Opinion
No. E-322.
March 12, 1964. Rehearing Denied April 7, 1964.
Appeal from the Circuit Court for Duval County, A.W. Graessle, Jr., J.
H. Franklin Perritt, Jr., of Marks, Gray, Yates, Conroy Gibbs, and Marion R. Shepard, of Mathews, Osborne Ehrlich, Jacksonville, for appellants.
Larkin, Lewis Decker and Barnes Slater, Jacksonville, for appellee.
Appellants Anchor Hocking Glass Corporation and Lamar Bruce Bragg have appealed a final judgment based upon a jury verdict awarding damages to appellee Mae Bell Allen for the wrongful death of her husband caused by the negligence of the appellants. Anchor Hocking questions the sufficiency of the evidence to support the verdict which finds it guilty of negligence, while appellant Bragg questions the sufficiency of the evidence to support the verdict which finds that appellee was the lawful wife of the decedent at the time of the latter's wrongful death, and therefore entitled to bring this action.
It is the theory of plaintiff's case that at the time her husband was struck and killed by the motor vehicle owned by Anchor Hocking, the braking systems on the vehicle were defective and that this, coupled with the negligent operation of the vehicle by defendant Bragg with the implied consent of Anchor Hocking, proximately caused the injuries which resulted in her husband's death.
We shall first direct our attention to the grounds of the appeal urged by Anchor Hocking as cause for reversal of the judgment appealed. It contends that no evidence was adduced at the trial sufficient to establish any act of negligence on its part, but if such negligence was established, then the evidence affirmatively reveals that as a matter of law such negligence was not the proximate cause of the decedent's death.
Anchor Hocking's motion for a directed verdict at the conclusion of plaintiff's evidence and at the close of all the evidence was denied, as were its motions for judgment after verdict in accordance with its motion for directed verdict, and for a new trial.
At the outset, it must be noted that the evidence adduced by the several parties respecting the issues of negligence and proximate cause was in sharp conflict. Under the settled law of this state, all conflicts in the evidence have been resolved by the jury through the rendition of its verdict, which action has been approved by the trial judge in denying appellant's motion for a new trial. For these reasons the judgment comes to this Court with a presumption of correctness, and the burden rests upon appellants to clearly demonstrate harmful error. In considering the question of whether the evidence is sufficient to support the verdict and judgment, it is basic that all evidence touching on the issues involved in the case, and all reasonable inferences which may lawfully be drawn therefrom, must be considered in a light most favorable to the prevailing party. It is with these time honored principles in mind that we approach our task of determining whether appellants have carried the burden of clearly demonstrating error.
From the record we find the following evidence which the jury had a right to believe and on which it based its verdict.
On and before the critical date involved in this case Maxwell House Coffee Company maintained a plant in the City of Jacksonville. The structure housing the plant is surrounded by a paved area, all of which is enclosed with a fence having but one gate leading from the city street into the plant area. During working hours the paved area around the plant is normally congested with trucks and other vehicles entering and leaving the plant yard in the transaction of business with Maxwell House. The paved area adjacent to the entrance gate slopes downward to the loading platform of the plant, which platform is used for loading and unloading shipments consigned to and from the Maxwell House plant.
On and prior to the date in question Anchor Hocking Glass Corporation maintained its plant six miles distant from that of Maxwell House and, among other things, was engaged in the business of supplying Maxwell House with glass jars. The demand for Anchor Hocking's product was so consistently heavy that its tractor-trailer motor units operated daily on a shuttle basis between the two plants. Two spaces at the loading platform at the Maxwell House plant were assigned to Anchor Hocking for its use in unloading the glass jars delivered by it. The remaining spaces were utilized by other suppliers and concerns with whom Maxwell House transacted business. Anchor Hocking's method of operation included the employment of a separate crew which was permanently stationed at the Maxwell House plant for the purpose of unloading the trailers of glass jars delivered to the plant. As each Anchor Hocking trailer was unloaded, it was promptly returned to the company's plant and its place at the loading platform immediately filled by another Anchor Hocking trailer.
