Midkiff v. Watkins

• Decision Date: 16 May 1951
• Docket Number: No. 3396,3396
• Citation: 52 So.2d 573
• Parties: MIDKIFF et ux. v. WATKINS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 573

52 So.2d 573

MIDKIFF et ux. v. WATKINS et al.

No. 3396.

Court of Appeal of Louisiana, First Circuit.

May 16, 1951.

Ralph H. Agate, Jr., Welsh, for appellants.

King, Anderson & Swift and Plauche & Plauche, all of Lake Charles, for appellees.

LOTTINGER, Judge.

This is a suit filed by Harry Floyd Midkiff and his wife, Bertha Mae Midkiff, against J. L. Watkins, Mrs. J. L. Watkins, and their daughter, Mrs. Hugh Doiron, for damages. Defendants filed exceptions of no cause or right of action, which were sustained by the lower court. Plaintiffs have taken this appeal. The facts herein are not contested, the only issues presented are questions of law.

The facts show that on Sunday morning, March 12, 1950, Mrs. Watkins was driven by her daughter, Mrs. Doiron, to the Methodist Church in Welsh, Louisiana, in a car belonging to the community existing between Mr. and Mrs. Watkins. The car was properly parked near the church, and was left unattended with the motor turned off, but with the keys in the ignition switch. After some period of time, while Mrs. Watkins, and her daughter were still in church, Archie Wilson, an alleged incompetent and mentally deficient negro seventeen years of age, stole the Watkins car from its position near the church and drove away in it at a rapid rate of speed. After traveling a short distance, Wilson, in attempting to negotiate a corner, ran into a car belonging to plaintiffs, killing Henry Floyd Midkiff, Jr., the minor son of plaintiffs, and damaging plaintiffs' property. There was no negligence whatsoever on the part of plaintiffs nor their deceased son.

Plaintiffs allege that an automobile is, per se, a dangerous instrumentality. They further claim that the act of Mrs. Doiron, in leaving the key in the ignition switch was such an act of negligence as to invite theft of the automobile; that the resulting theft and damages were foreseeable; and that the said act of negligence was the proximate cause of the damages to plaintiffs' property and the death of their child. Plaintiffs further contend that an automobile is an attractive nuisance and that such fact, coupled with the mental deficiency of Wilson, would render defendants liable under the doctrine of attractive nuisance. Plaintiffs trace the negligence of Mrs. Doiron to Mrs. Watkins under the doctrine of concurring negligence. The negligence is further traced to Mr. Watkins under the principal-agent relationship, plaintiffs alleging that Mrs. Doiron and Mrs. Watkins were agents of the community existing between Mr. and Mrs. Watkins, of which community Mr. Watkins was head and master. From judgment sustaining the exceptions in the lower court, the plaintiffs have executed this appeal.

In support of their contention that the act of Mrs. Doiron in leaving the keys in the ignition switch was negligence which was the proximate cause of the resulting damages, plaintiffs have relied principally upon Castay v. Katz & Besthoff, Ltd., La.App., 148 So. 76; Maggiore v. Laundry & Dry Cleaning Service, Inc., La. App., 150 So. 394; Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537; Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370; and Weiss et al. v. King et al., La.App., 151 So. 681.

Castay v. Katz & Besthoff, Ltd., supra, involved a suit for damages for physical injuries resulting from an accident between two trucks. The defendant's truck was stopped with the motor running while the driver crossed the street to deliver a package of medicine to a customer of defendant. Upon returning from making said delivery, defendant's driver saw the truck speedily moving down the street. Defendant's driver claimed that he heard the gears shift in the truck, however, he did not see anyone driving the truck. After traveling some five city blocks, defendant's truck ran into plaintiff's truck causing damages. There was some question as to whether the defendant's truck had been stolen, or whether it had driven off on its own accord because of mechanical defect. The court, considering the shifting of the gears and the distance it proceeded along the street, concluded that the truck had been stolen. The Orleans Court of Appeal, in refusing recovery for plaintiff, said: 'The theft of defendant's motortruck and the negligent injury of plaintiff by the thief was, we believe, a consequence too remote to have been reasonably within the contemplation of defendant's driver when leaving the parked truck with the motor running, and the intervening act of the thief was sufficient to break the sequance of defendant's negligence so as to establish the intervening cause as the efficient one proximately causing the accident.'

