*1 paid support to her for be payments of her minor child. Said semimonthly
shall be made installments of days each on $75 15th the 1st and month, each as provided original in the decree. The reduction alimony support amount of the allowance made thus shall be as of effective the date of the rendition of the appeal from which decree was taken; and the decree of the lower court thus modified is affirmed. appeal adjudged against of this costs shall be
appellant.
Modified and affirmed. McGehee, C. Hall, Jand Holmes, Lee JJ., con- cur. v. Milner Company
Permenter Chevrolet No. 40285 December 2d 243 CO00CO . *2 Montgomery, appellant.
Barnett, Jones Jackson, & for Lipscomb, Ray appellee. Barksdale, & Jackson, *3 J.
Hall, plaintiff appellant circuit this suit filed The recovery damages appellee against for the court by personal injuries him when an automo- sustained easterly riding in direction on in which he was bile by Capitol City a new was struck Street Jackson by appellee and driven Chevrolet automobile owned northerly in a on West C. T. Butler direction one appellee-defendant filed demurrer Street. lower court and was sustained declaration which plead plaintiff, having further, suffered declined *4 appeals of the suit and here. dismissal on the de- case was decided declaration Since and the allegations of the material court, murrer in the lower appel- alleges It that the control here. the declaration along Capitol riding in Street lant was automobile person operated by being in a careful another which was the new Chevrolet auto- manner, and that and reasonable by by appellee T. Butler was driven C. owned northerly mobile rapid at a rate on in a direction West Street failing negligent speed in Butler was that said of and keep control and under reasonable the Chevrolet to disregard keep law failing lookout in of a reasonable operation light disregard a traffic at said of and charges further that declaration intersection.
389 appellee negligently had left said automobile Chevrolet parked and unattended on the north side of South Street City directly Jackson across street front place appellee, ap- business and that the pellee, through agents negligently its servants, and had ignition failed to lock the doors or the on said car and ignition key failed to remove therefrom in violation of Section 8219 of the Code of 1942; result said C. T. Butler said been had induced away, enter said Chevrolet car and drive it reason- being able inference that the said Butler stole said appellee reasonably automobile, should have probably by foreseen the said car taken would probably injuries intermeddlers and would result public, including plaintiff, appellee’s and that the proximate concurring awas direct and injuries damages plaintiff-appellant. to the charged permanent The declaration further serious in- juries plaintiff. to the provides: person 8219,
Section of 1942, “No Code driv- ing charge permit or in aof motor vehicle shall it to stand stopping engine, locking unattended without first ignition key, removing standing or when upon any perceptible grade effectively setting without turning the brake thereon and the front wheels to the highway.” curb or side appellant primarily upon
For reversal relies the case App. of Ross v. D. Hartman, C. 14, Fed. 2d L. R. 158 A. decided the United States Court of Appeals for the District of Columbia on November Supreme 1943, certiorari denied Court of the United on March States 27, 1944, U. S. L. Ed. 1080, 64 S. Ct. is well reasoned case but contrary great weight authority which is country. to the in this *5 per
We have held that an automobile is not se dangerous instrumentality person and that a who vol- untarily lends his automobile to another is not liable persons upon damages auto- while the third
for inflicted person being operated it be unless such mobile is by the reason- knew or exercise of shown that owner person he to whom have known that the able care should have car a reckless and unsafe driver. We was lends being an automobile is driven also held agent where employee the owner is not liable owner, or person damages injuries unless at to third employee acting agent was or time of the accident employment. leading scope within the of his One question Theisen, v. on this is Anderson cases Supreme Court Minn. 43 N. wherein the 2dW. very said facts, in a on the Minnesota, similar as follows: Minneapolis City Charter 9:1-1114.1,
“Section p. (Perm, ed.) (1949) at in force Ordinances parking pas- ‘Every person time, reads as follows: alley any public senger in the automobile on street City ignition, and take the lock remove shall him.’ same with ‘‘ presented principal for decision is whether issue city ordinance the violation of was cause of decedent’s death.
