Opinion
Page __
__ Cal.App.2d __260 P.2d 277RICHARDSv.STANLEY et al.Civ. 15322.California Court of Appeals, First District, Second DivisionAug. 24, 1953Hearing Granted Oct. 22, 1953.
[260 P.2d 278] Frank J. Baumgarten and Harry N. Grover, San Francisco, for appellant.
Clark & Heafey, Belcher & Koller, Edwin A. Heafey, Oakland (Gerald P. Martin, Oakland, of counsel), for respondents.
GOODELL, Justice.
This appeal was taken from a judgment entered on the granting of a nonsuit in a personal injury action.
The complaint alleges that the defendants Manfred Stanley and Mary Stanley, husband and wife, were the owners of a 1941 De Soto Sedan which at the time in question was under the control of Mrs. Stanley and that on August 14, 1948, at about 5:30 p. m., she parked it on Stevenson Street near Second in San Francisco and left it 'unattended and unlocked with the ignition key in said car lock in direct violation of section 69' of the Municipal (Traffic) Code, which is set out in the complaint as shown in the footnote.
'Sec. 69. Requiring removal of ignition keys from noncommercial motor vehicles standing unattended in certain places, authorizing officers to remove. No person shall leave a motor vehicle, except a commercial motor vehicle, unattended on any street, alley, used car lot, or unattended parking lot, without first stopping the engine, and removing and taking the ignition key from the vehicle; provided, however, that any violation of this section shall not mitigate the offense of stealing any such motor vehicle; nor shall this section or any violation thereof be admissible as evidence affecting recovery in any civil action for theft of such motor vehicle, or the insurance thereon, or have any other bearing in any civil action. Whenever any police officer shall find any such motor vehicle standing in violation of this section, such police officer is authorized to remove therefrom the keys left therein and deliver the same to the officer in charge of the nearest police station.'
It alleges that by reason of her carelessness in leaving the car unattended on a public street, unlocked, with the key in the lock, defendant Rawlings was thereby induced 'to and did, enter said automobile and drove it from its parked place over various streets in the City * * * and into the intersection of Army Street and Potrero Avenue in a careless and negligent manner to the point of impact with the plaintiff's vehicle in said intersection.'
It then alleges that about 5:45 p. m. plaintiff was driving a motorcycle on Army Street near Potrero Avenue when Rawlings [260 P.2d 279] in the De Soto carelessly and negligently ran into him with great force and violence, throwing him to the pavement. Then: '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 which rendered said plaintiff sick, sore, lame and disabled, and causing permanent injuries.' (Emphasis added). Then follow allegations of plaintiff's injuries, hospitalization and treatment, also respecting the damage to his motorcycle. The prayer is for $50,000 general damages plus special damages and $470 property damages.
The complaint is based on concurrent negligence since it brackets Mrs. Stanley's negligence in leaving the key in the car with Rawlings' negligence in colliding with plaintiff.
The general demurrer of the Stanleys was overruled and their answer contains denials and pleads plaintiff's contributory negligence.
At the trial a jury was empaneled and opening statements were made. When section 69 was offered in evidence the defense objected that 'it shows on its face that it does not pertain in any way to a civil action; it is not to be used in any way in any civil action.' After argument the court admitted it but the next day the ruling was reversed and the court rejected it, remarking, however, that 'if the complaint states a cause of action otherwise, all right--but couldn't it be amended so it could state a cause of action?'
After further discussion the following occurred:
'Mr. Grover: If your Honor please, at this time, on behalf of the plaintiff, we move the court for leave to amend the present complaint by adding thereto a cause of action founded upon a charge of general negligence on the part of Mary and Manfred Stanley, the two defendants here.' The defense objected on the ground that the cause of action as pleaded 'is based on this ordinance * * *; your Honor has held that that ordinance is not admissible. Then, counsel now seeks to set forth a separate cause of action setting forth general negligence. The first cause of action then would be on the basis of the statute, and the second on the basis of general negligence. It sets forth a new cause of action after a period of one year as described, [sic] and certainly it is barred by the statute of limitations, and we object to it on that ground.
'The Court: Very well. The objection is sustained.
'Mr. Grover: I understand that the motion is denied, your Honor?
