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Kacena v. George W. Bowers Co.

SEPTEMBER 16, 1965.

JEAN KACENA, KAREN KACENA, AN INFANT, BY WAYNE KACENA, HER FATHER AND NEXT FRIEND, WAYNE KACENA AND JOHN KACENA, PLAINTIFFS-APPELLEES,

v.

GEORGE W. BOWERS COMPANY, INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. WILLIAM F. CROWLEY, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 28, 1965.

This is an appeal by the defendant from an adverse judgment in a personal injury action, and a cross-appeal by the plaintiffs for a new trial on the question of damages.

The action arose out of a collision between the automobile in which the plaintiffs were riding and one stolen from the defendant, an automobile dealer. The liability of the defendant is principally predicated upon its alleged violation of section 92 of the Uniform Act Regulating Traffic on Highways, which prohibits leaving motor vehicles on public streets without having removed the keys from the ignition. Ill Rev Stats 1955, c 95 1/2, par 189.

The defendant contends that the keys were not left in the unattended car, but if they were this was not the proximate cause of the plaintiffs' injuries and that the trial court should either have directed a verdict in its favor or should have granted it a judgment notwithstanding the verdict. The defendant further contends, in the alternative, that because of trial errors and because the verdict was contrary to the manifest weight of the evidence a new trial should be ordered on the issue of liability only. The plaintiffs assert that their damages are grossly inadequate and that because of this and because of trial errors affecting the question of damages they should have a new trial solely on that issue or, in the alternative, a new trial on all the issues.

In the late afternoon of Friday, January 27, 1956, two youths, Clifford Moreci, 14 years of age, and Frank Costa, 16 years old, were walking past the defendant's showrooms. They paused to look at new automobiles which were parked on the company's lots and along the curb and on the adjoining parkway of a side street. Moreci noticed a new auto parked on the side street with the keys in the ignition. The boys inspected this car for a few minutes and did not see anyone who appeared to be watching the car. Moreci slipped into the car and started the engine. Costa got in next to him and Moreci drove away, apparently unnoticed. Between 5:00 and 10:00 that evening Moreci drove the car about 30 miles, stopping at home for dinner and leaving the car on a nearby street. At 10:00 Moreci parked the car for the night on a little-used street and returned home, retaining the keys in his possession.

The next evening, January 28th, Costa, who had a driver's license and was driving his father's car, picked up Moreci and they drove about for some time. Two friends joined them and Moreci told them about the stolen car. One of the friends, Francis LeFaire, was also 14 years old. LeFaire, whose breath smelled of liquor, said that he had a bottle of whiskey hidden in a nearby alley which he would trade for the keys to the stolen car. A bargain was struck and the exchange made. LeFaire was driven to the place where the car was parked. Prior to this he had driven a car for only two blocks but he got in the stolen car and drove it away. At 10:30 p.m. he picked up a friend, Philip Pandorfo, age 15, and, around 11:00 p.m., drove north on Hamlin Avenue.

At the same time the plaintiff Wayne Kacena was driving his father's automobile east on 59th Street, a through street. He was accompanied by his wife Jean and his infant daughter Karen. At the intersection of Hamlin Avenue the auto was struck by LeFaire's northbound car, which did not stop for the stop sign protecting 59th Street traffic. The Kacena auto was struck with such force that it careened across the intersection into the doorway of a building on the northeast corner. The auto caught fire and was so completely damaged that it was sold for salvage. A resident of the neighborhood pulled the Kacena family from their car with the assistance of Pandorfo, who got out of the stolen car and came to help. The fire and police departments responded to calls and the injured were rushed to a hospital.

While there was a conflict in the testimony as to whether the keys had been left in the ignition and whether the car was parked on the street or on the parkway, there was sufficient evidence from which the jury could have found both factual issues against the defendant. There was also evidence from which an inference could be drawn that the defendant knew or should have known the danger of leaving keys in its automobiles but that it continued to do so nevertheless. Moreci testified that for a year or two he had seen new automobiles parked along the side street near the defendant's place of business, that he occasionally saw keys in them, that a week prior to this theft he found another new car parked on the same street with the keys in the ignition and that he had taken it for a day and a half before returning it undetected. Another boy also testified that immediately prior to January 28, 1956, he had seen keys in the ignition of new cars parked on the same side street. George Bowers, the president of the defendant company, testified that it was common practice for the company's employees to leave new automobiles on the public street or on the parkway, that about 150 autos were kept in stock at all times and that in the course of a single business day some of them might be moved several times. He stated that occasionally employees would leave keys in these autos, that while he had not found such keys his supervisors had, that the subject often came up at employee safety meetings and that the employees were instructed not to leave keys in the cars. A Bowers' employee testified that he often saw young boys looking at the new cars. A police officer testified that on several occasions he had called upon the automobile dealers in the area, including Bowers, with warnings about the high incidence of thefts in the vicinity and the need for care in handling ignition keys. He warned the Bowers company specifically about cars being parked on the street which were open for anyone to take. There was further evidence that the inventory system used by the company was such that a complete count of the cars on hand was made only once a month and that a car could be gone for 28 days without being missed.

[1-4] The main liability issue in this case is whether the violation of the statute was the proximate cause of the plaintiffs' injuries. The statute 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. . . ." Ill. Rev Stats 1955, c 95 1/2, par 189.

The purpose of this statute is not to protect automobile owners from theft. It is a safety measure to protect the public from the danger posed by automobiles falling into the hands of irresponsible persons. Ostergard v. Frisch, 333 Ill. App. 359, 77 N.E.2d 537; Ney v. Yellow Cab Co., 348 Ill. App. 161, 108 N.E.2d 508. The violation of a public safety statute is prima facie evidence of negligence and creates a cause of action if it is the proximate cause of the subsequent injury. Johnson v. Pendergast, 308 Ill. 255, 139 N.E. 407; Kapka v. Urbaszewski, 47 Ill. App.2d 321, 198 N.E.2d 569. The injury must be the natural and probable result of the violation, one that could have been foreseen or reasonably anticipated by an ordinarily prudent person. An act that intervenes between the statutory violation and the injury, even a criminal act, will not become the proximate cause of the injury if it was itself foreseeable or probable.

In the present case two acts intervened between the keys being left in the car and the injury to the plaintiffs: the theft by Moreci and the negligence of LeFaire. The question that confronts us and confronted the jury is whether the interposition of these acts could have been reasonably anticipated by the defendant as the likely consequence of its own negligence.

The defendant contends that a statutory violation should not render a car owner liable for the actions of a thief except, perhaps, when the stolen car is operated by the thief in immediate flight from the place of the theft, and that, in any event, it should not be held liable in this case since the injuries here were caused by LeFaire who was not a party to the original theft. As long ago as 1948 this court held an owner liable for ...


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