Galbraith v. Levin

• Citation: 81 N.E.2d 560,323 Mass. 255
• Parties: GALBRAITH v. LEVIN. GALBRAITH v. COHEN.
• Decision Date: 01 October 1948
• Court: United States State Supreme Judicial Court of Massachusetts

323 Mass. 255

81 N.E.2d 560

GALBRAITH

v.LEVIN.

GALBRAITH

v.COHEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 1, 1948.

Exceptions from Superior Court, Suffolk County; Baker, Judge.

Personal injury actions by George Galbraith against Joseph Levin and against Edward I. Cohen. Verdicts for defendants, and the plaintiff brings exceptions.

Exceptions overruled.

Before QUA, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

D. H. Fulton, of Boston, for plaintiff.

P. S. Ratzkoff, of Boston, for defendants.

SPALDING, Justice.

These are two actions of tort for personal injuries brought against the defendant Cohen (who owned the automobile involved in the accident), and the defendant Levin, his agent. The declaration in each action contained a count for negligence and one for nuisance. Verdicts were returned for the plaintiff, which were recorded under leave reserved. Thereafter, subject to the plaintiff's exceptions, the judge entered verdicts for the defendants. The correctness of this action presents the only question for decision.

These facts could have been found. Late in the afternoon of January 12, 1945, while crossing Shawmut Avenue, Boston, the plaintiff was struck by an automobile owned by the defendant Cohen. The automobile was driven by one Burnash who had stolen it. Cohen, although a resident of this Commonwealth, had registered the automobile in New York but not here.¹ On the morning of the day of the accident the automobile had been parked in a licensed parking lot at the corner of Harrison Avenue and Harvard Street by Cohen's brother, a business associate, to whom Cohen had entrusted the automobile. Later in the morning Levin, an employee of the Cohens, was instructed by Cohen's brother, ‘to take the car out and get chains.’ Levin returned from his errand with the automobile in about an hour, and in accordance with his instructions parked the automobile in the same parking lot, leaving the keys ‘over the sun visor.’ The parking lot was owned by one Hugo but he was not there that day. Levin did not see anyone who appeared to be in charge of the parking lot. One Crowley, who worked for an undertaker next door, testified that on January 12 he kept his eye on the lot from time to time and if he saw some one drive into the lot ‘he would go out and get the money.’ The lot had been used frequently by Cohen and his brother and was ‘the steady parking place for the firm.’ Early in the afternoon Levin went to the parking lot to get the automobile but it was not there. He subsequently learned that it had been stolen.

The defendants concede that the plaintiff was in the exercise of due care, that the automobile was illegally registered, and that it was being operated negligently at the time of the accident.² The plaintiff, notwithstanding the provisions of G.L.(Ter.Ed.) c. 231, § 85A, concedes that the person who was operating the automobile at the time of the accident was not the agent or servant of the defendant Cohen. This concession makes inapplicable our decision in Pochi v. Brett, 319 Mass. 197, 204, 65 N.E.2d 195.

The principal controversy between the parties is whether the case is governed by Malloy v. Newman, 310 Mass. 269, 37 N.E.2d 1001. The defendants argue that Malloy v. Newman, supra, is not controlling for the reason that here the illegally registered automobile was left not on a public way but on a private parking lot, and that our registration statutes, as construed in Santa Maria v. Trotto, 297 Mass. 442, 445, 446, 9 N.E.2d 540, 111 A.L.R. 1253, do not forbid this. The defendants further argue that if, nevertheless, Malloy v. Newman, supra, should be held to be applicable it ought to be overruled.

The plaintiff on the other hand contends that this case is on all fours with the Malloy case because there was evidence that the automobile at the time it was stolen was parked on the street. There was some evidence on which to base this contention. One Hurd, who was riding in the automobile at the time of the accident, testified that at about 3:30 on the afternoon of the day of the accident (which was prior to the accident) he and his wife, together with Burnash and one O'Brien, drove to Harrison Avenue in a taxicab, that they got out at Rose Street, that ‘there was another car there’ (referring to the automobile which was involved in the accident), that O'Brien had the keys to it, and that they all got in and drove off. If these facts were found the case is not essentially different from Malloy v. Newman, supra, and if that case is to be followed the judge erred in entering verdicts for the defendants. In the Malloy case the defendant left his unregistered automobile on a public way in Allston, with the doors unlocked and the key in the ignition switch. The defendant knew that there were many thefts of automobiles and that it was dangerous to leave an automobile unlocked and unguarded. Shortly after the automobile was parked it was stolen, and about two hours later the thief, while driving the automobile in Charlestown in a reckless manner, ran into and killed the plaintiff's intestate, a police officer. It was held that the act of the defendant in permitting his unregistered automobile to remain on a public way was evidence of negligence, and (two justices dissenting) that it could have been found that this negligence was the proximate cause of the death of the plaintiff's intestate.

The Malloy case did not purport to overrule the case of Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778, decided fourteen years earlier, but attempted to distinguish it. In that case an employee of the owner of an automobile left it in the street unlocked, with the key in the lock, and with the ‘ratchet brake’ not fully set. While so left the automobile was misappropriated by a thief who, while driving it in a negligent manner, injured one plaintiff and killed the intestate of the other plaintiff. This court, while apparently conceding that negligence of the defendant could be found from the manner in which its automobile had been left, held that the larceny of the automobile and its use by the thief were intervening independent acts which the defendant was not bound to anticipate and to guard against, and that the causal connection between the defendant's negligence and the subsequent injuries was broken by the larceny of the automobile and its use by the thief.

In Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330, which was decided by a unanimous court four years after the Malloy case, the Slater case was followed. There the defendant, who lived in Boston, parked his automobile partly in his driveway and partly on the sidewalk. It was left unattended with a window open and with the key in the ignition switch. Subsequently it was stolen by two boys, and while it was being negligently driven by a companion of one of them the plaintiff's intestate was knocked down and killed. It was held that although the defendant violated not only a city ordinance forbidding automobiles to be parked on the sidewalk but also G.L.(Ter.Ed.) c. 90, § 13, which prohibits one having control or charge of a motor vehicle from allowing ‘such vehicle to stand in any way and remain unattended without first locking or making it fast,’ and these violations were evidence of negligence on the part of the defendant, such negligence was not the proximate cause of the death of the plaintiff's intestate. The court rested its decision squarely on the authority of the Slater case which, it said, was not overruled by the Malloy case. In its opinion the court observed, ‘The plaintiff's contentions go far toward making the defendant an insurer as to the consequences of every accident in which his automobile might become involved while operated by the original thieves or their successors in possession. This is a course upon which, even if it were open, we decline to embark’ 318 Mass. at page 362, 61 N.E.2d at page 332. The Slater and Sullivan cases were cited with approval in Pochi v. Brett, 319 Mass. 197, 204, 65 N.E.2d 195, and in Ouellette v. Bethlehem-Hingham Shipyard Agency, 321 Mass. 390, 393, 73 N.E.2d 592.

Thus under our decisions the situation seems to be this: If one leaves his automobile on a public way ‘unattended without first locking or making it fast’ in violation of G.L.(Ter.Ed.) c. 90, § 13, and a thief steals it and negligently injures a person, the injured person cannot recover because the owner's negligence as matter of law is not considered to be the proximate cause of the injury. Such in effect is the holding in the Slater and Sullivan cases. Yet...