Richards v. Stanley

• Decision Date: 11 June 1954
• Citation: 43 Cal.2d 60,271 P.2d 23
• Court: California Supreme Court
• Parties: RICHARDS v. STANLEY et al. S. F. 18941

Page 23

271 P.2d 23

43 Cal.2d 60

RICHARDS v. STANLEY et al.

S. F. 18941.

Supreme Court of California

June 11, 1954.

Rehearing Denied July 7, 1954.

Frank J. Baumgarten and Harry N. Grover, San Francisco, for appellant.

Clark & Heafey, Edwin A. Heafey, Oakland, Gerald P. Martin, San Francisco, and Belcher & Koller, Oakland, for respondents.

TRAYNOR, Justice.

Plaintiff brought this action to recover damages for personal injuries suffered when his motorcycle collided with an automobile owned by defendants Mr. and Mrs. Stanley, which was being driven at the time by a thief, defendant Rawlings. The complaint alleged that Mr. and Mrs. Stanley were the owners of an automobile, which Mrs. Stanley parked on Stevenson Street near Second Street in San Francisco, leaving it 'unattended and unlocked with the ignition key in said car lock' in violation of section 69 of the municipal code; ¹ that as a result of this carelessness, defendant Rawlings 'was thereby induced to and did enter said automobile and drove it from its parking place * * * into the intersection of Army Street and Potrero Avenue in a careless and negligent manner to the point of impact' with plaintiff's vehicle; that the accident occurred at about 5:30 p. m. of said day when the Stanley's car driven by Rawlings struck plaintiff as he was driving his motorcycle, throwing him to the pavement; and that 'by reason of the premises and the aforesaid carelessness and negligence of the defendants and each of them, there was inflicted upon plaintiff serious personal injuries.' The Stanleys' general demurrer was overruled, and they answered denying the allegations of the complaint and pleading contributory negligence. At the start of the trial plaintiff offered municipal code section 69 in evidence, but the trial court excluded it. Plaintiff then sought leave to amend his complaint to state a cause of action for general negligence, but leave to amend was denied. The court then sustained the Stanleys' objection to the introduction of any evidence against them on the ground that the complaint failed to state a cause of action and granted their motion for a nonsuit. Plaintiff has appealed.

Although the ordinance provides that it shall not be admissible in evidence or have any other bearing in any civil action, plaintiff contends that it may nevertheless be relied upon as a basis for liability. He bases this contention on the theory that a city ordinance may not validly control the rules of evidence applicable in the courts and that the provision purporting to do so is severable from the remainder of the ordinance. A person may not recover damages based upon the violation of a criminal statute or ordinance, however, unless he is one of the class of persons for whose benefit the statute or ordinance was enacted. Nunneley v. Edgar Hotel, 36 Cal.2d 493, 497, 225 P.2d 497; Routh v. Quinn, 20 Cal.2d 488, 491-492, 127 P.2d 1, 149 A.L.R. 215. By providing that the ordinance should have no bearing in any civil action, the board of supervisors made clear that the ordinance was not enacted for the benefit of persons who might be injured by the operation of stolen automobiles, and accordingly, whether or not it could validly affect the admissibility of evidence, it was properly excluded as irrelevant.

Plaintiff contends that even if the ordinance is disregarded, his complaint states a cause of action for negligence against Mrs. Stanley. He relies on the allegations that as a result of her negligence and carelessness in leaving the car unattended on a public street with the key in it, Rawlings was induced to steal the car, and that thereafter his negligent driving resulted in injuring plaintiff. It may be conceded at the outset that the leaving of the key in the car parked on a public street constituted negligence on the part of Mrs. Stanley toward her own and her husband's proprietary interests in the automobile, and that the intervening act of the thief in stealing the car would not insulate Mrs. Stanley from responsibility for her negligence toward such interests. See Restatement, Torts, §§ 447, 449. As the court stated in Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3, 149 A.L.R. 215, however, 'It is an elementary principle that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member.' See also, McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783; Restatement, Torts, § 281(a), (b), comments c, e, g. Accordingly, it is necessary to consider the scope of the duty of the owner of an automobile to control his property for the protection of persons on the public streets.

