Morse v. Homer's Inc.

• Decision Date: 10 November 1936
• Citation: 295 Mass. 606,4 N.E.2d 625
• Parties: MORSE v. HOMER'S, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 606

4 N.E.2d 625

MORSE v. HOMER'S, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

November 10, 1936

Action of tort by Jesse F. Morse, administrator, against Homer's, Inc., wherein the trial judge found for plaintiff in the sum of $2,500. Report was dismissed by the Appellate Division and defendant's petition to establish a draft report was denied, and defendant appeals.

Orders of the Appellate Division affirmed.

Appeal from Municipal Court of Boston, Appellate Division; Burke, judge.

F. R Mullin and G. I. Kellaher, both of Boston, for plaintiff.

R. B Owen and A. S. Lawrence, both of Boston, for defendant.

DONAHUE, Justice.

The plaintiff brought an action in contract or tort in the Municipal Court of the City of Boston seeking to recover the value of a ring entrusted to the defendant, a corporation which is engaged in the retail jewelry business with its place of business on Tremont Street in Boston. The trial judge found for the plaintiff on a count in tort and reported ‘ rulings and refusals to rule as requested’ to the Appellate Division where an order was entered dismissing the report.

The defendant filed the following requests for rulings: ‘ 1. If the defendant received the ring as a bailee for hire then, provided without its negligence, said ring was lost in a robbery of the defendant's store, the defendant is not liable. 2. If the defendant was a bailee for hire of the ring, the plaintiff cannot recover on the count in tort without proving negligence on the part of the defendant, the defendant not being an insurer of the ring.’ The trial judge indorsed on the first request ‘ Denied. See finding of fact’ and on the second request ‘ Denied. I find the defendant negligent.’ He made the specific finding of fact ‘ I find that the defendant did not use the ordinary care in safeguarding the ring which plaintiff left with defendant.’

The defendant also filed a written motion stating that the defendant moved that ‘ as a matter of law a finding in its favor be entered on the * * * [count in tort], and for reason thereof assigns the following: There is no evidence of negligence on the part of the defendant in the care and custody of the said ring.’ The statute and the rules of the Municipal Court contemplate that the basis of a report to the Appellate Division shall be requests for rulings and not motions. G. L. (Ter.Ed.) c. 231, § 108. Rule 28 of the Municipal Court of the City of Boston (1932). See, also, Holton v. American Pastry Products Corp., 274 Mass. 268, 271, 174 N.E. 663. But if we treat the motion as such a request we think it and the two requests for rulings were rightly denied by the trial judge.

The plaintiff purchased from the defendant a diamond ring for $2,000. At a later time the plaintiff delivered the ring to the defendant under an agreement that the defendant would undertake to sell it and obtain $2,000 for the plaintiff, retaining everything received above that amount as its profit in making the sale and that the defendant would return the ring on the plaintiff's demand at any time before a sale was made. Under this agreement there was a bailment for the mutual benefit of the parties, the contingent benefit accruing to the defendant in the event of a sale being sufficient to constitute the transaction a bailment for hire. Newhall v. Paige, 10 Gray, 366.

By receiving the plaintiff's ring under that agreement the defendant became obligated to exercise the quality of care in its custody of the ring which a reasonably prudent and careful man would use with respect to his own property of a similar nature. Rourke v. Cadillac Automobile Co. 268 Mass. 7, 8, 167 N.E. 231.

A few weeks after the agreement of bailment was made armed robbers entered the store of the defendant one afternoon while business was there going on. They carried away only jewelry which was in the show window facing the street. There were in the show window three trays of jewelry, the center one containing the best merchandise. The plaintiff's ring was on that tray. It was the most valuable piece of jewelry stolen, the one next in value being worth less than $1,000 and the majority of the pieces taken being worth less than $300.

The show window from which the plaintiff's ring was stolen was closed off from the interior of the store by a partition of wood and glass. There was a door in this partition through which access could be had from inside the store to the show window. The door was provided with a lock and key, but at the time of the robbery the door was not locked. Just inside the street door there was a short passageway along the rear of the partition leading to an aisle used by employees while working behind a show case. There were no screens or gratings around the show window. A person in front of the show window could see the door in the rear partition and tell whether or not it was open. There was a safe in the defendant's store. During the negotiations for the purchase of the ring from the defendant the plaintiff had occasion to examine the ring and on several such occasions it was brought by the defendant's employees from the safe. There was evidence that the plaintiff knew of the conditions in the store and had criticized them to the head of the defendant's diamond department. There is nothing in the report indicating that the plaintiff ever knew that the defendant displayed his ring in the show window.

There was evidence that on two prior occasions the defendant had suffered loss by theft.

All the circumstances in a case are to be considered in determining the quality of the care which should be furnished by a bailee. One of the elements to be considered is the value of the subject of the bailment. The greater its value the greater should be the vigilance of the bailee. It has been said that a bailee's ‘ care and diligence are to be proportional to the value of the goods, the temptation and facility of stealing them, and the danger of losing them.’ Tracy v. Wood, Fed.Cas. No. 14, 130, 3 Mason, 132, 134. See, also, Preston v. Prather, 137 U.S. 604, 11 S.Ct. 162, 34 L.Ed. 788. The plaintiff's ring was valuable. It contained a diamond of more than five carats set in a mounting surrounded by thirty-six diamonds. It was obviously conspicuous in the show window where the defendant placed it.

The fact that such a ring was displayed in the show window unprotected by screens or gratings or similar safeguards and that access to the show window could be readily gained through the door in the partition was apparent from the street to one thievishly inclined. A casual visit by such a person to the inside of the store would disclose the facility with which the contents of the show window could be reached and the ease with which a robber might make his escape. When the ring was owned by the defendant it had been kept at least part of...