Feins v. Ralby
| Decision Date | 25 May 1923 |
| Citation | 139 N.E. 530,245 Mass. 228 |
| Parties | FEINS v. RALBY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.
Action by Samuel Feins against Morris Ralby and others. Verdict for defendants, and plaintiff excepts. Exceptions sustained.Joseph G. Bryer, of Boston, for plaintiff.
Elisha Greenhood, of Boston, for defendants.
This is an action of tort and contract for the alleged negligence of the defendants in keeping or failing safely to keep an automobile of the plaintiff, placed for storage in the possession of the defendants, whereby the plaintiff lost his car through the act of some unknown person. It was admitted by the defendants that the car was placed in their garage under the customary contract for the storage of such property in such a place.
It appeared in evidence that in April, 1919, the plaintiff placed his car in the defendants' public garage in ‘live storage’; that said car remained in ‘live storage’ until December of the same year; that in December it was placed in ‘dead storage,’ where it remained until the end of March, 1920; that the plaintiff then instructed the defendants to take the car out of ‘dead storage’ and put it in condition for active use.
The plaintiff testified in substance that on April 4, 1920, he went to the garage and located the car, stored in back of three or four others, and it was necessary to climb in between to get into his car; that the motor was started and it was ascertained that the work of putting the car in condition for use had actually been done; that he then left the garage; that on the following Sunday he again went to the garage and discovered upon his arrival that his car was not in its usual place; that he took the matter up with the defendants, and after a thorough search the defendants stated that the car must have been stolen from the garage; and that they would notify the police authorities of the theft. On cross-examination the plaintiff testified in substance that his daughter had an operator's license to drive an automobile; that so far as he knew his daughter never took the car out of the defendant's garage; that during the time he stored the car with the defendants he did not drive the car out of the garage or into it; that it was his practice to request the defendants, because of the steep incline entering said garage, to put the car into the garage and take it out for him; that the defendants said on April 11, 1920, that on the previous Monday they had returned to the garage in the morning, when it was their practice to open up the same, and had then learned that the night watchman, whom they employed and had left in charge of the garage from 1 a. m. to 7 a. m., had disappeared during the night.
During the cross-examination of the plaintiff, the defendants stated to the court that they did not admit that either the said night watchman or any one other than the plaintiff cr some member of his family took said car out of said garage; that, on the contrary, they claimed that on Sunday, April 4, the plaintiff came to the garage to take out said car; that the car was in front of the garage near the door, and not where the plaintiff claimed it then was; that the plaintiff and his son-in-law went into the car at that time, sat on the front seat, started the motor going, and that they were in the said car and the motor going when the defendants last saw said car; that the switchboard key of the car was always left in the car by the plaintiff; that the plaintiff lived near by; that his daughter drove said car and sometimes took the car out of the garage; that while the watchman disappeared some time during the night of Sunday, April 4, it had been ascertained that nothing had disappeared with him, unless the plaintiff's car did, although the defendants had movable property of considerable...
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