Rogers v. Murch

• Decision Date: 16 October 1925
• Parties: ROGERS v. MURCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 467

149 N.E. 202

ROGERS

v.MURCH.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1925.

Exceptions from Superior Court, Worcester County; Edward t. Broadhurst, Judge.

Action by Francis P. Rogers against Henry J. Murch to recover value of automobile left with defendant for repairs. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

1. Assignments k110-Assignment of bailor's rights to insurer held no defense to suit against bailee for value of automobile.

In action for value of automobile left with defendant for repairs, the exclusion of questions asked plaintiff as to whether he had assigned his rights when settling with insurer held not error, since such assignment would be no defense, unless it was proved that plaintiff had no beneficial interest in action and that suit was not authorized by assignee.

2. Livery stable and garage keepers k7-Evidence as to whether garage owner kept record of cars held irrelevant.

Assuming that owner of repair garage was within St. 1909, c. 534, s 1, and therefore required, under section 28 (now G. L. c. 90, s 32), to keep record of automobiles entering and leaving garage, in suit for value of automobile left for repairs and which was stolen from building, evidence offered to prove that book kept by defendant did not record entry and departure of automobiles held not relevant in proof of contention that defendant failed to exercise due care properly to protect automobile.

3. Livery stable and garage keepers k7-Value of robes left in automobile held not recoverable.

Where plaintiff left his automobile in defendant's garage for repairs, and neither defendant nor his agents knew of presence of robes therein, nor undertook to care for them, plaintiff could not recover value thereof in suit to recover for automobile stolen from garage.

4. Livery stable and garage keepers k7-Tires held part of automobile's equipment, and within contract of bailment.

Extra tires and tubes, attached to automobile when left with defendant for repairs, held to be part of its equipment and within contract of bailment.

5. Livery stable and garage keepers k7-Garage keeper's negligence held for jury.

In action for value of automobile left with defendant for repairs and which was stolen from his garage, where jury could find that reasonable care and prudence required premises should have been more securely safeguarded, or, if such was not feasible, by night watchman, defendant's request that there was no evidence of negligence on his part was rightly refused.

J. B. Hannigan, of Worcester, for plaintiff.

D. F. Gay, of Worcester, for defendant.

PIERCE, J.

This is an action in contract or tort, to recover the value of an automobile left with the defendant for repairs, as also to recover the value of two spare tires with tubes, and two fur robes, which respectively were attached to and within the car.

The defendant conducted a repair shop for Cadillac cars within the thickly settled portion of the city of Worcester. The shop had a frontage of about 60 feet on Sever street, was 150 feet deep, and had a capacity to, and did in fact, accommodate 20 to 25 cars every night. A window, large enough when open for a person to get through the lower half, led to a basement under the shop. The window could be locked, but there was evidence which would warrant a finding that it was not locked at the time hereinafter referred to. The shop, which was the largest repair shop around, was used entirely and solely for the repair of Cadillac automobiles, and no charge was ever made for storage. There was only one entrance through which an automobile could be driven. It had a big sliding door which could be fastened and released, on the inside, by moving a handle that raised or lowered a hook which, riveted on the door, swung over and caught in a slot in a hasp of inch iron attached to the door jamb. This door was locked at 5:30 or 6 o'clock in the evening, and between then and 7:30 in the morning nobody ever drove in or out of the repair shop. Automobiles were brought in through the big door and stopped somewhere in the first division of the repair shop. A person in charge of the service work ascertained what was to be done and made a written memorandum of it. This was attached to the car and it was run into the rear repair shop. When the work required to be done was finished the car was backed out of the repair shop and put in the front part of the building until it was called for by the owner. There was evidence that there were locks for all the doors and windows, but no testimony that the windows and doors on that particular night were in fact locked other than could be inferred from evidence that it was the practice for a witness to lock them before leaving at night.

[1] On June 18, 1918, the plaintiff left his Cadillac automobile at the defendant's shop to have some repairs completed on it. The work was done and it was placed in the front of the shop on Saturday night. It could not be found when called for on Monday...