“In 227 Minn. 34 N. Gates, W. Wannebo presented situa- this court was with almost identical with the defendant left his car unlocked There, tion. keys ignition in violation of this same ordi- switch stolen, car hours after nance. The was and several place from the thereof it and about miles theft five plaintiff’s negligently into automobile. driven We plaintiff’s injury giving were the acts held that rise charge responsibility. defendant with too remote What distinguishes decision from the case bar the Wannebo at plaintiff’s alleged is that here flight during from the scene of the occurred decedent question— with the crime. are therefore confronted We specifically in the refused to Wannebo which we decide
391 allegation plaintiff’s case—whether of that death flight during occurred of the intestate from the scene * * * crime of constitutes action. primarily problem “We are with the concerned here ‘intervening of that efficient cause’. Plaintiff contends flight theft and and in addi- were foreseeable that, anticipated it tion, apprehension be could of that nervousness fear part on the would cause them thieves carelessly negligently. to drive provision
“We not here need whether the decide Minneapolis quoted traffic above was ordinance de signed protection particu for the of that of members public plaintiff’s lar class of the of which decedent was a pointed purpose member. As the trial court out, the largely protection the council was of car owners proper themselves an aid law enforcement discouragement pilferage. thing It theft and is one say prevent designed to that the ordinance is thefts quite say preventing another to at that aimed negligent driving from the of the theft. scene Sullivan v. Griffin, 318 Mass. 61 N. E. 330. But for the 359, 2d purpose only, assuming of this the violation negligence, opinion of the ordinance was we are of the negligent proxi driving the thieves was. mate cause of death decedent’s and that any, eyes if too remote in the law defendant, regarded as connected as cause therewith. The weight authority T. Slater v. C. effect. Baker 261 Mass. N. 424, 158 778; E. Sullivan v. Grif Co., supra; fin, N. E. Levin, Galbraith v. 323 Mass. 81 255, 560; v. 292 N. 54 Bond, 574, 691; 2d Walter T. N. E. 2d Harrington, App. v. 269 2d 891, Wilson Div. 56 N. Y. S. 157, 295 N. 667, affirmed Y. 65 N. E. 2d Lotito v. 101; Kyriacus, App. Castay 272 Div. 74 N. Y. 2d 599; S. Contrary App., Katz v. &Besthoff, La. 76. Ltd., Ostergard decisions inferior Frisch, courts are v. App.
Ill. N. 537; E. Hartman, 78 U. S. Boss
App. L. R. certi 158 A. 139 Fed. 2d D. C. *7 1080; L. 88 Ed. 790, 64 S. Ct. denied, 790, orari 321 U. S. App. 207, 144 D. 79 C. Claxton, Inc., R. U. S. Schaff v. W. App. D. 83 Schaff, Inc. v. U. S. F. R. 532; Claxton, 2d W. F. 271, C. 169 2d 303. general malicious, or criminal wilful, a rule,
“As Saugerties v. Bank chain of causation. act breaks cf. 904; Y. 141 N. E. 425, 236 N. Co., & Hudson Delaware Kennedy Hedberg, Rob- 302; N. 76, Minn. 198 W. v. 159 A. L. 821, 33 N. 2d 491, v. 226 Minn. W. Butler, inson 770; 43 N. W. Rondorf, Minn., 2d 143; R. 2d Goede v. Hence, 448. we hold Restatement, Torts, Sec. negligence driving automobile in into the of the thieves intervening plaintiff’s efficient cause decedent was an interrupting between defendant’s the chain of causation keys ignition leaving switch his act plaintiff’s decedent.” death acci- who caused this Butler, It is admitted here negligence it Butler’s a criminal and that was dent, was foregoing and, as said inflicted intervening effi- of the thief was case, the interrupting between chain of causation cient ignition leaving in the act the defendant’s in that case. the death of the deceased switch and 359, 318 Mass. Griffin, In the case of Sullivan Supreme of Massachu- Court 330, N. E. Judicial 2d “By very Article one, this said: in a case similar setts, regulations rules of the traffic IV, 7, Sec. provided: city driver ‘No force, was of Boston then following- any stop, park a vehicle in or shall stand except necessary places, other conflict with to avoid when compliance pedestrians, with the or with traffic, or signal: sign police traffic or officer or direction * * penalty Upon any ex- of not There was a sidewalk.’ ceeding for violation. $50 only but ordinance violated defendant
