Lubell v. Turner

• Decision Date: 29 June 1943
• Citation: 314 Mass. 245,49 N.E.2d 885
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PAULINE LUBELL v. WILLIAM D. TURNER & another.

314 Mass. 245

49 N.E.2d 885

PAULINE LUBELL v. WILLIAM D. TURNER & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1943

April 8, 1942.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.

Warehouseman. Bailment.

Evidence warranted a finding that goods of a customer of a warehouseman delivered at the warehouse by a mover included certain rugs and that the rugs were not included when subsequently goods were redelivered to the mover at the warehouse for transportation back to the customer.

CONTRACT OR TORT. Writ in the Municipal Court of the City of Boston dated March 15, 1941.

There was a finding for the plaintiff by Tomasello, J. A report to the Appellate Division was ordered dismissed, and the defendants appealed.

The case was argued at the bar in April, 1942, before Field, C.J., Donahue Dolan, Cox, & Ronan, JJ., and afterwards was submitted on briefs to all the Justices.

C. P. Huse, Jr. for the plaintiff. H. D. White, for the defendants.

LUMMUS, J. The defendants are warehousemen under the name of New England Storage Warehouse Company. This action is one of contract or tort, with three counts for the same cause of action. The first count is in contract, alleging that the defendants agreed safely to keep two rugs for the plaintiff, and to return them on demand, but failed so to return them. The second count is in tort and like the first with the addition that the failure to return the rugs was negligent. The third count is in tort for the conversion of two rugs.

The case was heard by a judge of a District Court. The plaintiff testified that in September, 1938, she caused the two rugs to be rolled up and tied, apparently in one bundle. "They had been rolled and tied and placed in the living room [of the plaintiff's house which had been closed for the summer] on one side of the room. There were eight or nine bundles in the living room, three in the dining room, and six or seven in the bedroom; that she talked with Clark of the Clark Moving Co. about the same, and they called and removed them on September 12, 1938. She was at home at the time and everything in the house was removed, including all rugs." Clark testified that in September, 1938, he "went to the plaintiff's home, saw the rugs, which had been rolled. . . . They were all in one place. He did not recall the number of bundles." He testified that everything was moved out of the house. He "did not get into the truck, but followed the truck in his own automobile and arrived at the warehouse between 4:30 and 5:00 P.M." By that time the power had been shut off. He "placed the rugs on the elevator . . . and left them there. The watchman who was there told him to leave them there and to go on."

One Greeley, the manager of the defendants' warehouse, testified that on September 12, 1938, the defendants received from the plaintiff by Clark Moving Co. a miscellaneous lot of furniture and three bundles of rugs. They received later from the plaintiff by Albany Carpet Cleaning Company nine bundles of rugs, making a total of twelve bundles. The bundles were never opened, but were placed in the cold storage chamber of the warehouse, which is kept locked and to which only four of the officials of the warehouse have keys. He testified further that after the power has been shut off for the day, goods would be left in the elevator over night, and marked, taken up, and stored the next morning. The elevator is in a part of the warehouse which is locked and guarded by watchmen at night. It is conceivable that goods might remain in a corridor for a week, but that would be very exceptional.

On December 16 1940, the plaintiff, being about to move into a new house at 685 Chestnut Hill Avenue in Brookline, wrote to the defendants that Clark would call for her furniture. An employee of Clark Moving Co. receipted for the goods on December 19, 1940. The receipt called for twelve bundles from the cold storage room. Clark testified that he did not accompany the load from the warehouse to the plaintiff's new house, but he was at the house when the load arrived. He did not remember...