Mezyk v. National Repossessions, Inc.

• Decision Date: 22 September 1965
• Parties: Dolores MEZYK, Appellant, v. NATIONAL REPOSSESSIONS, INC., an Oregon corporation, Respondent. Rose Marie MEZYK, Appellant, v. NATIONAL PROPOSSESSIONS, INC., an Oregon corporation, Respondent. Joseph MEZYK, Appellant, v. NATIONAL REPOSSESSIONS, INC., an Oregon corporation, Respondent.
• Court: Oregon Supreme Court

Page 840

405 P.2d 840

241 Or. 333

Dolores MEZYK, Appellant, v. NATIONAL REPOSSESSIONS, INC., an Oregon corporation, Respondent.

Rose Marie MEZYK, Appellant, v. NATIONAL PROPOSSESSIONS, INC., an Oregon corporation, Respondent.

Joseph MEZYK, Appellant, v. NATIONAL REPOSSESSIONS, INC., an Oregon corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 6, 1964.

Reargued April 5, 1965.

Decided Sept. 22, 1965.

Bernard, Jolles, Portland, argued the cause for appellants. With him on the brief were Franklin, Olsen, Bennett & Des Brisay, Portland.

David C. Landis, Portland, argued the cause for respondent. With him on the brief were Maguire, Shields, Morrison, Bailey & Kester and Howard K. Beebe, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, ^* O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

Recovery for personal injuries is sought against defendant because it left the keys in the ignition of its car, the car was stolen and the thief recklessly drove into plaintiff. ¹ Defendant's demurrer was sustained. Plaintiff alleged:

'On or about March 5, 1963, the defendant acting through its agents and employees negligently parked a certain motor vehicle unattended on its used car lot without locking the vehicle or removing the ignition key therefrom. While said car was so parked, a person named Larry W. Stebbins, without authority, consent or right to do so drove off in said vehicle and while driving from said car lot on N. E. Weidler near its intersection with N. E. 11th at a high and unreasonable rate of speed, collided with a certain vehicle being driven in a northerly direction on said N. E. 11th Avenue in which the plaintiff was a passenger, resulting in personal injuries to the plaintiff as hereinafter more particularly set forth.'

There are many decisions from other jurisdictions on this general question. 51 A.L.R.2d 633 (1957), 91 A.L.R.2d 1326 (1963). These decisions vary in their results, partially depending upon the particular facts and the presence or absence of applicable statutes or ordinances, but also depending upon the philosophy of the particular court. There is no clear-cut majority; however, a plurality of the decisions holds for defendant.

The problem presented involves some of those issues which perplexed us in Dewey v. A. F. Klaveness & Co., 233 Or. 515, 379 P.2d 560 (1963), and Hills v. McGillvrey, Or., 402 P.2d 722 (1965),--negligence and duty. The issues will be discussed in the nomenclature used in Hills v. McGillvrey, supra, i. e., negligence and duty.

The first question to answer is whether defendant owed plaintiff a duty to remove the keys from the ignition. A demurrer to plaintiff's complaint was sustained therefore, whether or not defendant owed plaintiff a duty must be determined upon the allegations of the complaint and any facts which might conceivably be adduced as proof of such allegations.

Prosser states that duty is 'an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' Prosser, Law of Torts (3d ed.), 333. Leon Green holds the same view and writes in detail about some of these considerations such as 'the administrative factor,' 'the economic factor,' etc. Green, Judge and Jury (1930), 76-77.

The issue in part is analogous to that in cases in which the defendant owner entrusts his car to a driver and the driver negligently injures a third person. The law in Oregon is that whether or not the entrusting owner is liable to the injured party depends upon whether or not the entrusting owner was negligent, i. e., knew or should have known that the driver to whom he entrusted his car was so incompetent as to be likely to drive negligently. Guedon v. Rooney, 160 Or. 621, 635, 87 P.2d 209, 120 A.L.R. 1298 (1939). By so deciding we have in effect held that a car owner owes a duty to third persons injured by the negligence of the driver of the car, i. e., an owner may be liable to third persons injured by the owner's car. Whether or not the owner will be liable depends upon whether or not the owner was negligent. If the owner should not have known that there was a likelihood of harm created by such entrustment, the owner is not negligent. If the owner should have known he created a likelihood of harm by entrusting his car to a driver, he is negligent.

Similarly, if an owner is negligent by creating a likelihood of harm by leaving his keys in the car, rather than by entrusting his car to a driver, we now hold that such an owner owes a duty to third persons injured by a negligent thief. This liability exists only if the owner negligently leaves the keys in his car. $The next issue, therefore, that must be resolved is, did the defendant in this case negligently leave the keys in its car? We repeat, this was decided upon a demurrer, therefore, we must decide it upon the basis of any facts that conceivably could be introduced under the allegations of negligence in the complaint.

The complaint alleges:

'* * * defendant negligently parked a certain motor vehicle unattended on its used car lot without locking the vehicle or removing the ignition key therefrom. * * *'

We have repeatedly held that if a party alleges that certain acts were done negligently, proof of any facts tending to show that the acts were negligent is admissible. Kennedy v. Hawkins, 54 Or. 164, 168, 102 P. 733, 25 L.R.A.,N.S., 606 (1909); Sylvis v. Hays, 138 Or. 418, 422-425, 6 P.2d 1098 (1932). For example, in Harper v. Oregon Electric Ry. Co., 111 Or. 71, 224 P. 1096 (1924), the plaintiff was struck by the defendant's railroad train while on a spur track. The plaintiff alleged that the defendant was negligent in failing to warn the plaintiff of its movement. Evidence that the plaintiff was the only person about the premises and contrary evidence that the public frequented the area was held admissible as proof that the defendant was or was not negligent in failing to warn.

The defendant counters with the proposition that when a demurrer is sustained to a complaint and the pleader chooses not to amend, the pleading is construed most strongly against the pleader; it is presumed that the pleader has stated his case as strongly as the facts will permit. Medford v. Pac. Nat'l Fire Ins. Co., 189 Or. 617, 628, 219 P.2d 142, 222 P.2d 407, 16 A.L.R.2d 1181 (1950). This is the rule when a complaint is ambiguous and susceptible of two constructions, one of which would not state a cause of action. A complaint which states that an act was done negligently is not ambiguous. It may be subject to a motion to make more definite and certain but when where is a duty to act with due care and the complaint alleges that an act was done negligently, the complaint, when tested by demur...