“The (Ter. Ed.) provisions 13, L. c. Sec. of G. also the which, person having charge ‘No read, control or of a any motor vehicle shall snch allow vehicle to stand in way locking and remain unattended or without first maldng (Ter. Ed.) it fast.’ See, also, G. L. c. Sec. penal 7. ‘The violation of a of a or ordi statute valid regulation nance, rule as to evidence of consequences prevented.’ all that were he intended to Kralik v. LeClair, 315 Mass. N. E. Nothing
564, and cases cited. is added the defendant’s knowledge might thieves take automobile if undoubtedly unlocked. left Theft of the automobile consequence prevented by intended to the statute regulation. quite if not the traffic But it is another *8 thing say injuries through opera sustained by tion of the automobile thieves in the circumstances consequences pre here disclosed were intended to be ‘ “Negligence consisting part vented. in in whole negligence, legal violation of like law, other is without consequence contributing a unless it is in cause jury.” Baggs v. 293 E. Hirschfield, 1, 199 N. 3, Mass. Kelly Hathaway v. 136, 137. Bakeries, Inc., 312 Mass. 44 N. E. 297, 299, 654, 2d 655. v. 312 Durland, Burke 292, Mass. 44 E. 291, 293, N. 2d 655. Falk v. Finkel See 268 Mass. man, 524, 89; 168 N. E. 527, Bellows v. Wor Storage Co., 297 N. 588. 188, 196, cester Mass. 7 E. jurisdiction injuries It in is that the here settled this proximate negli a were not result defendant’s gence. by governed case bar is v. T. C. The at Slater Baker 158 Co., 424, 778, Mass. N. E. which was by Malloy v. 37 N. Newman, 269, overruled 310 Mass. unregistered relating E. 2d 1001, decision to an auto any ground mobile. Nor there of distinction on is proximate in issue of cause the Slater fact might was left it automobile seen wheré employees. plaintiff’s the defendant’s contentions go making far an insurer toward the defendant as to consequences every accident in which his automobile original operated
might become involved while possession. is a This thieves or their successors open, upon decline if it were we even which, course Torts, Sec. Restatement: Am. Law Inst. See embark. g.” comment 447, directly point is Minnesota case
Another
h was unnecessary upon to enter discussion said: “It legal responsibility accidental the doctrine upon act or man his unless be fastened cannot injury. proximate failure to act was the through injurious only became If act or omission wrongful act is another, of injury last act some distinct imputed it. will be and the cause, applied Martin, v. in Peterson was The doctrine Minn., v. Childs Standard 195, 813, 164 N. W. point 182 N. cases 149 Minn. W. Co., Oil legal connection was no causal In a sense here. between there stop Hedberg’s motor and ac failure to merely an incident the se cident. His omission Upon preceded quence accident. of events Minn. McDonald, Denson case, this feature Robertson v. See, also, N. decisive. 175 W. Spitler, 190 N. 992.” 153 Minn. W. *9 Minn. 34 N. 2d Gates, 194,
In v. 227 W. Wannebo approval Kennedy quoted from v. court with 695, ‘‘ authority supra, weight Hedberg, and then said: The jurisdictions that, is to the effect situations in outside actor is insulated ours, similar intervening of an cause.” efficient act Lyttle, v. 11 N. 254, In the case of Saracco J. S. 78 Superior Jersey A. of New 288, Court said: Lyttle any provision “No claim was violated made that aof statute or ordinance. 158A. L. R. 1374. Note, See present of the case,
“Under facts was not reas- onably anticipated an not intermeddler would only away negligently car drive the hut also would later operate leaving it. The of the automobile unlocked opportunity taking by afforded an for the unlawful merely hut Padula, this was not the and circumstance proximate Responsibility cause of the collision. accident cannot attach to one unless his act or failure to proximate injury. act was the cause of the handling of the cause car driving collision was unskillful Padula. The intermeddler, plaintiff, intervening into the vehicle of anwas interrupting efficient cause the chain of causation be Lyttle’s leaving key tween defendant act ignition (whether switch such act in itself con negligence) plaintiff. damage stitutes and See Restatement, Torts, 447, Secs. Cuff Newark 448; v. Company, (Sup. New York Railroad 35 N. J. L. 17 1870), (E. 1871); Ct. 35 N. affirmed J. L. 574 & A. Mor ,
