| Mass. | May 23, 1917
The defendant on delivery and acceptance of the car, as the jury could find, for the purpose of making repairs when their extent and nature had been ascertained and the order had been given by the plaintiff and owner, engaged, whether the repairs were or were not made, to return the car or to deliver it to some third person with the owner’s express or implied consent. Castle v. Mayer, 217 Mass. 38" court="Mass." date_filed="1914-02-27" href="https://app.midpage.ai/document/castle-v-mayer-6432569?utm_source=webapp" opinion_id="6432569">217 Mass. 38. Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44" court="Mass." date_filed="1916-01-10" href="https://app.midpage.ai/document/stevens-v-stewart-warner-speedometer-corp-6433417?utm_source=webapp" opinion_id="6433417">223 Mass. 44. Fingold v. Schacter, 223 Mass. 274" court="Mass." date_filed="1916-03-03" href="https://app.midpage.ai/document/fingold-v-schacter-6433471?utm_source=webapp" opinion_id="6433471">223 Mass. 274. “And a delivery to an unauthorized person is as much a conversion as would be a sale of the property, or an appropriation of it to the bailee’s own use. In such cases neither a sincere and
But under the general denial and the third paragraph the defendant relied on a universal custom, of which it offered evidence, that in the absence of orders to the contrary from the owner, delivery of a car to the owner’s chauffeur constituted delivery to the owner. Where such conditions appear the presumption is that both parties know of it and contract accordingly. The question however is an issue of fact for the jury under suitable instructions. Barrie v. Quinby, 206 Mass. 259" court="Mass." date_filed="1910-06-25" href="https://app.midpage.ai/document/barrie-v-quinby-6431114?utm_source=webapp" opinion_id="6431114">206 Mass. 259, 265, and cases cited. The jury under instructions which were full and appropriate could find on the contents of the letters and the inferences properly to be drawn therefrom, that negotiations were pending concerning such repairs as the defendant deemed necessary, but which by reason of the estimated cost the plaintiff had not as yet ordered, and that until the arrangements were completed the plaintiff, who during the entire period was at his summer home in another State, did not intend that the car should be redelivered or used. And the defendant’s manager testified in cross-examination that under such conditions the custom was inapplicable.
A custom to allow a chauffeur who brings a car into a garage to be kept for the owner to take it out again without an order from the owner who has given no instructions to the contrary, the jury could say on the manager’s evidence, formed no part of the bailment where the car by the owner’s directions is to be retained for an appreciable length of time for the sole purpose of ascertaining the extent and cost of necessary repairs. The distinction is
The defendant’s first request that on all the evidence the plaintiff is not entitled to recover could not have been given. It was a question of fact whether delivery to the chauffeur was authorized, and as the "authority usually possessed by chauffeurs” could not be assumed as matter of law, the second and third requests were denied rightly. The sixth request is amply covered by the instructions. As to the ninth request, the question whether the plaintiff during his absence in the summer intended that his daughter should have the use of the car depended on the evidence. If the jury believed her statements, there was no proof of a “habit,” and whether under her written order the car was delivered to the chauffeur as her servant or agent was submitted under accurate and impartial instructions. Nor could the tenth request have been given. It assumed that delivery to the chauffeur would be a valid delivery; an issue the jury were to decide on the entire evidence. The seventh request requires no comment as it has not been argued.
It is stated in the brief of defendant’s counsel, that “There are, it is submitted, other exceptions, perfectly good, which should be sustained; among others to the court’s refusal to give the 12th, 14th and 15th requests . . . also to the exclusion of evidence offered. . . .” But an examination of these exceptions reveals no reversible error of law. See Fay v. Hunt, 190 Mass. 378" court="Mass." date_filed="1906-02-28" href="https://app.midpage.ai/document/fay-v-hunt-6429247?utm_source=webapp" opinion_id="6429247">190 Mass. 378; Swain v. Boston Elevated Railway, 188 Mass. 405" court="Mass." date_filed="1905-06-21" href="https://app.midpage.ai/document/swain-v-boston-elevated-railway-co-6428985?utm_source=webapp" opinion_id="6428985">188 Mass. 405.
The plaintiff’s third and fourth requests, to the giving of which the defendant also excepted, were appropriate statements of the law for reasons previously stated. In giving a portion of the plaintiff’s sixth request in a modified form no error is shown. The instructions were only a repetition of previous instructions concerning the nature of the bailment in connection with the question of delivery. Conners Brothers Co. v. Sullivan, 220 Mass. 600" court="Mass." date_filed="1915-04-02" href="https://app.midpage.ai/document/conners-bros-v-sullivan-6433134?utm_source=webapp" opinion_id="6433134">220 Mass. 600, 607. The judge after carefully directing their attention to the evidence showing the custom on which the defendant relied, and stating
The defendant’s exceptions to “that part of the charge in which the judge” dealt with the relationship of father and daughter, and “to the entire part of the charge in which the judge” said if the car was delivered to the chauffeur “for the daughter, evidence of custom was immaterial,” must be overruled. The instructions were appropriate and unexceptionable. It was correctly said in substance that the bare relationship did not make her an agent of the plaintiff to receive or control the delivery of the car, although, as alternatively averred in the answer, if the jury found that delivery was made to the chauffeur not as the plaintiff’s servant or agent but as the agent of the daughter under the order, there was a conversion unless her act was authorized by the plaintiff.
We have considered all the questions presented in argument, and finding no errors the exceptions should be overruled.
So ordered.