State of West Virginia v. Fidelity & Cas. Co. of NY

• Decision Date: 07 January 1967
• Docket Number: Civ. A. No. 2239.
• Citation: 263 F. Supp. 88
• Court: U.S. District Court — Southern District of West Virginia
• Parties: STATE OF WEST VIRGINIA, which sues at the Relation of Andrew POULOS and Marcella Poulos, and Andrew Poulos and Marcella Poulos, individually, Plaintiffs, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, S. B. Noe, Elbert Adkins, Luther Watts, Freddie Morris, Gilbert R. Morrison, G. D. Spence, and the Aetna Casualty and Surety Company, a corporation, Defendants.

263 F. Supp. 88

STATE OF WEST VIRGINIA, which sues at the Relation of Andrew POULOS and Marcella Poulos, and Andrew Poulos and Marcella Poulos, individually, Plaintiffs, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, S. B. Noe, Elbert Adkins, Luther Watts, Freddie Morris, Gilbert R. Morrison, G. D. Spence, and the Aetna Casualty and Surety Company, a corporation, Defendants.

Civ. A. No. 2239.

United States District Court S. D. West Virginia, Huntington Division.

January 7, 1967.

L. Alvin Hunt, Preiser & Greene, Charleston, W. Va., for plaintiffs.

Chad W. Ketchum, Greene, Ketchum, Baker & Pauley, Huntington, W. Va., for defendants Fidelity & Casualty Co. of New York and S. B. Noe.

Duncan W. Daugherty, Daugherty & Daugherty, Huntington, W. Va., for defendant Elbert Adkins.

C. Robert Schaub, Jenkins, Schaub & Fenstermaker, Huntington, W. Va., for defendant Gilbert R. Morrison.

Norman K. Fenstermaker, Jenkins, Schaub & Fenstermaker, Huntington, W. Va., for defendants G. D. Spence and Aetna Casualty & Surety Co.

CHRISTIE, District Judge.

This matter is before the Court pursuant to the motions of defendants Fidelity and Casualty Company of New York, a corporation; S. B. Noe; Elbert Adkins; Gilbert R. Morrison; G. D. Spence; and The Aetna Casualty and Surety Company, a corporation, to dismiss the complaint in that it fails to state a claim upon which relief can be granted. This is a diversity action and West Virginia substantive law is applicable. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Since this motion takes the place of a demurrer, we are required to consider as true every properly pleaded fact alleged in the complaint in determining its propriety. Ledbetter v. Farmers Bank & Trust Co., 142 F.2d 147 (4th Cir. 1944).

The facts appear to be as follows: On or about July 5, 1964, defendant S. B. Noe,¹ the duly elected sheriff of Wayne County, West Virginia, and defendant Elbert Adkins, a duly appointed deputy sheriff of Wayne County, West Virginia, as a result of having entrusted certain keys to Luther Watts,² a prisoner in their custody, negligently permitted Watts and defendant Freddie Morris, another prisoner, to unlawfully escape from the Wayne County jail. Thereafter, on or about July 6, 1964, defendant Gilbert R. Morrison parked his automobile on a public street in Huntington, West Virginia, with the ignition unlocked so that it might be operated without an ignition key. Defendant Freddie Morris stole this automobile and was pursued by defendant G. D. Spence,³ a member of the West Virginia Department of Public Safety, in an allegedly negligent manner for about five miles at high rates of speed through the streets of Huntington, West Virginia, and as a result the stolen vehicle collided with a vehicle owned and operated by plaintiff Andrew Poulos, injuring Mr. Poulos and a passenger in his Jeep Station Wagon, plaintiff Marcella Poulos.

In essence, the question becomes the familiar one of proximate and intervening causes. The definitions are familiar to all, while their application confuses many. The proximate cause of an injury is said to be the last negligent act contributing thereto, without which the injury would not have resulted; and an intervening cause of an injury is described as a negligent act or omission which constitutes a new effective cause and which, operating independently of anything else, is the proximate cause of the injury. Smith v. Penn Line Service, Inc., 145 W.Va. 1, 113 S.E.2d 505 (1960).

Four distinct acts of negligence, the entrusting of the storeroom keys, the failure to lock the ignition, the manner of the pursuit through Huntington, and the negligent manner in which the stolen car was driven, as well as the unlawful acts of breaking jail and stealing the automobile, are charged in the complaint. The legal effect of these acts will be treated separately insofar as possible.

(A) PURSUIT BY AN OFFICER:

The question of an officer's liability for injuries or damages arising from the operation of a vehicle pursued by him in the line of duty does not appear to have been considered in West Virginia or in many other jurisdictions. However, in those instances where it has been treated, the officer has generally been held not liable. See Annot. 83 A.L.R.2d 452 (1962). We must not forget that the primary duty was upon the pursued to stop, and although an utter willful, reckless, disregard for the life and property of third parties, such as an officer's continued high speed chase through a crowded school zone, would be difficult to excuse, the instant complaint indicates no such facts. It is hardly necessary to point out the overriding public policy of apprehending criminals as rapidly as possible, thus eliminating continued criminal acts, as a factor outweighing the undesirable consequences of holding an officer liable for the damages sustained by a third party as a result of negligence such as described in the complaint.

We are not prepared to hold an officer liable for damages inflicted by the driver of a stolen vehicle whom he was lawfully attempting to apprehend for the fortuitous reason only that the criminal drove through an urban area. To do so would open the door for every desperado to seek sanctuary in the congested confines of our municipalities, serene in the knowledge that an officer would not likely give chase for fear of being liable for the pursued's recklessness. Such is not now the law nor should it be the law. Accordingly, this complaint fails to state a claim upon which relief can be granted against defendants G. D. Spence and the surety on his bond, The Aetna Casualty and Surety Company, and the same will be dismissed as to them.

(B) UNLOCKED VEHICLE:

The general rule is that the intentional committing of a crime is a superseding cause, although the original actor's negligence created a situation which afforded an opportunity for the third person to commit such crime, unless the actor at the time of his negligent conduct realized, or should have realized, the likelihood that such a third person might avail himself of the opportunity to commit such a crime. Restatement (Second), Torts Section 448 (1965). However, there is a decided split of authority on the question of whether or not an automobile's owner who negligently leaves his vehicle unlocked or...