ril v. 104 N. L. 142 A. 337, J. 60 A. L. R. Morril (E. 1928); & A. Breker v. Lakewood Co., Water (Sup. 1934); 174 A. 12 N. J. Misc. 721 Ct. Anderson (Sup. v. 1950), Theisen, N. W. 2d 272 Ct. Minn. ’’ cases cited therein. (La.)
The case of Midkiff v. Watkins, quoted approval Maggiore Laundry with from & Dry Cleaning (La. App.), Service, Inc., 150 So.
follows: can be no doubt
“There
the final
to the initial
traceable
because it
fault
cannot be denied
that, had the
withdrawn,
been
re-
as the ordinance
quired,
injury.
there
have been no
would
fact
But that
alone does not render defendant
as the
because,
liable
Supreme
Court
the United
in Atchison,
States said
Topeka
Ry.
page
& P. S.
Co. v. Calhoun, 213 U.
29 S.
sequence
321, 323,
S. Ct.
“Assuming that for the sake of leav- ing ignition negli- switch constitute did gence part defendants, on the are still inclined we to believe that under the circumstances the instant intervening act of was sufficient case, that Wilson sequence to break the of defendant’s so as proxi- intervening as the efficient or establish cause proxi- mate accident. think cause We test cause is whether the facts constitute continuous mate together they linked be- succession events so that come natural whole or whether the chain of events is they independent, become final broken and the so result is probable consequences natural and primary cause. Under the facts as in this case, related intervening we are convinced which there was an sequence alleged negli- defendant’s broke any. gence, if To hold the liable in defendants this go making far towards them as to case would insurers every consequences which their car accident operated by might become involved while thieves or their possession.” successors approval again quoted with
The Court from the everyone Maggiore “It is a familiar doctrine that case, everyone justified assuming obey else will laws.” And the Court then said the Midkiff case: *11 “Certainly could not we hold that defendants could reasonably car foresee their be It would stolen. everyday especially an is in occurrence, small communi- park keys ignition ties, to a car with in left switch. Although firmly protec- that, we believe the owner’s practice keys good it tion, ais to from a remove parked failure to so car, his do would not constitute damages so as to render him liable for com- party by to a stealing mitted third a thief in his auto- Castay In mobile. v. Katz Besthoff, & where City the theft in occurred of New court Orleans, the refused to hold owner of the liable. stolen vehicle It ais well known of theft of an fact crime likely larger automobile is more to occur com- urban munities than rural Furthermore, communities. during
crime that case, occurred Mardi which is Gras, period fraught with crime and mischief.” directly point Another we consider Stanley, is Richards v. 271 P. 2d 23, decided Supreme Court California in in which Court said: problem by pointing
“The out that not answered negligent driving foreseeable there risk of on the part negligent thieves. There is foreseeable risk of driving anyone whenever drives himself his car or lends to That risk has been so un- another. considered merely negligent however, that an reasonable, owner is because he car himself, another, drives lends his to knowledge part absence of on his own or incompetence. leaving Moreover, the other’s in the car the owner does not that it driven, assure will be as he he does when lends it another. At most he it creates a risk that will stolen driven. The risk negligently materially that it will be driven is thus less than in the case which his car owner entrusts very purpose another for the of the latter’s use. problem presented
“In one tlie involves sense duty manage owner of an automobile so not to create of harm to It unreasonable risk others. emphasis, Stanley *12 bears that left the however, when Mrs. position car in a it was harm no one, where it could harm occurred until it had been taken thief. no a duty prevent Thus a to such harm would involve more just duty than duty to control the would involve a car, it prevent person. Ordinarily,,
