Belli v. Forsyth

• Decision Date: 15 September 1938
• Citation: 16 N.E.2d 656,301 Mass. 203
• Parties: BELLI v. FORSYTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 203

16 N.E.2d 656

BELLI

v.FORSYTH.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 15, 1938.

Report from Superior Court, Middlesex County; F. B. Greenhalge, Judge.

Action by George Belli, Jr., against Albert C. Forsyth for damages to plaintiff's automobile which was struck by an automobile driven by defendant. On report from the Superior Court.

Judgment for the plaintiff.

W. R. Donovan, of Boston, for plaintiff.

No argument nor brief for defendant.

QUA, Justice.

This action is to recover property damage which resulted when the plaintiff's automobile was struck by an automobile driven by the defendant.

The plaintiff had lent his automobile to his mother and his sister. It was being operated at the time of the accident in his absence at the direction of one or the other of these bailees and not on the plaintiff's business or for his benefit. On the same day on which this action was brought the bailees brought actions against the defendant for personal injuries to themselves, but made no claim in their declarations for any damage to the plaintiff's automobile. These actions by the bailees were settled and ‘disposed of’ (in what way the record does not disclose), and releases were given by the bailees to the defendant of all claims for personal injury and property damage resulting from the accident. These releases were witnessed by the plaintiff. The judge found that the operator of the plaintiff's automobile was in the exercise of due care and that the defendant was negligent. There was no evidence that the bailees ‘made any specific claim for damage to plaintiff's automobile, nor that, if such claim were made at any time the plaintiff knew of it,’ and the judge states that he made no finding that any such claim was made by them with the knowledge or consent of the plaintiff. He ruled that the releases were a defence and found for the defendant.

The ruling as matter of law that the releases given by the bailees to the defendant were a defence to this action by the bailor cannot, we think, be supported upon this record. We suppose that this ruling was posited upon the line of cases holding that a bailee may recover for the entire loss resulting from injury to or conversion of the bailed property by a third person (Brewster v. Warner, 136 Mass. 57, 49 Am.Rep. 5;Harrington v. King, 121 Mass. 269;Pratt v. Boston Heel & Leather Co., 134 Mass. 300; Anthony v. New York, Providence & Boston Railroad Co., 162 Mass. 60, 65, 37 N.E. 780;Herries v. Bell, 220 Mass. 243, 245, 107 N.E. 944, Ann.Cas.1917A, 423) and upon an assumed corollary from that doctrine to the effect that a general release by the bailee which wholly ends all causes of action which the bailee may have had against the wrongdoer must be presumed to end all claims for damages which might have been asserted in such an action. But several of the cases in which the rule itself is accepted, recognizing the injustice which might result from it if actions could be prosecuted and judgments based upon the full value of the property recovered and collected by an irresponsible bailee behind the back of the bailor, suggest the possibility that the rule may be conditioned upon express or implied consent of the bailor or upon a right on his part to protect himself in some manner. Johnson v. Holyoke, 105 Mass. 80, 81;Brewster v. Warner, 136 Mass. 57, 59,49 Am.Rep. 5;Bowen v. New York Central & Hudson River Railroad Co., 202 Mass. 263, 269, 88 N.E. 781;Field v. Early, 167 Mass. 449, 45 N.E. 917. Moreover, the right of the bailor himself to maintain his own action is well established, and no reason appears why his right should be regarded as inferior or subordinate to that of the bailee. The W. C. Block, 2 Cir., 71 F.2d 682;Bresnick v. Heath, 292 Mass. 293, 198 N.E. 175;Gibbons v. Denoncourt, Mass., 9 N.E.2d 633; Am.Law Inst.Restatement: Torts, § 219, Comment b. Thus in Rindge v. Coleraine, 11 Gray 157, 161, 162, it was held that where the bailee had brought an action for personal injury but not for property damage the bailor might nevertheless maintain his action for the property damage. And after a careful discussion of the changes brought about by time in this part of the law this court held in Nash v. Lang, 268 Mass. 407, 167 N.E. 762, that the bailor could recover his full loss notwithstanding contributory negligence of the bailee. On page 414, 167 N.E. on page 765, it is said that neither such negligence, nor the fact that the bailee can sue, nor the fact that the bailor...