Permenter v. Milner Chevrolet Co.

Decision Date03 December 1956
Docket NumberNo. 40285,40285
Citation91 So.2d 243,229 Miss. 385
PartiesJones C. PERMENTER v. MILNER CHEVROLET CO.
CourtMississippi Supreme Court

Barnett, Jones & Montgomery, Jackson, for appellant.

Lipscomb, Ray & Barksdale, Jackson, for appellee.

HALL, Justice.

The appellant as plaintiff filed this suit in the circuit court against the appellee for the recovery of damages for personal injuries sustained by him when an automobile in which he was riding in an easterly direction on Capitol Street in the City of Jackson was struck by a new Chevrolet automobile owned by the appellee and driven by one C. T. Butler in a northerly direction on West Street. The appellee-defendant filed a demurrer to the declaration which was sustained by the lower court and the plaintiff, having declined to plead further, suffered a dismissal of the suit and appeals here.

Since the case was decided on the declaration and demurrer in the lower court, the material allegations of the declaration control here. It alleges that the appellant was riding in an automobile along Capitol Street which was being operated by another person in a careful and reasonable manner, and that the new Chevrolet automobile owned by the appellee was driven by C. T. Butler in a northerly direction on West Street at a rapid rate of speed and that the said Butler was negligent in failing to keep the Chevrolet under reasonable control and in failing to keep a reasonable lookout in disregard of law and in disregard of a traffic light in operation at said intersection. The declaration further charges that the appellee had negligently left said Chevrolet automobile parked and unattended on the north side of South Street in the City of Jackson directly across the street in front of the place of business of the appellee, and that the appellee, through its agents and servants, had negligently failed to lock the doors or the ignition on said car and failed to remove the ignition key therefrom in violation of Section 8219 of the Code of 1942; that as a result of said negligence the said C. T. Butler had been induced to enter said Chevrolet car and drive it away, the reasonable inference being that the said Butler stole the said automobile, and that the appellee should have reasonably foreseen that the said car would probably be taken by intermeddlers and would probably result in injuries to the public, including the plaintiff, and that the appellee's negligence was a direct and proximate concurring cause of the injuries and damages to the plaintiff-appellant. The declaration further charged serious permanent injuries to the plaintiff.

Section 8219, Code of 1942, provides: '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, 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.'

For reversal appellant primarily relies upon the case of Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, decided by the United States Court of Appeals for the District of Columbia on November 22, 1943, certiorari denied by the Supreme Court of the United States on March 27, 1944, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080, which is a well reasoned case but which is contrary to the great weight of authority in this country. We have held that an automobile is not per se a dangerous instrumentality and that a person who voluntarily lends his automobile to another is not liable for damages inflicted upon third persons while the automobile is being operated by such person unless it be shown that the owner knew or by the exercise of reasonable care should have known that the person to whom he lends his car was a reckless and unsafe driver. We have also held that where an automobile is being driven by an agent or employee of the owner, the owner is not liable in damages for injuries to a third person unless at the time of the accident the agent or employee was acting within the scope of his employment. One of the leading cases on this question is Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272, 273, wherein the Supreme Court of Minnesota, in a case very similar on the facts, said as follows:

'Section 9:1-1114.1, Minneapolis City Charter and Ordinances (1949) (Perm. ed.) p. 904, in force at the time, reads as follows: 'Every person parking a passenger automobile on any public street or alley in the City shall lock the ignition, remove the key and take the same with him.'

'The principal issue presented for decision is whether the violation of the city ordinance was the proximate cause of decedent's death.

'In Wannebo v. Gates, 227 Minn. 194, 34 N.W.2d 695, this court was presented with almost the identical situation. There, defendant left his car unlocked with the keys in the ignition switch in violation of this same ordinance. The car was stolen, and several hours after the theft and about five miles from the place thereof it was driven negligently into plaintiff's automobile. We held that the acts giving rise to plaintiff's injury were too remote to charge defendant with responsibility. What distinguishes the Wannebo decision from the case at bar is that here it is alleged that the injury to plaintiff's decedent occurred during flight from the scene of the crime. We are therefore confronted with the question--which we specifically refused to decide in the Wannebo case--whether the allegation that the death of plaintiff's intestate occurred during flight from the scene of the crime constitutes a cause of action. * * *

'We are primarily concerned here with the problem of 'intervening efficient cause.' 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.

'We need not here decide whether the provision of the Minneapolis traffic ordinance above quoted was designed for the protection of the members of that particular class of the public of which plaintiff's decedent was a member. As the trial court pointed out, the purpose of the council was largely for the protection of car owners themselves and as an aid in proper law enforcement in the discouragement of theft and pilferage. 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. Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330. 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. The weight of authority is to that effect. Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778; Sullivan v. Griffin, supra; Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560; Walter v. Bond, 292 N.Y. 574, 54 N.E.2d 691; Wilson v. Harrington, 269 App.Div. 891, 56 N.Y.S.2d 157, affirmed 295 N.Y. 667, 65 N.E.2d 101; Lotito v. Kyriacus, 272 App.Div. 635, 74 N.Y.S.2d 599; Castay v. Katz & Besthoff, Ltd., La.App., 148 So. 76. Contrary decisions by inferior courts are 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, certiorari denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080; Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532; R. W. Claxton, Inc., v. Schaff, 83 U.S.App.D.C. 271, 169 F.2d 303.

'As a general rule, a wilful, malicious, or criminal act breaks the chain of causation. Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425, 141 N.E. 904; cf. Kennedy v. Hedberg, 159 Minn. 76, 198 N.W. 302; Robinson v. Butler, 226 Minn. 491, 33 N.W.2d 821, 4 A.L.R.2d 143; Goede v. Rondorf, Minn. , 43 N.W.2d 770; Restatement, Torts, Sec. 448. Hence, we hold that the negligence of the thieves in driving into the automobile of plaintiff's decedent was an intervening efficient cause interrupting the chain of causation between defendant's act in leaving his keys in the ignition switch and the death of plaintiff's decedent.'

It is admitted here that Butler, who caused this accident, was a criminal and that it was Butler's negligence which inflicted the injury and, as said in the foregoing case, the negligence of the thief was an intervening efficient cause interrupting the chain of causation between the defendant's act in leaving his key in the ignition switch and the death of the deceased in that case.

In the case of Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330, 331, the Supreme Judicial Court of Massachusetts, in a case very similar to this one, said:

'By Article IV, Sec. 7, of the traffic rules and regulations of the city of Boston then in force, it was provided: 'No driver shall stop, stand or park a vehicle in any of the following places, except when necessary to avoid conflict with other traffic, or with pedestrians, or in compliance with the direction of a police officer or traffic sign or signal: * * * Upon any sidewalk.' There was a penalty of not exceeding $50 for violation.

'The defendant violated not only the ordinance but also the provisions of G.L.(Ter.Ed.) c. 90, Sec. 13, which read, 'No person having control or charge of a motor vehicle shall allow such vehicle to stand in any way and remain unattended without first locking or making it fast.' See, also, G.L.(Ter.Ed.) c. 90, Sec. 7. 'The violation of a penal statute or of a valid ordinance, rule or regulation is evidence of negligence as to all consequences that were intended to be prevented.' Kralik v. LeClair, 315 Mass. 323, 326, 52 N.E.2d 562, 564, and cases cited. Nothing is added by the defendant's knowledge that thieves...

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