to action aof third special relationship in the however, absence of a between parties, duty there is no to control the conduct of a person prevent causing third him as to from harm to so Bing, another. v. Lane 202 Cal. 262 P. 590, 592, 318; see, D’Angelo, App. Ellis v. Cal. 253 P. 2d Harper 675; Restatement, Torts, 315; Kime, Sec. Duty to Control the Another, 43 Yale Conduct applicable L. 886. Moreover, J. this rule is in cases even person’s possible only in which the third conduct is made relinquished because defendant control of his has property person, to the if third at defendant least person no has reason in- to believe third competent manage to Thus, it. as noted an auto- above, ordinarily negligent mobile owner is not if lends his he except special car to in another; certain circumstances, may rely duty discharge a lessor on his lessee to to premises reasonably maintain safe condition for persons protection, benefit of entitled to such see, Restatement, Torts, 355-362; Harris, Secs. Groodmanv. supplier 254, 261, 265, Cal. 2d 253 P. 2d and a 447; building lumber is to entitled assume that contractor negligently obviously piece will not select an defective support of lumber to use as a for a scaffold. Stultz Co., Benson Lumber 6 Cal. 2d 59 P. 2d 688, 694-695, 100. present Stanley “In the case Mrs. did leave her might reasonably car in front of a school where ex- she pect irresponsible tamper to with it, see, children Re- illus. nor statement, Torts, Sec. did she leave charge passenger of an as did defendant intoxicated Bolling, App. Morris v. Tenn. 218 W. 2d S. By leaving the at 754. her car most increased she might risk that it he Even if have stolen. she should theft, foreseen the she had no reason to that the believe incompetent thief would driver. In view of the he negligent driving fact risk she created might intentionally less than risk created she have negligence by entrusting without another, her car light protect duty of the rule that she owed no plaintiff resulting from harm from third activities persons, duty we conclude her to exercise reasonable management care compass of her not en- automobile did duty protect plaintiff negligent from the ’’ driving of thief. *13 The State of New York inis accord with other the authorities which particularly cited and we call attention we have App.
to the case of v. Bond, Walter 267 Div. 45 779, 378, N. Y. in S. which the court said: by plaintiff-wife damages “Action to recover for personal injuries by suffered her when a taxicab was by a sidewalk, driven onto her for loss husband of expenses. parked services and cab had been The at ignition key position, the curb; was left in the door pas- unlocked. In the driver’s absence intoxicated senger visiting, of came out office that he the had been cab, to motor, returned car. the started the and drove the Injury plaintiff-wife during the this un- resulted authorized use of automobile. the disputed, questions not
“The facts are and no of presented upon appeal. proof fact are the Under the appellant may charged negligence not the with result- damages by ing plaintiffs.” in sustained the the This in was 292 N. 54 574, case affirmed Y. N. 691. E. 2d point Kyriacus, Another New York case in is Lotito v. App. 272 Div. 74 N. Y. in S. court the appeal proximate “In said: now before this court, handling was the unskillful cause accident by leaving unguarded automobile of car thief; contributing to the hut theft, reason unlocked was of the collision. The not use car thief intervened between the occurrence negligence the unskill- of the defendant-husband and ’’ driving ful car the thief. Ostergard v. referred here- Frisch, decision The specifically in Cockrell v. Sulli- inabove, was overruled App. van, 344 Ill. N. E. 620, 101 2d 878. appellee appellant argues guilty of was
negligence
leaving
car unattended with the
may readily agree
con
switch and we
with this
Tombigbee
Power Assn.
tention but
Elec.
case
Gandy,
(452),
v.
said:
216 Miss.
So. 2d
we
“But
alone
even where
is shown
fact
recovery
damages
affords no
unless
basis
appears
in
further
from
direct
reasonable
contributed to
evidence
proximately
ference that such
damage.”
