Kiste v. Red Cab, Inc.

• Citation: 106 N.E.2d 395,122 Ind.App. 587
• Decision Date: 05 June 1952
• Docket Number: No. 18258,18258
• Parties: KISTE v. RED CAB, Inc.
• Court: Court of Appeals of Indiana

Page 395

106 N.E.2d 395

122 Ind.App. 587

KISTE v. RED CAB, Inc.

No. 18258.

Appellate Court of Indiana, in Banc.

June 5, 1952.

Wilson S. Daily, John H. Daily, Indianapolis, for appellant.

John K. Ruckelshaus, John C. O'Connor, Ruckelshaus, Reilly, Rhetts & O'Connor, Indianapolis, for appellee.

ACHOR, Chief Judge.

This is an action for damages allegedly resulting from a collision between appellant's automobile and a taxicab owned by appellee.

Appellant charged that prior to the collision, the appellee, through one of its drivers, left said taxicab standing unattended on a public street in the City of Indianapolis without first stopping the engine, turning off the ignition or removing the key; that while said taxicab was so standing a person or persons unknown took said taxicab, and later on the same night while driving the same in a negligent manner, collided with plaintiff's automobile.

The appellee demurred to plaintiff's complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained. Plaintiff refused to plead further and thereupon judgment was entered for the defendant. The error assigned is the sustaining of the demurrer.

The action is grounded upon § 47-2124, Burns' 1940 Repl., Acts of 1939, ch. 48, § 110, p. 289, of the Uniform Act Regulating Traffic on Highways, as follows: 'No persons 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.'

The legal proposition which the court is required to determine, is whether the owner of an automobile which was parked unattended on the street with the motor running, the ignition unlocked and the key in the switch, in violation of the above statute, is liable for injuries caused by a thief who steals and is driving said automobile in a negligent manner. Neither the Supreme nor Appellate Courts of this state have heretofore been called upon to construe the above statute as applicable to the facts before us.

Among the jurisdictions having statutes similar to our own, diametrically opposite results have been reached in the reported decisions. Perhaps the leading case in which recovery was allowed under similar circumstances is that of Ross v. Hartman, 1943, 78 U.S.App.D.C. 217, 218, 139 F.2d 14 158 A.L.R. 1370. Also the same result was reached in the case of Ostergard v. Frisch, 1948, 333 Ill.App. 359, 368, 77 N.E.2d 537.

However, a directly opposite result has been reached in the states of Massachusetts and Minnesota. Moreover, in a recent decision, the Appellate Court of Illinois, Third District, in the case of Cockrell v. Sullivan, 1951, 344 Ill.App. 620, 101 N.E.2d 878, upon reexamination of the legal principles involved in the light of later decisions in other jurisdictions, adopted the reasoning and conclusions of the dissenting opinion in the Ostergard case, supra, as previously decided by the Appellate Court of the First District of that state.

Because of the direct conflict in these cases, extensive consideration is given in this opinion to the reasoning of the respective courts. In the case of Ross v. Hartman, supra, 78 U.S.App.D.C. at page 218, 139 F.2d at page 15, 158 A.L.R. 1370, the court said:

'* * * The evident purpose of requiring motor vehicles to be locked is not to prevent theft for the sake of owners or the police, but to promote the safety of the public in the streets. An unlocked motor vehicle creates little more risk of theft than an unlocked bicycle, or for that matter an unlocked house, but it creates much more risk that meddling by children, thieves, or others will result in injuries to the public. The ordinance is intended to prevent such consequences. Since it is a safety measure, its violation was negligence. This negligence created the hazard and thereby brought about the harm which the ordinance was intended to prevent. It was therefore a legal or 'proximate' cause of the harm. * * *'

The same conclusion was reached by the Illinois Appellate Court, First District, in the case of Ostergard v. Frisch, supra. In that case the court stated, 333 Ill.App. at page 368, 77 N.E.2d at page 541:

'* * * There is imposed upon the owner of the car a duty to reasonably foresee the consequence of his negligence, that being one of the tests of proximate cause. He should not be permitted to say that he could not reasonably foresee that by leaving the key in the ignition, one might tamper with or steal the car and become reckless in its operation, causing damage. Certainly the provision of the statute was not to protect the owner of the car against theft but was a safety measure intended to protect the public. * * * He is required by all rules of common sense and reason to know that a thief, in his effort to escape from the scene of the theft, may have no greater regard for traffic lights or traffic regulations than he had for the criminal statute making it a felony to steal the car. He must foresee that the thief who steals his car will not be concerned, when fleeing from the scene of the theft, about the rule of care and diligence in driving the car, which a driver is required under the law to exercise.'

However, the Supreme Court of Massachusetts, after some vacillation, has, under recent decisions, denied liability under its statute where the intermeddler has been a thief. The most recent case in which liability was denied is Galbraith v. Levin, 1948, 323 Mass. 255, 81 N.E.2d 560, 562. In that case, even though the Massachusetts statute required 'locking (the vehicle) or making it fast,' nevertheless the court, notwithstanding the violation of this statutory duty, and the fact that the thief was 'in flight,' held that 'the conduct of the thief was an intervening cause which the defendants were not bound to anticipate and guard against.'

The above case is grounded upon the earlier cases of Slater v. T. C. Baker Co., 1927, 261 Mass. 424, 158 N.E. 778, and Sullivan v. Griffin, 1945, 318 Mass. 359, 361, 61 N.E.2d 330, 332. In the latter case the court stated:

'* * * Nothing is added by the defendant's knowledge that thieves might take the automobile if left unlocked. Theft of the automobile was undoubtedly a consequence intended to be prevented by the statute if not by the traffic regulation. But it is quite another thing to say that injuries sustained through the operation of the automobile by thieves in the circumstances here disclosed were consequences intended to be prevented. * * *'

Likewise, in Minnesota, the court in the case of Wannebo v. Gates, 1948, 227 Minn. 194, 201, 34 N.W.2d 695, 699, denied liability, although the court did state that: '* * * We are, of course, not suggesting what our holding might be if the accident had happened through the negligence of the thief while still in flight from the scene of his theft. * * *' However, within two years the court, when required to rule on the point, removed the 'in flight' issue as a consideration and denied liability.

In the later case of Anderson v. Theisen, 1950, 231 Minn. 369, 371, 43 N.W.2d 272, 273, the court said:

'* * * Plaintiff contends that the theft and flight were foreseeable and that, in addition, it could be anticipated that nervousness or fear of apprehension on the part of the thieves would cause them to drive carelessly and negligently. * * * It is one thing to say that the ordinance is designed to prevent thefts and quite another to say that it is aimed at preventing negligent driving from the scene of the theft. * * * But for the purpose of this case only, assuming that the violation of the ordinance was negligence, we are of the opinion that the negligent driving of the thieves was the proximate cause of decedent's death and that the negligence of defendant, if any, was too remote in the eyes of the law to be regarded as connected as cause therewith.'

Significantly, the Appellate Court of Illinois, Third District, in the recent case of Cockrell v. Sullivan, supra, not only cited and quoted from the above cases of Galbraith v. Levin, supra, and Anderson v. Theisen, supra, with approval but specifically repudiated the reasoning of Ostergard v. Frisch, supra, and approved the dissenting opinion of that case, in which dissenting opinion the court stated, 333 Ill.App. at page 372, 77 N.E.2d at page 542:

'* * * This is a traffic regulation, not an anti-theft measure, and is designed to reduce the likelihood of parked cars being set in motion without the intervention of a human agency, or by children or other intermeddlers. The precautions required by the statute are those which in the absence of a statute the owner is required to take in the exercise of ordinary care when parking his car. They are reasonably effective in preventing the movement of the car from the place the owner had placed it. They are of little effect in reducing automobile thefts. The owner is not required to lock the doors or windows of the car, and the absence of the key in the ignition is only a momentary deterrent to the automobile thief working with the implements of his trade. * * *'

Furthermore, the court stated in the ...