In Maggiore v. Laundry & Dry Cleaning Service Inc., supra, the suit was for damages for personal injuries to plaintiff. In that case, the driver had improperly parked an electric truck in a driveway, and left the truck with the electric key or plug engaged. There were city ordinances prohibiting parking in a driveway, and leaving an electric vehicle parked without first locking the controller switch and withdrawing the key. Plaintiff was unable to back his car from the opposite driveway because the street was narrow and the electric truck served as an obstruction. He therefore summoned a friend to aid him in pushing the electric truck backward so as to clear the path. Plaintiff stationed himself in front of the vehicle and pushed backward. After pushing the truck a few inches, its motor started and the truck began to operate forward. Plaintiff was unable to get out of the way, and the truck crushed him against an automobile and then against a pole, causing the injuries upon which the suit was based. The court held the proximate cause of the injuries to be the improper parking of the electric truck, and the negligence of the driver in not removing the key or plug, both of which acts were in violation of ordinances. There was no negligence, or intervening cause, found on the part of the plaintiff, nor his friend. The Orleans Court of Appeal, in deciding this said case, said:

'There can be no doubt that the final injury was traceable to the initial fault because it cannot be denied that, had the key been withdrawn, as the ordinance required, there would have been no injury. But that fact alone does not render defendant liable because, as the Supreme Court of the United States said in Atchison, Topeka & S. F. Ry. Co. v. Calhoun, 213 U.S. page 1, 29 S.Ct. 321, 323, 53 L.Ed. 671: 'Where, in the sequence of events between the original default and the final mischief an entirely independent and unrelated cause intervenes, and is of itself sufficient to stand as the cause of the mischief, the second cause is ordinarily regarded as the proximate cause and the other as the remote cause.'

'If the act of Hirstius and Maggiore in pushing the car was such as no reasonably prudent person should have anticipated or expected, then it may well be said that this act would be termed 'independent of' and 'unrelated to' the primary act of defendant's employee, and would, in law, be considered the proximate cause, and the failure to withdraw the key only as the remote cause. * * *

'* * * it is not to be expected or anticipated that one person will attempt to start the engine of a car of another, but we think it is to be anticipated and expected that, if an automobile of another person is left parked in such a position as to block another's driveway, the person whose driveway is blocked will attempt to push the car a short distance to move it out of the way.'

The cases of Ostergard v. Frisch, supra, and Ross v. Hartman, supra, were both decided by out of state courts. In each of said cases, the owner of a motor vehicle was held liable for damages resulting when an unauthorized person stole said vehicles and, in driving off, caused damage. In each of said cases there were laws prohibiting a person from leaving an unlocked vehicle in a public place, and the defendants had violated said laws. In these cases the courts held defendants negligent because they had violated a law, and held such negligence a proximate cause of the damages caused by the thieves.

In each of the cases discussed above holding the owner of the vehicle liable, negligence of the owner was founded on the violation of a law. In Castay v. Katz & Besthoff, the sole above described case in which the owner of the vehicle, or his agent, did not violate an ordinance, or law, the owner of the vehicle was held free from liability.

In the case of Weiss et al. v. King et al., supra, this was a case decided by our learned brothers of the Second Circuit, wherein the defendant King, an employee of the City of Alexandria, while on the business of the City, parked his car parallel with the curb, facing west on the south side of Murray Street, so near its intersection with Second Street, that there was not sufficient room for another car to park properly between his car and a depressed drain leading into a sewer at the corner. While King was in the City Hall Building, B. J. Carbo, desiring to stop for only a few minutes crowded his car into the space between King's car and the drain so that its front was almost against that of King's car, with its back out from the curb in such a position that the car pointed backwards diagonally across the street intersection. The court in that instance found that Carbo attempted to cut off the ignition and lock the switch, however, he failed to push in the spring lock far enough to click and withdrew the key without locking the switch. The court further found that the Carbo car was left in reverse gear. The court in commenting on this state of facts said, 'It was like a gun loaded and cocked, ready to go off.' King came from the City Hall in response to a call in line of duty and found his car was jammed in, that it was impossible to get out without moving the Carbo car to some degree. He accordingly started his car forward intending to push the...