'The Court: Yes, denied.
'Mr. Heafey: At this time, on behalf of the defendants Manfred Stanley and Mary Stanley, we object to the introduction of any further evidence under the cause of action that is set forth in this complaint which is based on the ordinance * * *.
'The Court: The motion is granted.
'Mr. Heafey: At this time I assume that counsel has no further evidence to offer, no offer of evidence to make, and we move the court for a judgment of nonsuit in favor of Manfred Stanley and Mary Stanley.
'The Court: The motion for nonsuit will be granted. But the case is still pending against the other defendant.'
It will be seen that the trial was brought to a halt by a ruling which shut out all testimony on the plaintiff's side. The court had suggested the possibility of amending the complaint, but as soon as plaintiff's counsel asked leave to amend, the court denied it without having the benefit of the amendment which plaintiff might have proposed. It would appear that the court had concluded that plaintiff relied solely on the traffic ordinance and could neither allege nor prove a case without it.
Appellant contends that even though all references to the ordinance be eliminated, the complaint still states a cause of action for negligence against Mrs. Stanley.
If from paragraph IV the words 'in direct violation of Section 69' etc. be stricken there remains the averment that Mrs. Stanley parked the car in the downtown business district of a large city and left it 'unattended and unlocked with the ignition key in said car lock.' If from [260 P.2d 280] paragraph V the words 'in direct violation of the aforesaid City Ordinance' be stricken there remain the averments that Mrs. Stanley's negligence in leaving the car as she did, induced Rawlings to take it and drive it in a careless and negligent manner. We are satisfied that regardless of the references to the ordinance the complaint was sufficient as against a general demurrer, and that the first order (made nine months before the trial) overruling the general demurrer was correct. See Jackson v. Hardy, 70 Cal.App.2d 6, 12-13, 160 P.2d 161.
The motion of the defense to exclude evidence based on the insufficiency of the complaint was in the nature of a general demurrer to the complaint, Calhoun v. Calhoun, 81 Cal.App.2d 297, 183 P.2d 922, hence on such motion the court had to accept its allegations as true. Smith v. Beauchamp. 71 Cal.App.2d 250, 162 P.2d 662.
The real and underlying question in this case is whether Rawlings' negligence was an intervening or superseding act which broke the chain of causation set in motion by the leaving of the key in the unlocked car.
The subject of intervening acts has been under examination by the Supreme Court in several recent cases. In Eads v. Marks, 39 Cal.2d 807, 812, 249 P.2d 257, 260, that court said: 'Where the intervening act is reasonably foreseeable, the chain of causation is not broken, and the original actor remains liable', citing Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872 and Osborn v. City of Whittier, 103 Cal.App.2d 609, 230 P.2d 132.
That court has given its approval to §§ 447, 449 and 453 of the Restatement of Torts with respect to proximate causation. See McEvoy v. American Pool Corporation, 32 Cal.2d 295, 298-299, 195 P.2d 783. Section 447 reads: 'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct as a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act.' Sections 449 and 453 are found in the footnote.
Section 449--'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.'
In the McEvoy case, supra, Jack McEvoy was employed by the Pool Corporation as a service man. He used his own car in making his rounds, being paid for its use by his employer. In his work he used dangerous chemicals which he always carried in his car. One evening while off duty a hit-and-run driver collided with his car and the impact broke the glass containers, spilling the chemicals on Jack's mother who happened to be riding with him. In her action against the corporation a nonsuit was granted. In reversing the judgment the court said, 32 Cal.2d 299, 195 P.2d 786: 'In the light of the foregoing [Restatement] we cannot say, as a matter of law, that defendants are relieved from liability for negligence by the intervening conduct of their employee or the hit-and-run driver. As we have seen, the jury could have found that defendants owed a duty to persons in plaintiff's situation, and they cannot escape responsibility for their failure to perform that duty merely because of intervening acts the likelihood of which they reasonably should have foreseen. In regard to Jack's conduct in leaving the chemicals in the car, there was evidence that defendants failed to give him adequate notice of the extremely dangerous character of the [260 P.2d 281] liquids and that he was unaware that they were dangerous. The jury could have found that defendants had knowledge that their employees did not remove the glass jars from their cars at night before driving for pleasure and that defendants should have foreseen the likelihood of such conduct on the part of Jack on the night of the accident. As for the intervening negligence of the unknown their driver, the jury could have found, in view of the frequency of automobile accidents, that defendants should have foreseen that a third person might cause the type of accident which occurred.' (Emphasis added.)
