Justus v. Wood

• Decision Date: 26 May 1961
• Parties: , 209 Tenn. 55 James H. JUSTUS, Bertha Justus and Judy Ann Justus by next friend, etc., v. William WOOD.
• Court: Tennessee Supreme Court

Page 332

348 S.W.2d 332

13 McCanless 55, 209 Tenn. 55

James H. JUSTUS, Bertha Justus and Judy Ann Justus by next

friend, etc., v. William WOOD.

Supreme Court of Tennessee.

May 26, 1961.

Rehearing Denied July 26, 1961.

Thomas Dossett, Wilson, Worley & Gamble, Kingsport, for plaintiffs in error.

Penn, Hunter, Smith & Davis, Kingsport, for defendant in error.

TOMLINSON, Justice.

The Trial Court sustained the demurrer in each of the three cases wherein suit for damages was sought against William Wood. Each of the plaintiffs has appealed.

The declarations are the same in each case. In so far as pertinent to the decision of the question presented, it avers that while the three plaintiffs had stopped their automobile at a street intersection in obedience to the traffic light it was violently struck from the rear by an automobile owned by defendant, Wood, while being driven by a man named Joe Lane.

Wood had left the automobile parked on the side of a busy highway unattended 'without locking the ignition but leaving the keys therein'. While in that place and status the car was stolen by this man Lane about 5:00 P.M. Another car had been previously stolen in that locality. At 9:00 P.M. Lane, 'driving the car while intoxicated, in a grossly wanton and negligent manner at speeds up to approximately 100 miles per hour, while attempting to elude a Tennessee Highway Patrolman then pursuing him', rammed the automobile into the back of the standing car of plaintiffs. It should be said here that the patrolmen pursuing Lane were not aware that he was driving a stolen car. That fact had not at that time been reported to the officers.

The demurrer which the Court sustained averred that the declaration shows that 'the negligence of Joe Lane, the thief, was the efficient, intervening, proximate cause of the plaintiffs' injuries and/or damages'.

Whether the negligence of the owner of the automobile in leaving the car unlocked with the key in the ignition renders the owner of the car liable for injuries resulting from subsequent negligence of the thief is the subject of a quite extensive annotation in 51 A.L.R.2d 633 et seq. The annotations show a very wide difference of opinion by the various Courts of last resort. The majority of these opinions are unquestionably to the effect that the owner of the car is not liable for the damages caused by the intervening negligence of the thief. It should be noted, however, that in many of these cases no statute was involved, in so far as the annotations show.

In the case of Morris v. Bolling, 31 Tenn.App. 577, 583, 218 S.W.2d 754, 757, decided by the Eastern Section of the Court of Appeals in 1948, with certiorari denied by this Court in 1949, Judge Howard, in a well prepared opinion for the Court, in a case involving to some extent the question here made this observation:

'We [are] unable to find any cases on the precise question presented here. Courts in other states have decided that where an owner or his agent leaves an automobile unattended with the key in the ignition in violation of a statute or ordinance and a thief drives the automobile away and negligently injures plaintiff or causes property damage, the defendant's violation of the statute or ordinance has been held to be negligence and constituted 'proximate cause' so as to render defendant liable in damages therefor.' (Citing cases.)

There was no statute involved, but there was an ordinance in the town where this occurred which forbade the leaving of the key in the ignition. It was the conclusion of the Court in that case that 'whether the defendants' agent under the circumstances might or ought to have foreseen the result of his acts and whether said acts contributed to the damages plaintiff sustained were jury questions and not issues to be determined by the Court as matters of law, they being questions about which men of reasonable minds would differ.' (Citing decisions of our Court.)

The question was presented to the West Tennessee Court of Appeals in Teague v. Pritchard, 38 Tenn.App. 686, 279 S.W.2d 706, 709. In a very scholarly opinion, Judge Carney, the writer of the opinion for the Court, reviewed in considerable detail the question involved and concluded that the owner of the car was not liable. In so concluding he made this statement:

'It has arisen a number of times in other states and the cases all seem to hold that the negligence of the thief in operating a stolen car is the efficient intervening proximate cause of the plaintiff's injury, even though the owner was originally negligent in leaving the car parked in a position where it could easily be stolen.' (Citing cases.)

