Gower v. Lamb

• Decision Date: 18 October 1955
• Docket Number: No. 29234,29234
• Citation: 282 S.W.2d 867
• Parties: Norma GOWER (Plaintiff), Appellant, v. Garth V. LAMB (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 867

282 S.W.2d 867

Norma GOWER (Plaintiff), Appellant, v. Garth V. LAMB (Defendant), Respondent.

No. 29234.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1955.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 10, 1955.

Louis S. Czech, St. Louis, for appellant.

Fred B. Whalen, Warren Grauel, St. Louis, for respondent.

FRANKLIN FERRISS, Special Judge.

The trial court sustained defendant's motion for judgment on an agreed stipulation of facts, and plaintiff appealed. The parties apparently regarded the hearing on defendant's motion as the trial of the case, as plaintiff's first point on appeal refers to the case as 'tried pursuant to Revised Statutes of Missouri, 1949, Section 510.310 [V.A.M.S.],' which section deals with procedure in cases tried upon facts without a jury. Plaintiff, however, filed no after-trial motion, and appellate review is therefore limited in accordance with Supreme Court Rule 3.23. Under this rule, one of the questions preserved for appellate review is the sufficiency of the petition to state a claim, which question we shall consider first.

The entire text of the petition is as follows:

'1. Comes now the plaintiff and for her cause of action states that she is a resident of the City of St. Louis, State of Missouri, and states that on or about the first day of January, 1954 at approximately 7:45 A. M. her automobile was properly parked at or near 3207 Olive Street, in the City of St. Louis, State of Missouri, Olive Street being an open, public and much traveled street and highway in the City of St. Louis, State of Missouri.

'2. Plaintiff further states that Garth V. Lamb is a resident of the City of St. Louis, State of Missouri, and that while her automobile was properly parked at the place and time aforementioned, the defendant, Garth V. Lamb, stopped his automobile at or near 3225 Olive Street, and while so parked on Olive Street, an open, public and much traveled street and highway in the City of St. Louis, State of Missouri, he, in violation of the Statutes of the State of Missouri, Section 304.150 Missouri Revised Statutes, 1949, left his automobile while stopped and so unattended, had left his ignition keys in the ignition and left said ignition unlocked and failed to cut off the electric current in violation of this statute which reads as follows: 'No person shall leave a motor vehicle unattended on the highway without first stopping the motor and cutting off the electric current, and no person shall leave the motor vehicle, except a commercial motor vehicle, unattended on the highway of any city having a population of more than seventy-five thousand unless the mechanism, starting device or ignition of such motor vehicle shall be locked. The failure to lock such motor vehicle shall not mitigate the offense of stealing the same, nor shall such failure be used to defeat a recovery in any civil action for the theft of such motor vehicle, or the insurance thereon, or have any other bearing in any civil action.'

'3. Plaintiff further states that as a direct and proximate cause [sic] of the violation of the aforesaid Statute by the defendant the automobile was stolen by person or persons unknown and while in the process of this theft the person or persons ran into and collided with the plaintiff's parked automobile damaging same.

'4. Plaintiff further states that as a direct and proximate cause [sic] of the negligence and violation of the aforementioned Statute by the defendant, Garth V. Lamb, the plaintiff sustained damage to her automobile in the amount of Seven Hundred Fifty Dollars and No Cents ($750.00).

'Wherefore, plaintiff prays judgment against the defendant in the sum of Seven Hundred Fifty Dollars and No Cents ($750.00) and costs herein expended.'

The Missouri Statute quoted in the foregoing petition is similar to statutes that have been adopted in a number of states. However, our statute includes one exclusionary sentence at the end thereof which is distinctly unusual, viz., 'The failure to lock such motor vehicle shall not mitigate the offense of stealing the same, nor shall such failure be used to defeat a recovery in any civil action for the theft of such motor vehicle, or the insurance thereon, or have any other bearing in any civil action.' (Emphasis ours.)

In actions brought elsewhere on the theory that a violation of similar statutes constituted both negligence per se and at least submissible evidence of a proximate causal relationship between the violation of the statute and the plaintiff's damage, three jurisdictions have refused to permit plaintiffs to go to the jury, the common reasoning being that the chain of causation was interrupted by the unusual and unlawful act of the thief in stealing defendant's car. Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560; Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272; Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395.

On the other hand, in Illinois the Supreme Court has held that it is for the jury to say whether or not the violation of the statute was the proximate cause of the plaintiff's damage. Ney v. Yellow Cab Company, 2 Ill.2d 74, 117 N.E.2d 74. And in Ross v. Hartmann, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, it was held that the statute was intended to promote the safety of the public and that as a matter of law, a violation of the statute constituted negligence and the proximate cause of plaintiff's damages.

None of the statutes involved in the foregoing cases contained the exclusionary sentence to be found in the Missouri Statute; and in view of the construction we give to that exclusionary language, none of these cases is controlling or even in point. When the Missouri legislators used the words, '* * * or have any other bearing in any civil action,' they used very comprehensive language. It is hard to conceive how any more comprehensive language could have been employed. The clear intent was that a violation of the statute in and of itself should not affect civil liability, which would continue to be determined as though the statute had never been enacted. It is the court's duty to construe a statute according to the clear intent of the legislators. It follows that in a civil action the statute in question is irrelevant to any issue, and that violation of the statute in and of itself is no basis for civil liability. The Supreme Court of California has given a similar construction to a municipal ordinance embodying the same exclusionary language as Section 304.150, RSMo 1949, V.A.M.S. Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23[1, 2].

It is apparent from a reading of the instant petition that in seeking to recover from defendant, plaintiff has relied chiefly on the theory that defendant violated Section 304.150, RSMo 1949, V.A.M.S., and that such violation constituted negligence per se. This theory is untenable because of the exclusionary clause contained in the Missouri Statute.

Plaintiff has also alleged in her petition that her damages were the result of negligence by the defendant. This allegation is not a conclusion, but an ultimate fact, which may be pleaded as such. Maybach v. Falstaff Brewing Corporation, 359 Mo. 446, 222 S.W.2d 87, loc. cit. 92; Cushulas v. Schroeder & Tremayne, 225 Mo.App. 567, 22 S.W.2d 872, loc. cit. 874. We, therefore, feel compelled to regard the petition as charging common-law negligence as well as statutory negligence, and to consider the sufficiency of the agreed stipulation of facts to support the judgment for defendant on the theory of a breach of a common-law duty. This question is also preserved for appellate review under Supreme Court Rule 3.23, 42 V.A.M.S., and was argued by both appellant and respondent.

The stipulated facts unquestionably support all the allegations of the petition except the final allegation that the damages to plaintiff's automobile were proximately caused by the defendant's negligence. On the issue of actionable negligence, the stipulated facts contain the following relevant information: Defendant was driving to work in his private pleasure car at approximately 7:00 A. M. on January 1, 1954, when he was suddenly seized with a necessity of immediately urinating because of a long-standing kidney ailment. At that hour, on January 1, 1954, no rest rooms were open in the vicinity; and so defendant parked his car at the north curb of Olive Street, a main thoroughfare in St. Louis, turned off his motor, and in his hurry to relieve himself of pain by urinating, neglected to remove the ignition keys from the ignition of his automobile. He went into...