Stevens v. Stewart-warner Speedometer Corp.

• Decision Date: 10 January 1916
• Citation: 223 Mass. 44
• Parties: EZRA A. STEVENS v. STEWART-WARNER SPEEDOMETER CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 44

EZRA A. STEVENS v. STEWART-WARNER SPEEDOMETER CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1916

November 18, 1915.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Negligence, Of bailee for hire.Bailment, Duty of bailee for hire.Subrogation.Practice, Civil, New trial.Evidence Cross-examination to show bias.Witness, Cross-examination.

In an action against a speedometer maker for damage to the plaintiff's automobile caused by the defendant negligently permitting it to be stolen when it had been entrusted to him to have its speedometer repaired, there was evidence that the defendant occupied for his business the first floor of a building which he used as a store and office and a basement under it which he used as a repair shop and that this basement opened upon an alleyway back of the building, that speedometers attached to cars from day to day were repaired by the defendant in the alleyway, that the plaintiff left his car in the alleyway to have the speedometer repaired with the acquiescence of a man who ordinarily looked after the cars for the defendant and who agreed to have the plaintiff's car ready for him when he returned, and that when the plaintiff returned he found that his car had been stolen.Later the automobile was found abandoned in a badly damaged condition.Held, that the plaintiff was entitled to go to the jury, as it could be found on the evidence that the defendant had accepted the custody of the car as a bailee for hire and was bound to exercise due care for its safety and protection.

In the case stated above, it further appeared that an insurance company had paid to the plaintiff the amount of the loss he had sustained by reason of the theft of his car, and it was held, that the insurance company was subrogated to the rights of the plaintiff against the defendant and was entitled to maintain the action in the plaintiff's name.

In the same case a witness, who had seen the automobile after it had been recovered in its damaged condition, testified for the plaintiff that its value then was about $100.The defendant's counsel on cross-examination asked this witness for whom he was working, and stated that he expected the answer to be that he was working for the insurance company for whose benefit the action was brought.He also asked the witness whether he was acting for the insurance agents representing that insurance company, and stated that he expected an answer in the affirmative.The judge excluded the questions.Held, that the questions were competent as calling for evidence tending to show bias on the part of the witness, and that exceptions to their exclusion must be sustained.

In the same case this court, in sustaining exceptions relating only to the question of the amount of damages and finding no error in the trial of the issues relating to the defendant's liability, ordered that the new trial should be limited to the issue of damages.

S. D. Elmore, for the defendant.

R. Homans, (A.

G.Grant with him,) for the plaintiff.

CROSBY, J.This is an action for damages to an automobile caused by the alleged negligence of the defendant.The declaration is in three counts, the first two being in tort and the third in contract.The defendant was engaged in the manufacture and sale of speedometers and had a place of business on Columbus Avenue in Boston, which consisted of the first floor and basement of a building fronting on that avenue.The first floor it used as a store and office, and the basement it used as a repair shop.The basement at the rear opened on an alleyway which extended along the rear of various buildings that fronted on Columbus Avenue.

The plaintiff introduced evidence tending to show that on July 22, 1913, he took his automobile to the defendant's place of business found the man in charge and called his attention to the speedometer and to the fact that it was not working properly that the man asked the plaintiff whether he was going to leave the automobile, and that the plaintiff said he was that afterwards he returned and found a ticket on the car and went upstairs to the office and paid for the repairs and took the car away.The plaintiff testified that two days later he returned with his car into the alley and told a man whom he had seen about the defendant's premises two days before, that the speedometer was still out of order," that the man looked at it and said, `Are you going to leave it?' that the plaintiff said, `Yes, I am going to leave it, and I will be back at half past one;' that the man said, `All right, I will have it ready.'"The plaintiff testified that he took the switch key out of the car so that no one would be able to run it and went away and returned about half past one o'clock and found that the car was not in the alley.He further testified "that the man said, `Ordinarily I look after the cars but to-day I had to go to the dentist's.'"There was evidence to show that speedometers attached to cars from day to day were repaired in the alley by the defendant.

The defendant introduced evidence tending to show that its employees were instructed that all cars were left in the alley at the owner's risk and that such was a rule of the defendant.About a month after the automobile was left in the alley it was found in a badly damaged...