On the day in question one of Anchor Hocking's tractor-trailer units operated by its driver, John W. Mullaly, arrived at the Maxwell House plant late in the afternoon with a load of glass jars. As this unit entered the gate to the plant yard Mullaly observed that the two spaces at the loading platform assigned to Anchor Hocking were occupied by other Anchor Hocking units which were in the process of being unloaded. Not being able at that moment to park his trailer at the loading platform, Mullaly stopped his unit partially inside of and completely blocking the gate leading into and out of the Maxwell House yard. He locked the trailer air brakes, set the mechanical hand brake and placed the truck in reverse gear. He then got out of the truck, leaving it unattended with the ignition keys in the switch, and proceeded to the loading platform where he visited among his friends. It was there that he located his brother, the driver of another truck being unloaded at the platform, with whom he proceeded to sit and visit. The evidence reveals that Mullaly had absented himself from his tractor-trailer unit for a period of approximately thirty minutes before the tragedy involved in this case occurred.
On and prior to the day in question appellant Lamar Bruce Bragg was employed by Henley Beckwith, Inc., of Jacksonville, and was engaged in installing a vacuum pipeline in the Maxwell House plant. He completed his day's work and proceeded to leave the Maxwell House yard in his one ton pickup truck, accompanied by his helper. As Bragg left the area where his truck had been parked, he found the travel lane leading to the exit gate blocked by a truck owned by a party not involved in this proceeding. The driver of the improperly parked truck was located and he moved his vehicle in order to let Bragg pass. The delay caused by this incident evidently upset Bragg and as he proceeded toward the exit gate, he came upon the parked Anchor Hocking tractor-trailer unit which completely blocked the only exit out of the plant yard. Becoming angered at the second delay caused by an improperly parked vehicle, Bragg profanely exclaimed that since the driver of the unit was not available, he would move it himself. The ownership of the tractor-trailer unit by Anchor Hocking was clearly evident by the company name appearing on the side of the trailer. As he got out of his own truck preparatory to moving the Anchor Hocking unit, Bragg recognized one Anderson whom he knew to be an Anchor Hocking employee and who at that time was at the loading platform unloading another Anchor Hocking trailer. Bragg asked Anderson to move the Anchor Hocking tractor-trailer unit out of the way so Bragg could leave the yard, and Anderson replied, "All you have to do is just let it roll down." Bragg then entered the cab of the tractor, cranked the motor, and put it in gear in an attempt to move the unit forward. Instead of moving forward the tractor bounced up and down whereupon Anderson shouted to Bragg, "You don't have to do that, cut the motor off. Just push it back in gear." After Bragg switched off the ignition and stopped the motor, Anderson instructed him to push down the lever attached to the steering column and the truck would roll forward a sufficient distance to clear the exit gate. At that time some unidentified third party interjected that the lever should be pulled upward instead of pushed downward, and Anderson agreed. Bragg pulled the lever upward and the tractor-trailer unit began to move forward down the gradually sloping incline toward the loading platform located just fifteen to twenty yards away. As the rolling unit began to increase its momentum Bragg applied the foot brake and even though the pedal depressed to the floorboard the forward speed of the rolling vehicle was not impeded. Realizing that the foot brake did not work Bragg shouted, "Look out, no brakes," and immediately seized the emergency brake lever and brought it all the way back against the seat. This second braking system likewise failed to operate and the unit continued to roll forward. At that moment the deceased, Herbert Allen, an employee of a concern not involved in this proceeding, was standing beside a truck which was parked adjacent to the loading platform with his back toward the Anchor Hocking unit. Because of Bragg's inability to stop the Anchor Hocking unit, it continued to roll forward, striking Allen and crushing him between it and the truck parked at the platform.
It is reasonably clear from the evidence that although Bragg was accustomed to operating trucks of the small pickup type and had in the past operated larger tractor and trailer units, he had never operated a unit of the type owned by Anchor Hocking and involved in this case. From the testimony it is apparent that Bragg was not familiar with the Anchor Hocking tractor and was not qualified to operate it.
In his testimony before the court Anchor Hocking's truck driver, John W. Mullaly, stated that the reason he left the ignition key in the switch of his tractor-trailer at the time he parked it in the entrance gate to the Maxwell House yard was because he was aware that he was blocking the gate and he realized his unit might be in someone else's way. He testified that it was normal procedure to leave the ignition key in the switch under such circumstances.
On the issue of negligence the question arises as to whether the evidence above detailed, and the inferences which may reasonably be drawn therefrom, is sufficient to establish in the mind of a reasonable man that Anchor Hocking knew or should have known that the braking systems on its tractor-trailer unit were defective and incapable of efficiently performing their proper function. If so, is the evidence reasonably susceptible of the inference that under the circumstances above detailed, Bragg attempted to operate the Anchor Hocking unit with the latter's express or implied consent, and because of his unfamiliarity with it negligently operated the unit in a manner which proximately resulted in the death of plaintiff's decedent. It is our conclusion that both of the foregoing questions must be answered in the affirmative.
