*1 SO Appellants, P. McKINNEY ux.,
C. CHAMBERS, Appellee. Charles 7299.
No. Appeals of Texas. Moss, Carter, Gallagher, Gerald W. Jones Texarkana. Dallas, Ramey, Sulphur Magee, Ramey & May 16, Springs, appellants. for 1961. Reid, Kendall, E. Jr., David M. Rust Rehearing June Denied 1961. Simmons, Thompson, Knight, Wright & Dallas, for DAVIS, Justice. Plaintiffs-appellants, McKinney C. P. wife, McKinney, defendant-ap- Octo Chambers, ellee, Charles to recover dam- ages injuries for Mc- sustained Octo Kinney. Appellants alleged his automobile ignition key unattended with City parking therein lot in open at a when such lot was time business, and that thereafter a thief stole it automobile into and driven McKinney, resulting injuries Octo person. her answered with a general denial, and filed a thereafter motion summary judgment. Judgment appellee upon motion, rendered for appellants which appeal bring their fected forward points of error.
There were no affidavits or sworn
pleadings in the
ap
case. The trial court
parently
the issues as a
matter of
cases,
law.
In such
sworn
were
unnecessary.
Gardner v. Martin et
Sp.Ct.,
By points appellant takes allegations their raise a sufficient to fact issue as to whether and whether any, negligence of cause of the sustained McKinney. Appellants posi- take the Octo *2 31 impression “There to tion that this is a case abundant has been indicate there if vehicle has in Texas. It seems that a motor import parked public in a street and left one other case of like Appeals in the keys ignition unlocked with the the El Paso Court of Civil support and switch Humble Oil this is to a case of Lollis et al. v. sufficient r., part e. Co., finding negligence 249 w. of the of the Refining on person building parked and of a who car.” In that the owner the sought recovery for two individuals who support cases are Several cited in of this personal injuries, the Humble Oil place statement. At another the annotator agent an Company result of Refining as the says: filling a company leaving a truck at of the checked, battery and station to' have the application “If the principles of these installed, bad, battery good, and if a new puts the situation had recharged. After station closed public motion a vehicle a left on street business, delivered to truck was ensues, damage major- and a or agent the com- filling station of ity of the cases have taken During in it. pany key and the was left prevented that the of act the thief a stolen night, the truck was and the finding damage that the case was tried be- any occurred. The proximate prior neg- result of court, plaintiffs fore and he denied the ligence in the manner which the Appeals recovery. a of least, Court Civil parked, or, vehicle was at court, of the trial affirmed the legitimately the trier of could denied a writ of come to conclusion.” affirming n. r. e. In support There are cited in cases nume.rous court, Ap- Court of of the trial of statement. peals position that the truck took the instrumentality, there was dangerous a a car, of the stole thief that part non-delegable duty of on the driving it, sep- and his prevent incom- negligence, distinct arate and acts of petent, inexperienced, or unauthorized any negligence with unconnected sons, requir- entirely without merit and appellee. though leaving ed no discussion. Even keys with the
the truck at the station in it There seem negligence imputable yet duty presented appeal, and foresee support there was no evidence which ability. Negligence is the failure to observe negligence was a a that such legal duty, and in of a absence such damages. They cause further of legal liability through can arise no took the the statement negligence. Watts, Westbrook al. v. sup- evidence that would did not show r., Civ.App., e.; w. n. r. appellee. port judgment against the a Wimberley, Tex.Civ.App., Toombs duty requirement n. w. h. The variety holdings are a through- There negligence 30b, action is a discussed in question on the the United States out Tex.Juris., Sec. 5 as follows: cause, prior negligence proximate observe, “Negligence is failure to parked, car unlocked and leaving a with the constitute, Moreover, legal duty. keys Some that such in it. states all, negligence be a per se, there must viola- negligence of law. very person issues tion of a owed to the negligence In A.L.R.2d claiming ground negligence. on the pro place con are At one discussed. hand, duty exists, the other when says: On no the annotator as liability a matter of law. Under arise on account legal can no issues fact negligence.” negligence are raised that would constitute ordinances in- no statutes or There are as a matter of law No *3 case, though some states and in this volved whereby of fact could be made pro- for the laws have enacted such cities appellee damages. would be liable A property. case people tection appellants, owed injured by person being involves that reasonably and he could foresee the not by a being negligently driven Thus, law, the injury. judg Insulation, Inc. Bennett v. Arctic is thief the trial is correct. Hartford ment of court Alaska 537. The F.2d et Company, Coolidge-Locher Tex.Civ. v. not chosen to the state had held that court h.; App., n. w. respect in new establish Hendrix, Railway & v. Tex. Terminal Co. cars, judgment and affirmed the keys in Civ.App., 261 w. h. n. n court. the trial the trial court is af- firmed. in require that order Texas courts have to be held to been
for a defendant plaintiff CHADICK, must Chief Justice. foreseeable. 30 have been Tex.Juris. agree I of the trial court affirmance reads as follows: Sec. judgment. may “Although one’s act or omission damage, he is not
have caused FANNING, (concurring). Justice responsible ‘negligent’ if be held to the harmful appears could not foreseen impres- he This be a case may not Texas, or situation. He occurrence sion in the State of responsible have been held to passed upon be here involved have not in evidence failed to disclose only the facts by the of Texas. reasonably foreseen he could have approaching case Texas in this express- injury as the is rule often is Lollis al. Humble Oil case & Re- Company, fining Tex.Civ.App., 285 ed.” ref., e., yet the facts wr. in that distinguishable case are from the pleadings in Under this is dictum the case bar. There raised foreseeability as to the no issue case, supra, to the Lollis favorable possible the car theft of or the in appellee in case. It also seems that McKinney. It can be jury to Octo held greater weight out of state reasonably foresee supportive appellee’s in this car, negligently would steal his opinion case. While DAVIS it, injure party, Justice third drive completely case is not free purpose liable. that this is in view of the fact a sum- doubt mary judgment my it is however best must this case It whether reached negligent alleged against ap- the result said opinion is fact, as a matter of correct. pellee