Burge,
N. E.
In the
of New
&
R. Co.
Orleans
ease
(310-311), 2
we said:
Miss.
any
merely
enough
defend-
“It is
ring
negligent.
ant
the bell or blow
The failure
impose liability.
did,
If it
does not of itself
whistle
nobody
sight
him could
then a man
with
stone-deaf
attempt,
not so
if it could
recover.
does
even
The statute
*14
ap-
constitutionally
upon a
so—however much
casual
do
may
feeling
contrary.
proach
this,
a
to
In
there
be
the
necessary to a
on ac-
cases,
in all
it is
cause of action
as
count of the
negligence that the latter shall have been the
contributing,
proximate,
another;
a
cause of
to
or
contributing
proximate
that it shall
a
or
order
be
produc-
a
foregoing
factor in
cause must have been
substantial
* * *
particu-
injury.
ing
The
is
the
statement
negli-
larly applicable in those cases where the actor’s
precautions
gence
in the failure to take certain
consists
required by
protection
which are
law for the
of another’s
person
requirement
ring
or
of which
chattels,
to
public crossings
the bell or blow the
at
an
whistle
’’
example.
Burge
It will
noted
case
with
he
that
dealt
violation of a statute and the court
there
said
liability.
impose
violation of the
does not of itself
statute
of E. I.
Ladner,
The case
DuPont de
& v.
Nemours Co.
(403),
of situation and injurious consequences others, about accident with liability, the first actor is the condi- relieved because merely tion him created was circumstance proximate 38 Am. cause of accident.’ Jur. * * * par. Negligence, 72. “ ‘ negligence complained It is not material whether the duty imposed by in an action violation of imposed by law common or the violation of one requirement ordinance, so far as concerns statute proximate have must been the * *!* plaintiff’s injury recovery. warrant a If the statute or ordinance the defendant violation accident, was not direct and cause of the *15 ’ complaint injury he is not liable for the of which is made. par. Negligence, 38 Am. Jur. 166.” It bewill noted that in several of the cases hereinabove jurisdictions cited from other though that was held even may negli- the owner of automobile have been the gent leaving car unattended with the the act switch, nevertheless the who thief stole negligently damage party causing car in to a third was an independent intervening efficient cause. Corp.
In case of Watts, Public Service 168 Miss. (250), question 150 So. in connection this with ‘‘ injury put we If said: the force which causes is operation negligence or motion what is progress defendant, and that or motion force is still or operation identity continuity, and has not lost and "its injury when such, occurs, then puts injurious operation proxi- force in is independent mate cause. But when a new and in- force tervenes between the defendant and independent power and new force or or agency strength opera- then there sufficient or supersede substantially force to tive overcome and original say, force or if motion, is to the new and independent power actually or force an efficient force power, then the new force becomes original having superseded, cause, cause, been becomes the remote cause. See the review authori- ties the recent case, Southern Pacific Co. v. Ralston (C. A.), C. F. 1026.” 2d Mississippi City
In
case of
Inc.
