Hayes v. Maykel Automobile Co.

Carroll, J. This is an action to recover for the loss of an automobile stored in the defendant’s garage under a contract of “live storage,” so called. About thirty cars of customers were in the defendant’s care. A book required by St. 1909, c. 534, § 28, was kept for recording the coming in and going out of motor vehicles. On the morning of November 30, 1917, one Clark at the plaintiff’s request drove the car from the garage and an entry was made in the book showing the time of its departure. The plaintiff testified that he returned the automobile that evening about six o’clock, no record being made at the time; that on Sunday night, December 2, about half past seven o’clock, he took the car from the basement where it was kept and in about an hour drove it back, placed it in its accustomed place, and, on leaving the garage, shut the door without locking it; that he saw no one in charge of the garage at the time and no entry was made of the departure or return of the car; that this was the last time he saw it and its loss was discovered December 4,1917. He further testified that he had a switch key to switch the current on or off, but no locking device. The defendant’s president testified that he had no knowledge that the plaintiff took the car out or brought it back; that a man was employed continuously from half past six o’clock in the morning to half past six o’clock in the evening and another from half past six o’clock in the evening to half past six o’clock in the morning to care for the live storage on both floors; that it was a part of these employees’ duties to sell supplies, to see that cars were taken out only by the owners or by their authority, and to take care of the stored cars; that, leading from the basement, was an incline and the noise from a car in passing up this incline would be heard all over the building; that there was a door from the basement and one from the first floor, opening on the street, and the men in charge were instructed to keep the doors in the basement locked. An employee in charge of the first floor [203] and basement from half past six o’clock in the morning to half past six o’clock in the evening, testified that he had no knowledge that the car was returned after the morning of November 30, 1917, when it was taken from the garage by Clark. Attention was called to St. 1909, c. 534, § 28. The defendant’s motion for a directed verdict was denied. The jury found for the plaintiff. 1. On the facts presented the court could not rule there was no evidence of the defendant’s negligence. If the jury believed the testimony of the plaintiff, the automobile was left in the defendant’s garage on the night of December 2, and it was then in the defendant’s care and custody. The automobile could not be started and driven away from its stall in the basement and up the incline without being heard, and if the employee in charge of the building neither heard nor observed it when taken away, the jury could find he was negligent. Although the defendant’s employees were instructed to keep the basement doors locked, there was evidence for the jury that on December 2, when the plaintiff left the garage with his automobile and when he returned the door was open; and that no employee of the defendant in charge of the property, was seen by the plaintiff at either time. In addition to this, St. 1909, c. 534, § 28, required a record to be kept by the , owner, proprietor or person in control of a garage where five or more motor vehicles are stored or housed for pay, of every automobile which enters or leaves the garage. If the agents of the defendant permitted the plaintiff’s property to leave the garage after it was returned to the defendant’s control on December 2, without the entry in the record book as required by the statute, the jury could consider this circumstance as bearing on the lack of proper diligence in the care and custody of the bailment. And if the employee in charge, whose duty it was to protect the plaintiff’s property, was not present and the automobile was taken away without his knowledge, this also could be found to constitute a failure to exercise that degree of care and diligence which was reasonably to be expected of the defendant, considering the nature of the bailment, the place where it was left, and all the facts and circumstances shown in evidence. 2. The defendant asked the judge to rule there was no evidence that the defendant or any of its employees stole the car. The judge was not required to give these requests. The record does not dis [204] close that the plaintiff contended that the car was stolen by the defendant or its employees. The plaintiff complained of the loss of his car, he did not complain that it was stolen by the defendant, or its employees. There was no occasion, therefore, to give either the first or second requests. Lindsey v. Leighton, 150 Mass. 285. 3. The defendant asked for this instruction: “The law requires that an owner of an automobile driving into a garage or taking a car out shall make a record under § 28 of the act introduced in this case.” The defendant was called on to keep in a book provided for the purpose, a record showing the date, time of entering and leaving, register number and letter, if any, with the name of the operator or chauffeur of every motor vehicle leaving or entering the garage. By § 1 of the statute “chauffeur” is defined, with exceptions not material to the case, to be . “any person who operates a motor vehicle other than his own and who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with motor vehicles.” Whatever may be the duty of an operator of an automobile, other than a chauffeur, to cause the entry to be made, the entry in the record when the car is not “operated or run into or out of a garage” by a chauffeur, is to be made by the proprietor or person in control of the garage, or by some person specially designated for this duty, and not by the owner of the car when he is operating it. Responsibility for making the entries in all cases except when the car is in the control of a chauffeur, is upon the proprietor of the garage, and he is responsible for the keeping of the record; the request that the owner of the automobile when operated by himself was required to make the record, was refused rightly. 4. The evidence was admitted without objection that no record was made when the car was taken out and returned on Sunday, December 2. The defendant asked for the instruction:' “The omission to make a record of the coming in or the going out of the car on Sunday night is not evidence of negligence on the part of the defendant.” Assuming that this request refers to the going out and coming in of the car while in the plaintiffs control, it was not reversible error to refuse it. The question before the jury was the negligence of the defendant in permitting the car to leave the garage, or in neglecting to prevent its departure after half past [205] eight o’clock Sunday, December 2, when the plaintiff testified he left the car in its proper place in the basement. The defendant’s negligence previous to this time was not material; and the failure to make the entry when the car was taken out and returned by the plaintiff on Sunday evening, had no bearing on the defendant’s negligence in the subsequent loss of the automobile. The jury were fully instructed on the question of the defendant’s negligence and the responsibility of keeping the record, to which no exception was taken. Apparently counsel for the defendant argued to the jury that the plaintiff was familiar with the automobile laws and if he brought the car to the garage on December 2, he should have entered that fact or caused it to be entered on the book; and therefore, that the plaintiff’s failure to do this was evidence that he did not in fact return the car on December 2. The judge left this matter to the jury to consider in passing on the question whether the plaintiff did in fact return the car on that date. While the omission to make the record on December 2, when the automobile was in the control of the plaintiff, was not material to establish the defendant’s negligence, in view of the instructions given on the failure to make the record when the automobile was finally taken away without the consent of the plaintiff, there was no reversible error in refusing this request. Exceptions overruled.