friends could urinate in some nearby bushes. He left the ignition keys in the car. Luper, Edward Roche, and John Sorrells remained in the car. Appellant Edwin Collins happened to be driving by at this time and stopped his truck to speak with his son. As the two were conversing outside the car, Roche suddenly drove off in the Collins' car at a high rate of speed. He struck a utility pole a short distance away and Luper was injured.

Luper sued both Collinses and Roche. As to the former, he claimed that Stephen had a duty not to leave the vehicle unattended, without stopping the engine, locking the ignition, and removing the key, or without leaving the vehicle in charge of a competent person and in such a condition as to make it possible for others to readily operate it. Luper alleged that Stephen negligently breached this duty and, as a result, Roche, either as Stephen's agent or otherwise, thereafter operated the vehicle in a negligent manner causing Luper's injuries. Luper claimed in separate counts of his declaration that Stephen's negligence was imputed to the elder Collins since he had assumed liability for his minor son's negligence by signing his application for a driver's license.

At the trial before a jury in the Circuit Court for Montgomery County the evidence showed without conflict that Stephen left the radio and heater on and the keys in the ignition when he left the car to urinate. The evidence was conflicting as to whether he left the engine running. Stephen testified that he had not; the elder Collins's testimony supported his son's version. Roche's testimony, introduced by deposition, was that Stephen left the engine running; Luper's testimony tended to support Roche's version.

Luper testified that only twelve cans of beer had been consumed the entire night and that no one was drunk. ¹ Stephen admitted knowing that Roche had had a 'couple' beers, and that he was only fifteen years old. The evidence showed the when Stephen left the car to urinate Roche was sitting in the front seat, next to the driver's seat, with Luper next to Roche in the passenger seat, and Sorrells in the back seat. Both Luper and Roche testified that when the elder Collins arrived on the scene, someone outside the car said 'get the car out of here.' As a result, according to Luper, Roche 'slid under the wheel and just put it in gear, and it went.' Neither Luper nor Roche could identify the person who made the statement; both said that the radio and heater were running in the car, and that the windows were rolled up at the time the statement was made. Stephen and his father both denied either hearing or making the statement. Hearsay evidence was received to the effect that Sorrells told Stephen that it was Luper who directed that the car be moved.

On this evidence the case was submitted to the jury which returned a verdict against both Collinses and Roche for $6,866. On appeal, the Collinses contend that the trial judge erred in overruling their motions for directed verdicts and in submitting to the jury 'the question of whether or not appellant Collins's vehicle was left 'unattended' within the meaning of the Maryland Code when appellant (Stephen) left the car with the ignition keys in it for a brief period of time while his companions remained in the car.'

Maryland Code (1957 Edition) Article 66 1/2, Section 247 (now Section 11-1101-1970 Repl.Vol.), provides:

'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 to the curb or side of the highway.'

It is the purpose of the statute 'to insure the safety of the public' by preventing 'some unauthorized person from starting a car or to prevent the start of a car by gravity.' Hochschild, Kohn & Co. v. Canoles, 193 Md 276, 283-284, 66 A.2d 780, 783-784. In other words, 'the duty to the public created by the statute was primarily to protect against a theft of or tampering with a motor vehicle and to prevent them from moving under their own momentum should the brakes fail.' Liberto v. Holfeldt, 221 Md. 62, 66, 155 A.2d 698, 701. The term 'unattended motor vehicle' has been held to mean 'without anyone present (in the vehicle) who is competent to prevent any of the probable dangers to the public.' Lustbader v. Traders Delivery Co., 193 Md. 433, 439, 67 A.2d 237, 240. As that case made clear, the 'probable dangers to the public' are different under different circumstances. Thus, where a car parked on the brow of a hill could start by the force of gravity, attendance is ordinarily required by a person competent to stop the vehicle; on the other hand, where a car is not so parked as to be capable of moving by force of gravity, 'the danger to be guarded against is the interposition of some human agency such as a mischievous child or a prospective thief' so that, in such circumstances, the attendance required by the statute need not be by a licensed or competent motor vehicle operator or even a person familiar with the mechanism or operation of an automobile. Lustbader, 193 Md. at p. 439, 67 A.2d at p. 240. It has been held that the statute does not prohibit leaving the vehicle with its motor running, 'if the car has someone in a position to prevent its moving.' Hochschild, Kohn & Co. v. Canoles, supra, 193 Md. at p. 284, 66 A.2d at p. 783. It was also held in Lustbader that the statute does not require a guarantee that a car cannot move or be moved to the damage of the public; it only requires the taking of reasonable precautions. In the final analysis, the statute is complied with when the operator of the vehicle 'leaves with it a person who may be ordinarily capable of coping with the kind of emergencies that may be expected to arise under the particular circumstances of ...