Lines,
v. Bul-
(639-640),
lock,
“Although proved, posi- it was as stated, tion in which the bus stood was violative of Section
403 Chap. recent case, Laws construed as (Miss.), Teche Inc. v. 12 not Lines, Danforth So. yet reported report, opinion we are State proximate injury, this was not and we cause during dispose shall reach and of the other contentions opinion. the further course of this
“Although, may yet negligent, if act another, one he ing independently voluntarily, puts in motion anoth and efficiently intervening er and which thence leads cause proxi sequence injury, the latter is unbroken original negligence relegated to the mate cause and the is position of a a nonactionable and, therefor, remote Negligence merely cause. which furnishes the condition upon injuries or but does received, occasion which are put through agency in not juries in motion or which the proximate thereof. inflicted,
are is not the cause question is, did facts constitute succession The events together or whole, linked a natural
so as make intervening independent was there some new and cause alleged wrong injury? Jur., 38 Am. between the p. and Thompson Mississippi Co., R. 175 Miss. 702; v. Cent. say authorities, 547, 554, 166 353. And so all So. among striking v. illustration, is Bufkin which, . " & N. R. 161 137 517 Co., Louisville Miss. Kroger 198 Miss. Gro., Co.,
In the case of v. Stewart (379-380), the Bullock case we cited So. 2d approval with said: and acting yet
“Although may negligent if another one wrongfully independently or volition, and of his own puts intervening negligently in motion and cause another efficiently sequence which leads unbroken thence proximate the latter is position- original negligence relegated a to Negligence and, therefore, remote nonactionable cause. merely upon which furnishes the condition or occasion put injuries in motion received, which does are but negligent wrongful agency through injuries are is not inflicted, canse Compare Mississippi City thereof. Bullock, Lines 630, 13 Miss. A. L. So. 2d R. 1199.” 34, 145 great weight
In view of fact that authority jurisdictions against from other the conten appellant, tion of the view of the fact that our *17 repeatedly upheld principle Court has the that even though may negligent, the defendant have been neverthe independent intervening agency proxi less if was the injury plaintiff mate cause of the inflicted, the can re upon original negligence, cover the act of arewe opinion, though appellee of the that even in the this case may guilty negligence violating have been of in prohibiting leaving statute of car with unattended key in switch, act of the nevertheless thief running light speed in a red aat reckless of anwas rate intervening agency complained which caused accident superseded original negligence of and act of of the appellee. opinion It is our therefore declaration appellant on its face shows that the has no cause of action judgment sustaining and that the in of the lower court demurrer to the declaration was correct and should be affirmed.
Affirmed. Kyle, Ethridge McGehee, J., Roberds, C. and and Gillespie, JJ., concur. dissenting.
Holmes, J., majority opinion The holds as a matter of law that though appellee may guilty negli- even have been of gence violating prohibiting leaving the statute ignition unattended car and with switch, running light nevertheless, the act of the thief in a red speed agency intervening aat reckless rate of was an complained superseded which caused the accident and original negligence appellee. act of of the I with am, bring myself deference, unable to with accord this view. authority weight cognizant I am fact that the supports majority jurisdictions view. in outside opinion, majority pointed in the other out hand, On the authority respectable to the there well reasoned jurisdictions. contrary solution other outside Our question fundamental be in accordance with should the principles our with
announced our own decisions and system jurisprudence. own question appellee’s negligence is conceded. The original at the time of the commission
is whether reasonably appellee have act should probability anticipated the car foreseen get might thief, be stolen that the effort away than reasonable care it, with would less exercise thereby injury driving If to another. such it and anticipated, original reasonably then the should have been bring that of thief to act of combined with contributing became a about *18 notwithstanding injury. in- This is cause of the true have if such should tervention of thief’s firmly principle reasonably anticipated. em- This been in our own decisions. bedded 758, 126 156 Miss. Albritton,
In of D’Antoni v. the case liability negligent discussing for Court, 836, So. that the be of such character act must act, said: “The reasonably anticipate person doing that some it should probably The injury therefrom.” will result another to liablity inescapably attaches true that of this is converse to person of character that if the act such the actor injury reasonably anticipate doing some it should every probably therefrom. It is not result will another negli- original intervening act of that insulates cause gence. 150 181, 168 Miss. Williams, of Russell v.