The reasoning of the McEvoy case on the question of intervening negligence was followed in the case of Benton v. Sloss, 38 Cal.2d 399, 240 P.2d 575. In that case Sloss, a used car dealer, during negotiations for the sale of an old car to one Jay Fetters, a 19-year-old boy, permitted him to drive it over a week-end. Jay had no driver's license, and Sloss knew it. While driving around with some other youngsters, it collided with another car and the plaintiffs, who were riding with Jay, were injured. In affirming a judgment in their favor against Sloss the court said, 38 Cal.2d at page 405, 240 P.2d at page 579: 'Jay's negligent driving was unquestionably a cause of plaintiffs' injuries. Sloss' negligence was also a cause of those injuries, if it was a substantial factor in bringing them about. McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783; Rest., Torts, § 431. This question of fact the trial court resolved in plaintiffs' favor. * * * The negligent conduct of Jay did not relieve Sloss from liability, for the likelihood of negligent operation of the vehicle was one of the hazards that Sloss could reasonably foresee. Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 220, 157 P.2d 372, 158 A.L.R. 872; McEvoy v. American Pool Corp., supra, 32 Cal.2d 295, 298, 195 P.2d 783; Lacy v. Pacific Gas & Elec. Co., 220 Cal. 97, 29 P.2d 781; Opple v. Ray, 208 Ind. 450, 456, 195 N.E. 81; see Rest., Torts, § 447.' (Emphasis added.)
See also Luis v. Cavin, 88 Cal.App.2d 107, 113, 198 P.2d 563 and Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 425-427, 218 P.2d 43.
In the Mosley case, 26 Cal.2d 219, 157 P.2d 372, 375, the court says that 'the issue of proximate cause is essentially one of fact.' The McEvoy case and Benton v. Sloss are directly in point, and we see no reason for prolonging the discussion of the question of proximate cause. Under these authorities it could not be held as a matter of law that Rawlings' negligence was a superseding act.
Our holding, then, is simply that the question whether the leaving of the ignition key in the lock of the Stanleys' unlocked car parked in a busy street was negligence, and, if so, whether it was a proximate cause of plaintiff's injury, are questions of fact.
At the time when leave to amend was denied the complaint had been already (nine months before) held sufficient as against a general demurrer. In those circumstances plaintiff's counsel could hardly be expected 'to appear at the time of trial armed with the proposed amendments to their pleadings.' See MacIsaac v. Pozzo, 26 Cal.2d 809, 816, 161 P.2d 449. The denial of plaintiff's motion to amend was tantamount to the sustaining of a demurrer without leave to amend. Time should have been granted to enable plaintiff to amend (if so advised) and it was an abuse of discretion to deny such permission, Code Civ.Proc. § 472c; see Washer v. Bank of America, 21 Cal.2d 822, 833, 136 P.2d 297, 155 A.L.R. 1338; Hancock Oil Co. of California v. Hopkins, 24 Cal.2d 497, 510-511, 150 P.2d 463; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 42, 172 P.2d 867; Cruise v. City and County of San Francisco, 101 Cal.App.2d 558, 561, 225 P.2d 988; C. Dudley De. Velbiss Co. v. Kraintz, 101 Cal.App.2d 612, 617, 225 P.2d 969.
We are satisfied that § 69 is purely and simply a police measure designed to remove the temptation to steal automobiles, and thus reduce the number of thefts thereof. Regardless of the provision therein that the section shall not be admissible or [260 P.2d 282] have any 'bearing in any civil action' we are satisfied that the section cannot be used to establish prima facie negligence and that the court properly rejected it in the case now under review.
The judgment appealed from is reversed and the cause remanded for a new trial with the direction to the court to grant plaintiff a reasonable time within which to amend his complaint freed from all reference to § 69 of the Municipal Code.
NOURSE, P. J., and DOOLING, J., concur.
Section 453, comment (a): 'If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability. If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.'