Given a statute prohibiting the leaving of the key in an unattended vehicle on the public street, it could reasonably be contended that the legislature had established a duty on the part of motorist to protect persons on the streets from any damage caused by thieves driving stolen automobiles. See, Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 15, 158 A.L.R. 1370; Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 77-78; Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537, 539. In the absence of such a statute, however, it has generally been held that the owner of an automobile is under no duty to persons who may be injured by its use to keep it out of the hands of a third person in the absence of facts putting the owner on notice that the third person is incompetent to handle it. Baugh v. Rogers, 24 Cal.2d 200, 214, 148 P.2d 633, 152 A.L.R. 1043; Lane v. Bing, 202 Cal. 590, 592, 262 P. 318; Perry v. Simeone, 197 Cal. 132, 138, 239 P. 1056; Buelke v. Levenstadt, 190 Cal. 684, 688-689, 214 P. 42; McCalla v. Grosse, 42 Cal.App.2d 546, 550, 109 P.2d 358; Brown v. Chevrolet Motor Co., 39 Cal.App. 738, 741, 179 P. 697; See also Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395, 398; Castay v. Katz & Besthoff, Ltd., La.App., 148 So. 76, 78; Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560, 564; Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272, 273; cf., Johnstone v. Panama Pacific International Exposition Co., 187 Cal. 323, 329-330, 202 P. 34; Restatement, Torts, § 390.

Plaintiff contends, however, that since both theft and negligent driving on the part of the thief were foreseeable consequences of leaving the key in the car, Mrs. Stanley created an unreasonable risk to persons on the streets and was therefore negligent toward him. He relies upon Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 79, where the court stated: 'The increase in population and number of motor vehicles owned and operated in this country in the past few years is well known. The increase of casualties from traffic accidents is a matter of common knowledge and concern. The incidence of automobile thefts and damages and injuries resulting from such larcenous escapades has accordingly increased. Juvenile delinquincy has reached proportions alarming to everyone. Three major wars during the lifetime of this generation have had their effect upon the mental attitudes, not only upon those who endured the physical suffering and mental anguish, but upon all our society. Comparative regard and disregard for the rights and property of others have not been unaffected. Automobiles, once considered a luxury, are now considered by many to be a necessity. The man who once walked a mile now drives a block. The speed and power of automobiles have increased to the extent that safety experts are now showing keen awareness of their potentials even in the hands of rightful owners and careful operators. Incidents of serious havoc caused by runaway thieves or irresponsible juveniles in stolen or 'borrowed' motor vehicles frequently shock the readers of the daily press. With this background must come a recognition of the probable danger of resulting injury consequent to permitting a motor vehicle to become easily available to an unauthorized person through violation of the statute in question.' These considerations were undoubtedly persuasive in motivating the Illinois Legislature to pass a statute prohibiting owners from leaving keys in their unattended vehicles and in leading the Illinois Supreme Court to construe the statute as one intended for the benefit of persons who might be injured by the operation of stolen cars. In the absence of statute, however, we do not feel that they justify the recognition of a duty on the part of car owners to protect the public from the risk of the motoring activities of thieves, when to do so would result in imposing greater liability than is now provided by statute when the owner voluntarily entrusts his car to another. See Vehicle Code, § 402.

The problem is not answered by pointing out that there is a foreseeable risk of negligent driving on the part of thieves. There is a foreseeable risk of negligent driving whenever anyone drives himself or lends his car to another. That risk has not been considered so unreasonable, however, that an owner is negligent merely because he drives himself, or lends his car to another, in the absence of knowledge on his part of his own or the other's incompetence. Moreover, by leaving the key in the car the owner does not assure that it will be driven, as he does when he lends it to another. At most he creates a risk that it will be stolen and driven. The risk that it will be negligently driven is thus materially less than in the case in which the owner entrusts his car to another for the very purpose of the latter's use.

In one sense the problem presented involves the duty of the owner of an automobile so to manage it as not to create an unreasonable risk of harm to others. It bears emphasis, however, that when Mrs. Stanley left the car it was in a position where it could harm no one, an no harm occurred until it had been taken by a thief. Thus a duty to prevent such harm would involve more than just the duty to control...