The statute of this state relating to braking equipment required on motor vehicles operated upon the streets and highways of Florida requires that each such vehicle be equipped with two separate braking systems, each of which shall be effective to apply the brakes to at least two wheels, and to control the movement of and stop and hold such vehicles. Violation of this statute is a crime and is prima facie evidence of negligence.
"Every motor vehicle, other than a motorcycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of, and to stop and hold, such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels." F.S. § 317.61(1), F.S.A.
Gudath v. Culp Lumber Company, (Fla. 1955) 81 So.2d 742, 53 A.L.R.2d 846. Clark v. Sumner, (Fla. 1954) 72 So.2d 375.
Appellant introduced expert testimony tending to show that the braking equipment on the trailer was in good working order at the time of the incident involved in this case. Conceding such testimony to be credible and unimpeached, it related only to the trailer and not to the tractor itself. Appellant introduced at the trial the testimony of its driver, Mullaly, and another to show that the braking systems on the tractor were properly working both before and after the accident. Appellant contends that this testimony is conclusive and that the jury was not justified in believing Bragg's false testimony when he said he attempted to stop the vehicle by applying both the foot brake and the emergency hand brake, but neither of them functioned. If appellant's theory had been accepted by the jury, it would have been forced to conclude that Bragg was either a maniac or a cold-blooded murderer, for this would have been the case had he started the unit forward down the incline toward Allen and the parked truck at the platform and failed to apply any of the braking systems available to him to stop the vehicle as appellant contended he did.
Anchor Hocking's driver, Mullaly, in parking his unit in such manner as to block the exit gate to the Maxwell House yard was aware of the significance of his act and in accordance with what he termed standard procedure left the ignition key in the switch, thereafter absenting himself from his unit for a period of some thirty minutes. He knew that the yard was congested with other motor vehicles which at that time of day would be entering and leaving the yard at frequent intervals. We believe the jury was justified in inferring from Mullaly's testimony that he left the ignition keys in the switch of his tractor for the specific purpose of permitting it to be moved out of the gateway by anyone having occasion to either enter or leave the plant yard. Such action was an implied invitation to Bragg, or anyone else similarly situated, to do exactly as Bragg did in attempting to clear the exit so he could leave the yard for the night. Anchor Hocking insists that although the evidence may be susceptible of the inference that it impliedly consented for its unit to be moved by someone other than its driver, the jury was precluded from finding that such consent extended to one as unqualified as Bragg. With this contention we cannot agree. Although Anchor Hocking could safely assume that someone might attempt to move the unit during Mullaly's absence, it had no right to assume that such a person would necessarily be a qualified operator of that type unit.
Anchor Hocking's next contention is that even though its driver left the ignition keys in the switch of the tractor during his absence, this act was not the proximate cause of decedent's death, but that the proximate cause was the negligence of Bragg for which it is not liable. In support of this position Anchor Hocking invites our attention to the Lingefelt case decided by the Third District Court of Appeal, and the Bryant case decided by the Second District Court of Appeal. In each of the cited cases the owner of a motor vehicle left it parked on a city street unattended with the ignition key in the switch. In each case the vehicle was stolen by a thief who operated it in such manner as to damage a third person. In suits by the injured plaintiffs against the owners of the vehicles it was held in each case that although the owner's act in leaving the ignition key in the switch may be held to be an act of negligence, nevertheless this act was not the proximate cause of the damages suffered by the plaintiff, the proximate cause being the negligent operation of the vehicle by the thief. Obviously, the Lingefelt and Bryant cases are not applicable to the facts in the case sub judice. In each of those cases the vehicle was operated by a person without the express or implied consent of the owner. In the case now reviewed the jury was justified in inferring that Anchor Hocking either expressly or impliedly consented for its vehicle to be operated by Bragg, or some person similarly situated, under the circumstances shown by this record. Such facts bring this case more in line with the decision rendered by this Court in the Smith case. In that case we held that the act of a truck driver in leaving his truck with the ignition key in the switch under circumstances where he had reason to believe that an unqualified minor companion driving with him might attempt to start the truck and operate it during his absence presented an issue of negligence which could be resolved only by the jury, and which precluded the entry of summary judgment in favor of the truck owner.
