Stevens v. St. Botolph Holding Co., 316 Mass. 238

316 Mass. 238 | Mass. | 1944

Wilkins, J.

The plaintiff had a finding on a count in contract against the operator of a public garage, which, it was alleged, became bailee for hire of the plaintiff’s automobile, and negligently permitted it to be broken into and various articles to be stolen. The Appellate Division dismissed the report, and the defendant appealed.

The only questions arise out of denial of the defendant’s requests for rulings. The report stated, “At the trial there was evidence which warranted the following findings of fact which I expressly make.” The judge then set forth the facts as to how the plaintiff left his automobile, which contained in its locked rear compartment several hundred small aluminum castings, two sheets of aluminum, a radio, and a spare tire, tube, and rim, at the defendant’s garage. The report proceeded: “I find that the plaintiff intended to, and did, entrust his car and its contents to the custody of the defendant, and the defendant, knowing that the car contained personal property of value, accepted custody of both the car and its contents as a bailee for hire. I find that the plaintiff did not rely solely on the lock of the rear compartment to protect his property. He relied also on the care and protection of the defendant and its employees, and the defendant knew it. I find that the plaintiff’s car was broken into, and the personal property stolen, through negligence on the part of the defendant’s employees.” These findings must stand for two reasons. (1) Notwithstanding the statement, “This report contains all the evidence material to the decision of the questions reported,” no evidence is in fact reported. See Frankina v. Salpietro, 269 Mass. 292, 295. (2) The report states that the findings were warranted by the evidence. The defendant’s requests numbered 5, 6, and 7 depended upon evidence, and, accordingly, their denial shows no error. The same is true of request numbered 1, which was in effect a request for a finding, contrary to what the judge actually found, that there was no contract of bailment as to the stolen articles. The defendant, as bailee for hire of the automobile and its contents, was bound to exercise due care in order to return them to the owner in as good condition as received. Doherty v. Ernst, 284 Mass. 341, 344. Kennedy v. B. A. Gardeito, Inc. 306 Mass. 212, 216. Sandler v. Commonwealth Station Co. 307 Mass. 470. The findings bring not merely the automobile but all the stolen articles within the contract of bailment, and were not limited, as in Rogers v. Murch, 253 Mass. 467, to a bailment of the automobile and equipment. D. A. Schulte, Inc. v. North Terminal Garage Co. 291 Mass. 251, and other cases the defendant cites, where the findings were otherwise, are clearly distinguishable. The defendant’s requests numbered 2, 3, and 4, seeking rulings based on statements inconsistent with the duty owed as bailee for hire of the personal property, were rightly refused.

Order dismissing report affirmed.