Ostergard v. Frisch

• Decision Date: 16 February 1948
• Docket Number: Gen. No. 44160.
• Citation: 77 N.E.2d 537,333 Ill.App. 359
• Parties: OSTERGARD v. FRISCH.
• Court: United States Appellate Court of Illinois

333 Ill.App. 359

77 N.E.2d 537

OSTERGARD

v.FRISCH.

Gen. No. 44160.

Appellate Court of Illinois, First District, First Division.

Feb. 16, 1948.

Appeal from Municipal Court of Chicago; Leon Edelman, Judge.

Action by Sven Ostergard against Harry Frisch to recover for damage to plaintiff's automobile as result of collision with defendant's automobile. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Clarence S. Piggott, of Chicago, for appellant.

Robert C. Ransom, of Oak Park, for appellee.

FEINBERG, Justice.

Defendant appeals from a judgment of $173.34 in favor of plaintiff for damages to plaintiff's automobile. The case was tried without a jury.

The amount of the claim is small, but the principle of law involved is of far-reaching importance. The case was tried upon a stipulation of facts, which discloses that on March 18, 1946, about 10 o'clock in the forenoon, defendant drove his automobile to a place of business located at 2460 North Pulaski Road in Chicago, where he stopped his car and parked it. He left his automobile unlocked and the key in the ignition. After calling on his customer, he came out and found his automobile missing. It had been stolen, and the thief, while later driving it, collided with plaintiff's automobile on Belden Avenue in Chicago between the 3400 and 3500 block, where plaintiff's automobile was parked.

The sworn statement of defense filed to the claim of plaintiff admitted that on March 18, 1946, the defendant parked his car at the stated address, and when he returned for his car found it had been stolen and driven away by a thief; that said thief ‘then’ drove the defendant's said automobile over various streets in said City of Chicago unknown to the defendant; that said thief drove defendant's automobile along and upon West Belden Avenue between the blocks 3400 and 3500 in said City, and ‘then and there’ had a collision with defendant's automobile and the plaintiff's automobile.

We fix the place of the accident as approximately 6 1/2 city blocks from the place where the car was stolen, by taking judicial notice of the general ordinances of the City of Chicago, chap. 51, par. 48a, § 1, Ill.Rev.Stat.1947. It appears from the map made a part of the Chicago zoning ordinance and from the ordinance appearing in chap. 30, § 4 of the Municipal Code 1939, that North Pulaski Road is a north and south street 4000 west, while Beldon Avenue is an east and west street between 2300 and 2400 north. The block numbers included in the stipulation of facts and the map referred to establish the distance mentioned between the place of theft and the place of accident. The close proximity of the place of accident to the place of theft, and the fair inference to be drawn from the stipulation of facts together with the admission in the quoted portion of defendant's sworn statement of defense, convince us that the accident happened during the flight of the thief from the scene of the theft.

Defendant has not suggested or argued upon this appeal that the accident did not occur during the flight of the thief. His position here is based entirely upon the ground that the tortious act of the thief was the independent, intervening, direct and proximate cause of the accident and not the alleged violation of the statute; that the statute did not intend to make the owner of a car liable for the tortious act of a thief.

The right to recover is predicated upon the violation of § 92(a), par. 189(a), chap. 95 1/2, Ill.Rev.Stat.1947, the pertinent provision of which is: ‘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 removing the key, * * *.’

The precise question here presented has not heretofore been decided in this State so far as our search discloses, and no reported case in this State has been cited by counsel, except Moran v. Borden Co., 309 Ill.App. 391, 33 N.E.2d 166. We find a conflict of authority upon this question in the various jurisdictions, and in Massachusetts the decisions of the Supreme Court upon this question are, in our opinion, irreconcilable.

Moran v. Borden Co. involved a violation of this statute, but it did not involve the act of a thief driving off with the car. The injury resulted from tampering with the car by children, who had been loitering around the automobile and whom the driver of the car had seen and should have known were likely to meddle with his car. He left the car unattended in the alley, with the key in the ignition, and while absent, one of the children succeeded in setting the car in motion, injuring one of the other children. This court, in speaking of proximate cause, 309 Ill.App. at page 394, 33 N.E.2d at page 168, quoted from Wintersteen v. National Cooperage & Woodenware Co., 391 Ill. 95, 197 N.E. 578: ‘The intervention of independent, concurrent or intervening forces will not break the causal connection if the intervention of such independent force was itself probable and foreseeable.’

In Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47, 75 N.E. 436, a switchman left a switch unlocked, and it was opened by a trespasser which brought about the collision. The court, 217 Ill. at page 52, 75 N.E. at page 437, said: ‘That a collision was caused by the tortious act of a stranger could have no effect to relieve the common carrier from responsibility to an injured passenger, if the failure of the carrier to do that which human foresight and forethought would have suggested presented the opportunity for the commission of the tortious act.’ (Italics ours.)

In City of Joliet v. Shufeldt, 144 Ill. 403, 32 N.E. 969,18 L.R.A. 750, 36 Am.St.Rep. 453, it was said the court deduced from the authorities the general doctrine is that it was not a defense to an action for injuries occurring by reason of the negligent act of the defendant, that the negligence of a third person, or an inevitable accident, or that an inanimate thing contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred. To the same effect, Lotesto v. Baker, 246 Ill.App. 425.

Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 15, 158 A.L.R. 1370, (certiorari denied by the Supreme Court, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080), is directly in point. In that case an ordinance similar to our statute was violated. The driver of the car, an employee of appellee, parked it upon a public street, leaving the key in the ignition. Another stole the car and, while driving it, injured the plaintiff. The same defense was interposed as here. The court said: ‘Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. This comes only to saying that in such circumstances the law has no reason to ignore and does not ignore the causal relation which obviously exists in fact. The law has excellent reason to recognize it, since it is the very relation which the makers of the ordinance anticipated. * * * 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 fact that the intermeddler's conduct was itself a proximate cause of the harm, and was probably criminal, is immaterial. * * * The rule we are adopting tends to make the streets safer by discouraging the hazardous conduct which the ordinance forbids. It puts the burden of the risk, as far as may be, upon those who create it. Appellee's agent created a risk which was both obvious and prohibited. Since appellee was responsible for the risk, it is fairer to hold him responsible for the harm than to deny a remedy to the innocent victim.' (Italics ours.)

The Ross case expressly overruled its decision made 27 years previously in Squires v. Brooks, 44 App.D.C. 320. The court said of Squires v. Brooks: ‘We cannot reconcile that decision with facts which have become clearer and principles which have become better established than they were in 1946, and we think it should be overruled.’

The same court in Schaff v. Claxton, 79 U.S.App.D.C. 207, 144 F.2d 532, followed its reasoning in Ross v. Hartman, even though it did not involve a violation of the ordinance, since the owner did not park the car upon the public street, in violation of the ordinance, but parked it in a parking lot next to a restaurant, with the key in the ignition. A stranger drove off with the truck and injured plaintiff. It was held that even without the ordinance it was a question of fact for the jury as to whether the negligence of defendant, combined with that of the thief, under such circumstances, was the proximate cause of the accident.

The Supreme Court of Massachusetts in Malloy v. Newman, 310 Mass. 269, 37 N.E.2d 1001, 1005, sustained the right to recover under circumstances where the owner of the car, in violation of the registration statute of Massachusetts, illegally drove and then parked his car on one of the public streets of Boston, leaving the car unlocked, with the key in the ignition. A thief drove off the car and killed a pedestrian. The same defense was there raised that the violation of the statute was not the proximate cause of the accident, but the...