Lingefelt v. Hanner, (Fla.App. 1960) 125 So.2d 325.
Bryant v. Atlantic Car Rental, Inc., (Fla.App. 1961) 127 So.2d 910.
Smith v. City Products Corporation, (Fla.App. 1962) 147 So.2d 590.
In the recent case of Beikirch v. City of Jacksonville Beach this Court cited with approval the decision rendered by the Third District Court of Appeal in the Holmes case in which it is held:
Beikirch et al. v. City of Jacksonville Beach (Fla.App. 1964) 159 So.2d 898.
Holmes v. Forty-Five Twenty-Five, Inc., (Fla.App. 1961) 133 So.2d 651.
"Negligence cases are extremely troublesome due to the varied fact situations which they present. It has been held that where the case is extremely close on the question of negligence or contributory negligence, `doubt * * * should always be resolved in favor of a jury trial.'"
In commenting upon the above holding this Court said in the Beikirch case:
"A third rule that is useful in determining the merits of the present appeal is that adverted to in the above quotation from the Holmes case — that when the question of negligence or contributory negligence is extremely close, doubt should always be resolved in favor of a jury trial."
It is our conclusion that the evidence adduced on the trial of this cause was sufficient, when believed by the jury, to establish that it was Anchor Hocking's act of negligence which proximately caused the death of plaintiff's decedent. Under the circumstances the trial court was eminently correct in denying appellant's motions for directed verdict and for new trial.
We have carefully considered the point raised by appellant Lamar Bruce Bragg on this appeal, but find it to be without substantial merit.
The judgment appealed is accordingly affirmed.
CARROLL, DONALD K., J., concurs.
STURGIS, C.J., dissents.
At the close of plaintiff's case and again at the close of all the evidence motions of the defendant Anchor Hocking for a directed verdict were denied. The jury returned a verdict for the plaintiff widow against defendants Bragg and Anchor Hocking and found defendant Henley Beckwith, Inc., not guilty. Bragg and Anchor Hocking filed motions for judgment notwithstanding the verdict and for a new trial, which were denied. Anchor Hocking sued out this appeal and Bragg joined therein, but it is interesting to note that Bragg's brief herein is devoted exclusively to arguments supporting the validity of the judgment rendered against his co-defendant, appellant Anchor Hocking. There is no explanation of this anomalous situation which leaves Anchor Hocking in the practical position of the sole party appellant.
When the accident occurred the Anchor Hocking tractor-trailer was being driven, without the specific consent or knowledge of Anchor Hocking, by defendant Bragg who was not connected in any manner with Anchor Hocking. The conclusion of the majority is clearly based on the premise that Anchor Hocking impliedly consented to Bragg's operation of the truck. I do not think the evidence permits that inference. Bragg was in fact an employee of defendant Henley Beckwith, Inc., and just prior to the accident was engaged in installing a vacuum pipeline at the Maxwell House plant. That work was totally foreign to the normal loading and unloading operations on the premises in which Anchor Hocking was engaged and quite familiar.
Anchor Hocking's driver, Mullaly, parked the truck in the private yard of the Maxwell House plant to await an opportunity to have it unloaded. He parked it near and parallel to a fence on the eastern edge of the yard and immediately adjoining the gate, then dismounted and went to the loading platform where he was engaged in a conversation with his brother, driver of another Anchor Hocking truck, when the accident occurred five or six minutes later. Before dismounting, however, he locked the air brakes on the trailer, set the mechanical hand brake on the tractor, and placed the tractor in reverse gear. He left the ignition key in the lock of the tractor.
Approximately seven minutes before the accident occurred defendant Bragg had completed his day's work on the vacuum pipeline which he was installing and accompanied by his helper, B.C. Rodriquez, had started to leave the premises in a one-ton pickup truck driven by him but owned by defendant Henley Beckwith, Inc., his employer. The yard at the Maxwell House plant was at that time congested by several tractor-trailer rigs, two of which interfered with Bragg's ability to drive the pickup truck off the premises, one being a truck owned by a third party, Laney Duke Warehouse and Storage Company, and which was parked near the Mullaly truck when defendant Bragg came up toward the gate. Bragg's helper, Rodriquez, asked one Andrew Carswell, the driver of yet another tractor-trailer truck owned by Laney Duke Warehouse and Storage Company, to move the obstructing Laney Duke truck, but Carswell declined to do so because he was not assigned to that particular unit. He did, however, ask the driver of that unit to move it and such was done, leaving the Mullaly truck blocking Bragg's exit. Mr. Carswell testified that at that point Bragg made the following statement concerning the Anchor Hocking truck: "If these — none of these g.d.s.o.b.'s will move the truck, I will do it myself." He then got out of the pickup truck, got in the Anchor Hocking truck, started the engine, placed it in gear and tried to move it forward, whereupon the tractor began to bounce up and down but no forward movement resulted, from which he concluded that the brakes were locked.