In the case suggestion 181, 168 Miss. overruled, of error 528, So. in of if occurrence held that 372, Court
So. anticipated reasonably might tervening been have cause interrupt original will the connection between the injury. cause and the Skaggs,
In of Oliver Bus Lines case 174 Miss. independent 9, 164 So. the Court held that an inter- vening interrupt cause which will the connection between original the not have been is a cause which could
reasonably foreseen defendant while exercising due care. Baking of et al v. Solomon, Continental Com-
pany, 172 Miss. an action involved damages. stopped The driver of a truck car on his highway night equipped of side when at it was not light required with a rear red statute. A injuries. ran motorist into the truck and It sustained was contended in that case that the driving motorist his was the sole vehicle cause of the collision. The Court said: “One of the purposes requiring the statute automobile to be equipped light prevent with a rear red collisions of the character here, and the driver an automobile vio- lating probability this statute should realise driving approach one another automobile him would observing requirements the rear without from himself (Emphasis ours) the law road.” Refining Company In the case Gulf v. Brown, 196 stopped Miss. So. 2d his motorist auto- bridge passing parked mobile on a after an automobile bridge, purpose being near the entrance pedestrian. passed render to a aid One car him *19 jury ran second into him. The case was submitted to the plaintiff and a verdict the rendered for wherein the award twenty-five percent of reduced the extent on ac- contributory negligence plaintiff’s count of the quoted ap- truck driver. Court The with case proval Cyc. as 492-496, follows: “If a defendant is negligent negligence and this combined with that of any independent intervening or with another, other cause, although negligence was not sole lie is liable, although proximate negligence, cause, and or the sole independent negligence interven- such other his ing without injury.” (Empha- produced have cause would not ours) sis appears firmly our own decisions it settled
Thus might intervening if occurrence of cause interrupt anticipated, reasonably it will not been have injury. original the connection between in this the intervention or not Whether recklessly stealing driving it car and act thief’s his effort to reasonably get away might have been with opinion, appellee my anticipated by is, humble jury question of under all for of the determination main is the facts and circumstances. This point my that of the and' of view difference between negligence. majority. question involves one questions system jurisprudence, of our of all Under negligence by legisla- contributory negligence have of declared for the determination tive been enactment Mississippi jury. of 1942 1455 of the Code the provides: Section contributory questions negligence of “All ’’ jury negligence be for the to determine. shall held in the case this Court has statute, from the Aside Harp, 215 Miss. of La. v. of American Works Creosote L. R. that when reasonable 35 A. 2d 60 So. questions might of on the matter, minds differ contributory negligence negligence and of cause and jury. generally In are determination City Magers and Calhoun Okolona, Houston ease R. Court 174 Miss. held Co., opinion might men have a difference where reasonable a actor continued as to whether the injury, ques- bringing about the factor substantial recovery jury. plaintiff’s for the tion of appellee question in the com- That the whether the original have act of should mission *20 reasonably anticipated com- the acts thief which negligence appellee bring bined with the of abont injury in this which men on reasonable one may emphasized by differ, is the division of authorities among jurisdictions, the courts indeed outside and opinion among division of this members Court in this case. accordingly my opinion
It is demurrer humble to the declaration event the in the overruled, should have been and
proof allegations declaration, sustains the jury proper should be the case instructions, question submitted to under leaving jury the determination of the appellee as to whether the the commission original negligence reasonably should act have anticipated stealing acts of a thief car and driving recklessly get away, resulting in his efforts to injury. frequent congestion
In these times when car thefts, daily highways, traffic, automobile too fatalities on the and frequent regulations traffic non-observance of and knowledge, road, rules are matters of common jury might well be warranted under the facts of this finding appellee case in that in the commission of the original reasonably act of should have antici- pated probability might stolen, that the car away get the thief with it would effort driving exercise less than reasonable care there- it, injury to another. Certainly question jury for the our one under requires questions statute, that all contributory negligence jury shall be for to deter- mine. say Arrington
I am authorized to that Justices Lee concur in this dissent.