Rubin v. Huhn

• Decision Date: 04 January 1918
• Citation: Rubin v. Huhn, 229 Mass. 126, 118 N.E. 290 (Mass. 1918)
• Parties: RUBIN v. HUHN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 126

118 N.E. 290

RUBIN

v.HUHN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1918.

Appeal from Municipal Court of Boston, Appellate Division; John Duff, Judge.

Action by Myer Rubin against Samuel I. Huhn.There was finding for plaintiff, and the case was reported to the appellate division of the municipal court of the city of Boston, which dismissed the report, and defendant appeals.Order dismissing report ordered affirmed.

Walter Hartstone and Harry L. Michaels, both of Boston, for appellant.

Samuel Sigilman, of Boston, for appellee.

PIERCE, J.

[1][2]The defendant assumed at most the obligation of a gratuitous bailee when, in the lobby of a theatre crowded with people, he received from one Wyner a pair of diamond earrings in a box and at the request of Wyner then and there undertook to inspect, examine and appraise them without reward.Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168.The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith, that is, shall use the degree of care in the performance of the undertaking which is measured by the carefulness which the depository uses toward his own property of similar kind under like circumstances.Foster v. Essex Bank, supra;Whitney v. Lee, 8 Metc. 91;Smith v. Nat. Bank, 99 Mass. 605, 97 Am. Dec. 59.

[3][4] In an action of contract or of tort for breach of duty imposed by law, the mere fact ‘that the defendant dropped one of the earrings and it was lost,’ is not sufficient evidence of his gross negligence to warrant a finding for the plaintiff.The ruling of the judge ‘that the defendant, in handling and dealing with the earrings did not exercise such care as a reasonably prudent man would have exercised under the circumstances,’ imposed upon the defendant, a gratuitous bailee, a standard of care which measures the duty of a bailee for hire.This was manifest error.

[5] Upon the reported facts the failure to return the lost earring is not a conversion.

‘The action of trover is not maintained by proof of negligence, but only of misfeasance amounting to a conversion.’Foster, J., in Hall v. Boston & Worc. R. R., 14 Allen, 439 443, 92 Am. Dec. 783.

[6] As regards the other earring, the facts found warrant a finding that the defendant, in the possession of the earring, on demand refused to deliver it to the owner, the plaintiff.Moreover, the testimony of the defendant would warrant a finding that he delivered the earring to a person unauthorized to receive it by the owner or by the person from whom the defendant received it.An action of trover will lie upon either view of the facts.Devereux v. Barclay, 2 B. & Ald. 704;Claflin v. Boston & Lowell R. R., 7 Allen, 341;Saxon Mills v. N. Y., N. H. & H. R. R., 214 Mass. 391, 101 N. E. 1075, and cases cited.

[7] At the close of the evidence the defendant requested the court to rule ...