At that time one Lewis Anderson, an employee of Anchor Hocking, whose duty it was to unload and receipt for the contents of its trucks at said plant, was standing at the side door of another Anchor Hocking truck that had been backed up to the platform for unloading purposes. He saw Bragg in the Mullaly truck, noticed that the tractor was bouncing up and down, called out that the brakes were on and went over to the truck, a distance of 45 to 50 feet, where he had some conversation with Bragg about the brakes and in the course of which suggested that Bragg pull down the brake lever on the right side of the steering wheel so as to release the brakes. At that time some other person present observed that the lever should be pulled upward and Anderson agreed. Bragg then pushed the brake lever upward, an escape of air was heard, and the truck began to roll forward and continued until it struck and killed the deceased.
Witness Andrew Carswell testified that the engine on the truck was running as it moved forward and that it stalled and came to a stop upon impact with the other truck. Another witness, Lewis Anderson, testified to the same effect. Bragg testified, however, that he cut off the engine before the truck moved forward, that he stepped on the brake pedal but the truck did not stop, that he then called out, "Look out, no brakes," that he jammed the truck into gear and pulled back the hand brake, and it was only then that the truck struck the deceased. Carswell, who had been standing with the deceased immediately prior to the accident, promptly opened the door of the tractor, pushed Bragg over to the right of the cab, started the motor, and backed up the truck. He testified that he found the ignition at the "on" position, and that the truck gear was in a forward position. After backing it away from the point of impact he set the brakes but did not notice the air pressure gauge at that time. Approximately 45 minutes later Mullaly checked the brake system on the truck, found it to be operating properly, and noted that the air pressure was in excess of 60 pounds. Carswell came over and at that time also noted that the air pressure was in excess of 60 pounds. He also saw Mullaly drive the truck forward five or six feet and apply the foot brake, causing the trailer wheels to lock.
The only ownership identification on the truck was the lettering "Anchor Hocking" on the tractor doors. Its employees did not wear any distinguishing uniform or device to identify themselves as such. Witness Lewis Anderson had been in the employ of Anchor Hocking approximately one year, but when the accident occurred had been working at the Maxwell House plant for only two weeks. He was not a truck driver and did not know how to operate a tractor-trailer rig. His employment and responsibility was limited to the unloading of Anchor Hocking trucks at the Maxwell House plant. There is no evidence upon which to conclude that he had any control or authority over the handling of the Anchor Hocking truck.
A.G. Horton, an expert witness for plaintiff, examined the Anchor Hocking truck one month and six days after the accident. He started the engine, pumped the air pressure in the brake drum up to 105 pounds, then with the engine off and the trailer brakes applied ran a test for 20 minutes, from which he found that the brake drum leaked pressure at the rate of one pound per minute. He testified that a leak of that amount was not unusual and that the vehicle maintenance manual specifies a leakage tolerance of two to three pounds per minute. He testified that the trailer brakes would not go into emergency lock on a slow leak down but admitted that he did not examine to determine and did not know whether the emergency relay valve on the truck was or was not designed to operate on a slow leak down of air. He testified that with a normal load the truck, moving at 10 miles per hour, could safely be stopped with 40 pounds of air, and acknowledged that he was not qualified to give an opinion as to the minimum air pressure at which the truck could be safely operated.
