D. A. Schulte, Inc. v. North Terminal Garage Co.
| Decision Date | 26 June 1935 |
| Citation | 197 N.E. 16,291 Mass. 251 |
| Parties | D. A. SCHULTE, Inc., v. NORTH TERMINAL GARAGE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Suffolk County; Hanify, Judge.
Action of contract or tort by D. A. Schulte, Incorporated, against the North Terminal Garage Company, which was tried without a jury. On report from the Superior Court.
Judgment for plaintiff for nominal damages.
M. C. Taylor, of Boston, for plaintiff.
D. R Pokross, of Boston, for defendant.
This is an action of contract or tort in two counts, tried in the superior court without a jury, whereby the plaintiff seeks to recover damages from the defendant, as a bailee for hire, for the loss of a truck and its contents from the defendant's garage. To this action the defendant in answer filed a general denial. The judge found that the plaintiff was entitled to recover nominal damages in the sum of $1 for damage to the truck, made certain findings of fact, and reported the case to this court ‘ upon an agreement and stipulation of counsel * * * that if on the facts found * * * the plaintiff is entitled as a matter of law to recover substantial damages for the value of the contents of the truck, judgment is to be entered for the plaintiff for Six Thousand Three Hundred Thirty-five and 44/100 ($6,335.44) Dollars; otherwise judgment to be entered for the plaintiff for One ($1.00) Dollar.’
In substance the judge found and ruled as follows: Theologytis Stames, doing business under the name Germania Express, was the owner of a large motor truck with an enclosed body of considerable capacity; the two sides and rear of which had solid doors secured by locks, so that no part of the inside of said body was visible from without. The defendant was the owner of a public garage that had three floors with storage capacity for five hundred automobiles or motor trucks. In November, 1925, the Germania Express made an arrangement with the defendant for the live storage of said truck in the defendant's garage, and the Germania Express agreed to pay for the same at the rate of $25 a month. In consequence thereof a certain stall on the first floor of the garage was assigned for the storage of the truck. Thereafter, the truck was driven regularly in the garage to its assigned place by employees of the Germania Express, and when taken out was driven from its stall by the employees, ‘ excepting as hereinafter appears on November 22, 1930.’ The truck when driven into the garage frequently contained valuable merchandise not observable from without because of its enclosure in the locked and windowless body of the truck. At no time prior to its removal from the garage on November 22, 1930, did the defendant or its agents or servants know or have reason to know that said truck contained any merchandise when stored in the garage. At no time prior to its removal on November 22, 1930, did the truckman or his helper or anyone else bring to the attention of the defendant or its agents or servants the fact that the truck in question contained or would contain merchandise or other personal property when placed in the garage. On the afternoon of November 21, 1930, the plaintiff's assignor Germania Express, was engaged by the plaintiff in the transportation of cigars, cigarettes, tobacco, etc., the property of the plaintiff, from certain railroad and steamship terminals in Boston to the warehouse of the plaintiff. Because of the lateness of the afternoon, the employees of Germania Express drove the truck with its contents instead to the defendant's garage and placed the truck in its assigned stall; this was done with the authorization of the plaintiff. The merchandise was securely locked in the truck and its presence was neither known nor visible to the defendant company or its agents or servants. The next morning, at about 7 a. m., the time of day when the truck was usually driven from the garage by the employees of the Germania Express, two men engaged in starting the truck from its stall were observed by two employees of the defendant. One of the men on the truck in dress and appearance strongly resembled the helper employed on the truck by the Germania Express, and was taken to be such by the employees of the defendant who were entrusted with the duty of supervision of trucks leaving the garage. These employees of the defendant observed the truck leaving the garage and permitted it to depart under the mistaken belief that it was then in charge of an employee of the Germania Express. The judge ruled ‘ that the aforesaid conduct by the defendant's employees constitutes a delivery of said truck and renders the defendant liable for a misdelivery of the truck, as the persons taking the truck were not authorized by the bailor to receive it,’ and he found ‘ that the aforesaid conduct of defendant's said employees was negligent but not gross negligence.’
The truck was found later on the same day abandoned in another part of Boston. The locks on two doors had been removed and merchandise of the plaintiff to the value of several thousands of dollars had been removed and was missing. On November 22, 1930, the truck was returned to the Germania Express and accepted. The only evidence of damage to the truck was that two locks were broken on it and the ignition vire was cut. As to these items there was no evidence of their value. The judge found ‘ that the plaintiff is entitled to recover nominal damages in the sum of one dollar for the damage to the truck’ ; ‘ that at no time did the defendant receive any merchandise for storage from the plaintiff or its assignor; that it never had any notice that the plaintiff or its assignor owned any merchandise upon its premises,’ and found and ruled ‘ as to the merchandise of the plaintiff in the truck of the Germania Express on November 21 and 22, 1930, that the defendant was neither a bailee for hire nor a gratuitous bailee.’ He further found that the merchandise was never delivered to the custody or the possession of the defendant and that the defendant never accepted the custody or possession of the merchandise, and found and ruled ‘ that the plaintiff is not entitled to recover for the loss of its merchandise.’
As above stated, the plaintiff's writ was in contract or tort. The declaration was in two counts differing only in that the first alleged failure to exercise due care and the second gross negligence. Each count alleged an obligation of the defendant not to misdeliver the truck and a violation of this obligation, and the second count also alleged conversion.
The plaintiff filed thirty-three requests for rulings. The judge states as to these: He refused to give requests 9, 10, 11, 13, 20 and 30 because they were inapplicable to the facts found. He...
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