It was held that a directed verdict for defendant was proper. That case was decided in 1954. Certiorari was denied by this Court in July of that year. No statute was involved.

An interesting comment, and one which makes considerable sense, is made in Volume 24, No. 3, Tennessee Law Review, page 397. That comment is:

'It would be generally agreed that the thief's action placed the accident outside of the risk created by the defendant in leaving his car unlocked, if in fact the conduct of the thief was unforeseeable and extraordinary. It would seem in this connection that much depends on whether the injury was sustained during the course of the flight of the thief, or after he had made his getaway. This point was not considered in the principal case, but may well be a determining factor. If the operator of a motor vehicle is negligent in making his vehicle easy to steal, then does not the owner likewise create a risk that the thief will be under fear of apprehension until the theft is consummated; that he will be excited and perhaps even panic-stricken due to the fear of capture; and that his state may well cause him to drive poorly and perhaps even recklessly until he is well away from the scene of the theft?'

It should here be repeated that this accident occurred four hours after Wood's car was stolen by Lane. But it does not appear whether he was in flight or well away from the scene of the theft. This would be a question of evidence should there be a trial of the case. In this connection, however, there is an annotation of the Minnesota case of Wannebo v. Gates, 227 Minn. 194, 34 N.W.2d 695; 51 A.L.R.2d 663, wherein the annotator makes this statement:

'The court further pointed out that although the parking of the car under the circumstances was admittedly negligent, and the theft might reasonably have been foreseen, nevertheless, the original actor should not be held liable for the tortious acts of a thief or his successor in possession of the car if such acts took place hours, days, weeks, or months after the flight from the scene of the crime had terminated.'

Following the 1954 decision of Teague v. Pritchard, supra, our Legislature in 1955 enacted Chapter 329. It is carried in the Code at § 59-863, T.C.A. There 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, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.'

A like statute was involved in the Illinois case of Ney v. Yellow Cab Company, 2 Ill.2d 74, 117 N.E.2d 74, 77, 51 A.L.R.2d 624. That Court first rhetorically asked the question as to what was the purpose of the Legislature in 'prohibiting the leaving of an unattended motor vehicle with the key in the ignition?' The answer it made is obvious that the purpose was not to punish the thief because there are effective statutes for that. The purpose was 'rather its interest in public welfare for protection of life, limb and property by the prevention of recognized hazards'. It evidently considered one of those hazards to be the driving by the thief upon the highway an automobile recently stolen by him.

It is true that the violation of this statute by Wood did not render him liable unless that violation was a contributing cause of the collision which followed. That is, whether this intervening force of the negligent thief was 'without or within the range of reasonable anticipation and probability'.

Considering the nature of the acts and the circumstances surrounding the entire matter, it seems quite clear that reasonable minds might differ as to whether this intervening force of the negligent thief was within the range of reasonable anticipation of Wood. It, therefore, becomes, as this Court views it, a jury question under proper instructions of the Court. In Fairbanks Morse & Company et al. v. Gambill, 142 Tenn. 633, 642, 222 S.W. 5, 7, there appears the following:

'The general rule is that what is the proximate cause of an injury is a question for the jury; the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. But whether the question is one to be determined by the jury depends on the facts of each case. Thus where the facts of the particular case are controverted, and are of such a character that different minds might reasonably draw different conclusions therefrom, a question of facts is presented properly determinable by the jury.'

Under the title 'Thieves' with reference to stealing automobiles there appears in 51 A.L.R.2d 662, the following statement:

'* * * 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 Court is of the opinion that the circumstances surrounding the negligent act of Wood, including the nature of the locality in which the negligence occurred, and the other averments of this declaration are such that...