Rogers v. Murch

Pierce, J.

This is an action of contract or tort, to recover the value of an automobile left with the defendant for repairs, as also to recover the value of two spare tires with tubes, and two fur robes, which respectively were attached to and within the car.

The defendant conducted a repair shop for Cadillac cars within the thickly settled portion of the city of Worcester. The shop had a frontage of about sixty feet on Sever Street, was a hundred and fifty feet deep, and had a capacity to, and did in fact, accommodate twenty to twenty-five cars every night. A window, large enough when open for a person to get through the lower half, led to a basement under the shop. The window could be locked, but there was evidence which would warrant a finding that it was not locked at the time hereinafter referred to. The shop, which was the largest repair shop around, was used entirely and solely for the repair of Cadillac automobiles; and no charge was ever made for storage. There was only one entrance through which an automobile could be driven. It had a big sliding door which could be fastened and released, on the inside, by moving a handle that raised or lowered a hook which, riveted on the door, swung over and caught in a slot in a *470 hasp of inch iron attached to the door jamb. This door was locked at five-thirty or six o’clock in the evening, and between then and seven-thirty in the morning nobody ever drove in or out of the repair shop. Automobiles were brought in through the big door and stopped somewhere in the first division of the repair shop. A person in charge of the service work ascertained what was to be done and made a written memorandum of it. This was attached to the car and it was run into the rear repair shop. When the work required to be done was finished the car was backed out of the repair shop and put in the front part of the building until it was called for by the owner. There was evidence that there were locks for all the doors and windows, but no testimony that the windows and doors on that particular night were in fact locked other than could be inferred from evidence that it was the practice for a witness to lock them before leaving at night.

On June 18, 1918, the plaintiff left his Cadillac automobile at the defendant’s shop to have some repairs completed on it. The work was done and it was placed in the front of the shop on Saturday night. It could not be found when called for on Monday morning, and it is stated in the bill of exceptions that the “automobile was stolen from the defendant’s shop by a person who at some time previous to the theft had been in the employ of the defendant”; that an entrance to the building was effected through the window in the basement; and that the defendant did not employ a night watchman at the time. During the trial the defendant, in cross-examination of the plaintiff, asked, “Had you any insurance policy which gave the insurance company paying your loss a right of subrogation against the wrong doer ?” The right to have an answer to the question being denied by the trial judge the defendant then asked, “Did you assign your rights when you settled with the insurance company to any third party ?” To the exclusion of these questions the defendant excepted. The exclusion was not error. If there was an assignment that fact was not a defence unless it should be further proved that the plaintiff had no beneficial interest in the cause of action and that the *471 bringing of the suit or its prosecution had not been authorized by the assignee. Moore v. Spiegel, 143 Mass. 413, 417 . Kelly v. Greany, 216 Mass. 296 . Brazill v. Green, 236 Mass. 93, 98 .

The defendant saved an exception to the admission of the question and answer “Did you keep a record in your garage of cars entering and leaving ?” If it be assumed without decision that the evidence warranted a finding that the defendant was either a manufacturer of and dealer in motor vehicles, or was an owner, proprietor, person in charge, or keeper of a garage, as such terms are defined in St. 1909, c. 634, § 1, and therefore was required under St. 1909, c. 534, § 28, now G. L. c. 90, § 32, to keep in a book a proper record of every automobile which enters and which leaves his garage, stable, shop or place of business, we are nevertheless of opinion that the evidence,, offered to prove that the book kept by the defendant did not record the entry and departure of the stolen automobile, was not relevant in proof of the contention of the plaintiff that the defendant had failed to exercise due care properly to protect and safeguard the automobile of the plaintiff left within his custody and control. Hayes v. Maykel Automobile Co. 234 Mass. 198 . Hanna v. Shaw, 244 Mass. 57 . It follows that this exception and that taken to the charge of the judge in respect to the same subject matter must be sustained.

Upon the pleadings and evidence the plaintiff should not have been permitted to recover the value of the fur robes which were left in the car by the plaintiff. There is no evidence that the defendant or his agents knew of the presence of the robes in the car when the car was left in his custody; nor is there evidence that he undertook to care for them until the plaintiff should call for his automobile. At most such a bailment was gratuitous and there is no evidence of the defendant’s bad faith or gross negligence. Whitney v. Lee, 8 Met. 91 . Massaletti v. Fitzroy, 228 Mass. 487 . The extra tires and tubes were a part of the equipment and were within the protection of the contract of bailment.

The request for a ruling that “There is no evidence of negligence on the part of the defendant and the plaintiff *472 cannot recover” was refused rightly. In consideration of all the evidence and particularly of the value of the cars which were daily housed, of the ease of entering the premises, and of opening the large door, the jury could properly find that reasonable care and prudence required that the premises should have been more securely safeguarded by other or additional locks, or, if such was not feasible, by a night watchman.

Exceptions sustained.