John Kalter, an expert witness for defendant Anchor Hocking, testified there are two types of air brake emergency relay valves in use, one of which goes into emergency operation and locks the trailer wheels on a slow leak down of air and one that does not go into emergency under such circumstances. He testified that a relay valve of the latter type would lock the trailer wheels if the brakes were applied with less than 60 pounds of air pressure. On a hypothetical which assumed as true the within stated facts in evidence up to the point where defendant Bragg released the hand valve and a hissing of air was heard, he testified that such hissing of air demonstrated there was at that time sufficient air to hold the tractor brakes locked and to operate the system even if the engine had been cut off when the truck rolled forward. He further testified, in effect, that since the air brake system had sufficient pressure to hold the truck in place against the pull of the engine with the truck in gear, there was sufficient air pressure in the brake drum to stop the truck several seconds later. He also testified that with the engine running it required 2 to 2 1/2 minutes to build up the air pressure in the drum from zero to full operating pressure; that only one minute was required to increase the pressure from 40 to 60 pounds; and that when the brakes are released the air exhausts from the brake chambers rather than from that part of the air brake system which operates to stop the truck when the brakes are again applied; that in order to hear the escape of air upon release of brakes, at least 20 pounds of air pressure must be in the system and that such would hold the truck against the motor pulling with brakes on and would stop it on application of the brakes. He also testified that an air leak of one pound a minute is normal and does not indicate any deficiency in the air brake system.
The gravamen of the charge of negligence against defendant Anchor Hocking was knowledge of defective brakes on its tractor-trailer truck and actual or implied knowledge of the probable results of its conduct. Springer v. Morris, 74 So.2d 781 (Fla. 1954). It was the burden of the plaintiff to establish these factors by a preponderance of the evidence and failure to do so was compelling ground for a directed verdict for said defendant. Smith's Bakery, Incorporated, v. Jernigan, 134 So.2d 519 (Fla.App. 1961).
The only evidence to the effect that the brakes on Anchor Hocking's truck were faulty at that time is the uncorroborated self-serving testimony of defendant Bragg. The mentioned testimony of plaintiff's expert witness, Horton, is insufficient to warrant the conclusion that the brakes were faulty and, on the contrary, is altogether consistent with Anchor Hocking's contention that the overwhelming weight of the evidence shows that the braking system on its truck operated efficiently for all purposes material to the issues governing this unfortunate accident. As noted, plaintiff's witness Horton testified that his examination of the truck disclosed that the air pressure controlling the brakes was within the manufacturer's standards of tolerance.
It is the primary theory of plaintiff's case against defendant Anchor Hocking that its driver, Mullaly, for whose acts it is responsible, was negligent (a) in leaving the ignition key in the lock because it was foreseeable that one as inexperienced as defendant Bragg proved to be might undertake to operate the truck and negligently produce the resulting accident, and (b) that in any event the braking system on the truck was not functioning properly and that this was an independent proximate cause for the accident. I am persuaded that the evidence in this cause is wholly insufficient to support either of said predicates as the proximate cause of the accident, and that under such circumstances it is the duty of this court to vacate the judgment appealed. New Deal Cab Company v. Meyer, 139 So.2d 189 (Fla.App. 1962).
The issue here depends on whether the evidence permits the inference that it was reasonably foreseeable to Anchor Hocking that a person such as defendant Bragg, having no experience in the operation of such a vehicle and having no connection with the business upon which it was engaged, would at the time and under the attending circumstances attempt to operate it. It is not disputed that the ignition key was left in the lock, hence the issue of foreseeability in relation to proximate cause is one of law for the court to determine and I think that of necessity it should have been resolved favorable to the contention of defendant Anchor Hocking that such act was not a proximate cause contributing to the fatal accident. The applicable rule is found in Smith v. City Products Corporation, 147 So.2d 590 (Fla. App. 1962), Bryant v. Atlantic Car Rental, Inc., 127 So.2d 910 (Fla.App. 1961), and Lingefelt v. Hanner, 125 So.2d 325 (Fla. App. 1960).
In the Lingefelt case an unauthorized person who took possession of and drove the defendant owner's automobile in which the ignition key had been left was involved in a collision with the plaintiff who sued the owner for damages. The District Court of Appeal, Third District, aligned itself with the majority view in holding that the determinative issue was one of causation and that the willful act of the unauthorized driver was an independent intervening cause which operated to relieve the owner of liability, citing numerous cases from other jurisdictions. The court said:
"While it is true that proximate cause is normally a question of fact to be submitted to the jury, however, where the facts are not disputed and are susceptible of only one inference, this issue becomes one of law for the court to determine." (Emphasis supplied.)
