Loving v. Howard Lare, Inc.

• Decision Date: 01 December 1955
• Docket Number: No. 33,33
• Citation: 73 N.W.2d 290,344 Mich. 97
• Parties: Fred LOVING, Plaintiff and Appellee, v. HOWARD LARE, Inc., a Delaware corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 290

73 N.W.2d 290

344 Mich. 97

Fred LOVING, Plaintiff and Appellee, v. HOWARD LARE, Inc., a Delaware corporation, Defendant and Appellant.

No. 33.

Supreme Court of Michigan.

Dec. 1, 1955.

Lacey, Jones & Doelle, Detroit, for defendant and appellant.

Meyer W. Leib, Detroit, for plaintiff and appellee, Marvin W. Reider, Detroit, of counsel.

Before the Entire Bench.

BUTZEL, Justice.

On April 24, 1953, Fred Loving, plaintiff, left his 1953 Ford automobile for repairs at the garage of Howard Lare, Inc., a Delaware corporation, defendant. The garage evidently adjoined defendant's sales room and parts department. The following day defendant notified plaintiff that during the early hours of the morning defendant's premises had been broken into and plaintiff's automobile stolen. The car was finally recovered in a badly damaged condition in Chicago, Illinois. Plaintiff was put to travel and other expense incidental and in addition to having the car repaired. He brought suit in the court of common pleas for the city of Detroit where defendant prevailed. Plaintiff appealed to the circuit court which reversed the judgment of the lower court and awarded plaintiff a judgment of $793.36 plus interest and cost. Defendant appeals.

C.L.1948, § 256.541, Stat.Ann. § 9.1721, provides:

'Whenever any damage shall be done to any motor vehicle while in the possession or under the care, custody or control of the owner, his agent or servant, or the keeper of any public garage or other establishment where such vehicle shall have been accepted for hire or gain, proof of such damage shall be prima facie evidence that such damage was the result of the negligent act of such owner or keeper of the place where such vehicle was stored.'

A showing of a demand for and a failure to return the automobile constitutes a prima facie case both under this statute, General Exch. Ins. Corp. v. Service Parking Grounds, Inc., 254 Mich. 1, 235 N.W. 898, and the common law of bailments. Tatro v. Baker-Fisk-Hugill Co., 215 Mich. 623, 184 N.W. 449; Smith v. Bailey, 195 Mich. 105, 161 N.W. 822. It then becomes defendant's duty to establish its freedom from negligence, or, if there be any, that it was not the proximate cause of plaintiff's damages.

The facts, as they appear in the settled record on appeal, are not in dispute. The car was left in the garage over night with the keys in the ignition switch. The thief broke a small glass pane inset in the garage door, reached through and removed the bar which held the door closed from the inside, and drove the car out of the opened door. Apparently aware of the fact that automobiles are easily movable as sell as the danger of possible theft, defendant employed a night watchman but only until 4:30 a. m. On the morning in question the watchman left at approximately 4:30 a. m., when at that time of the year it was still dark, and the premises remained unguarded until 6:15 a. m. when another employee of defendant reported for work. The automobile was stolen during that unattended interval.

The circuit court, in reversing the court of common pleas, found for plaintiff on the ground that defendant was negligent in leaving the key in the ignition switch, thereby distinguishing Minneapolis Fire & Marine Ins. Co. v. Porter, 328 Mich. 11, 43 N.W.2d 46. In that case we reversed the lower court and held the failure of the garage owner to report the theft of plaintiff's automobile not to be the proximate cause of plaintiff's loss. We did affirm, however, the finding of the trial court that the door was properly locked and adequately protected the cars inside and therefore that there was no negligence on the part of the garage owner in that particular. The record, briefs and opinion in that case are silent as to the primary act of negligence herein involved, leaving the key in the ignition switch.

In General Exch. Ins. Corp. v. Service Parking Grounds, Inc., supra, we considered, inter alia, the fact that plaintiff's car was unlocked as evidence of defendant's negligence. We held the owner of an open parking lot liable for the theft of plaintiff's car where the cars were left unlocked in a lot which was inadequately attended and equipped, in view of the neighborhood. We said [254 Mich. 1, 235 N.W. 900]:

'Plaintiff might have had a better opportunity of protecting his car from theft had he kept it locked at the curb of a street in the vicinity. At least there would have been more difficulty in stealing a car that was locked and not properly guarded.'

Courts have considered the leaving of keys in the ignition switch as evidence of negligence. See Farrell-Calhoun Co., for Use of Automobile Ins. Co. of Hartford, Conn., Inc., v. Union Chevrolet Co., 21 Tenn.App. 554, 113 S.W.2d 419; Newton Chevrolet Co. v. Canle, 31 Tenn.App. 67, 212 S.W. 392; Widawski v. Lupowitz, 164 Pa.Super. 298, 63 A.2d 106; but see Swain v. Twin City Motor Co., Inc., 207 N.C. 755, 178 S.E. 560. Defendant relies upon Howard v. Swagart, 82 U.S.App.D.C. 147, 161 F.2d 651, where it was stated that leaving the key in the ignition in a parking lot garage did not, in that jurisdiction, constitute negligence. Aside from the fact that we may disagree with the conclusion, it is to be noted that the court there took notice of the custom and practice in the area of leaving the keys in the switch. See also Carty v. Lemmon Auto Co., 72 S.D. 559, 37 N.W.2d 454. While pertinent, such evidence is not...