The same rationale is found in the Bryant and Smith cases, supra. The Smith case is clearly distinguishable from the case on review because the evidence there positively reflected that the driver of the truck involved was conscious of the likelihood that his guest passenger, a 15-year-old boy, might undertake to operate the vehicle on some occasion when the driver left him alone with it; that he twice cautioned the boy not to do so, but nevertheless left the ignition key in the truck during an absence, whereupon the boy did operate the truck so negligently as to produce the accident resulting in the suit. Under such circumstances it is obvious that the question of foreseeability was one of fact and as such was properly submitted to the jury for its determination.
In the Bryant case the Second District Court of Appeal affirmed a final judgment for defendant, Atlantic Car Rental, Inc., entered on the pleadings in a suit wherein it, as owner of an automobile leased to its co-defendant, Robert Skinner, was charged with negligence arising from the fact that Skinner left the automobile parked and unattended on a public street with the keys openly displayed in the ignition lock, which automobile was stolen by a youth who negligently drove it into one owned and operated by plaintiff's husband, killing him instantly and destroying his car. The court, speaking through Judge Kanner, adhered to the decision in the Lingefelt case and laid down the following rule in line with what it characterizes as "the near unanimity of the holdings":
"* * * in the absence of a prohibitory statute or ordinance, an owner or operator of an automobile who leaves it unattended with key in the ignition switch is not liable for negligent operation of the automobile by one who steals it."
It is seen, therefore, that there is no difference in the legal effect upon the owner resulting from the act of one who operates such an automobile without his authority but with no intent to steal the vehicle, as in the case on review, as compared with one who operates it in the course of stealing same.
I do not think the evidence in this case is susceptible of any reasonable conclusion or inference that Mullaly, the driver of Anchor Hocking's truck, by leaving the ignition key in the lock evidenced an intention to permit a person having no experience whatever in the operation of such tractor-trailer type of truck, equipped with air brakes, to operate the same, or had reason to suspect that one such would attempt to operate it; more specifically, that the evidence does not permit the inference that it was reasonably foreseeable to Mullaly that a person having no more qualifications than Bragg to operate the truck would at that time and place and under the existing circumstances attempt to do so. Indeed, taking the evidence as a whole, it is clear that the type of vehicular traffic normally found on the Maxwell House plant premises was such that there are only two reasonable inferences to be drawn from Mullaly's act of leaving the key in the truck: (1) That it was the custom to do so in order to permit a capable person engaged in similar work to move the truck if necessary or expedient to do so, hence that act is not negligent per se. (2) That regardless of custom, Mullaly anticipated that some experienced truck driver might wish to move the truck as an incident to the hauling and unloading operation being conducted on the premises, and by leaving the key in the lock impliedly authorized such person to do so. This inference can be drawn only in consequence of the following colloquy in the course of the cross-examination of Mr. Mullaly:
"Q. In other words you were aware you were blocking the gate?
"A. That is right.
"Q. At that time you left the key in the switch, did you not?
"A. I certainly did.
"Q. And, the reason you left the key in the switch, you realized that the tractor-trailer might be in somebody's way, didn't you?
"A. That could be one of the reasons. In other words it was normal procedure at that time.
"Q. That was the reason wasn't it?
"A. I answered once before that was the reason for it."
I am unable to extend the import of that testimony so far as to hold that the jury was warranted to conclude that Anchor Hocking's driver impliedly authorized anyone who found the Mullaly truck impeding his way to remove it. I suggest there is nothing in it from which to logically conclude that the driver, Mullaly, intended to permit or could have reasonably foreseen that a person having no experience in the operation of such a vehicle would be so reckless as to abruptly undertake to do so.
It seems obvious that if we are to maintain the rule, as I think we should, that the owner's liability is not to be extended to include circumstances where he has left the key in a motor vehicle on the public ways and it is stolen and involved in an accident, there is no basis upon which leaving a key in a truck for the purposes reflected by this case and with the result here obtaining should operate to create liability on the part of the owner. To do so places an altogether impractical and intolerable burden on persons engaged in a normal business enterprise such as here involved.
For the reasons stated, I am of the opinion that the trial court erred in denying defendant Anchor Hocking's motion for a directed verdict made at the close of all the evidence. Even assuming there is some scintilla of evidence upon which the trial court could have properly submitted the case against Anchor Hocking to the jury, I am also of the opinion that the probative force of the evidence was such that the verdict indicates the jury was swayed by passion or prejudice and that the ends of justice require that a new trial be granted to said defendant. I would affirm the judgment as to defendant Bragg.
I therefore dissent.