Feins v. Ralby

Pierce, J. This is an action of tort and contract for the alleged negligence of the defendants in keeping or failing safely to keep an automobile of the plaintiff, placed for storage in the possession of the defendants, whereby the plaintiff lost his car through the act of some unknown person. It was admitted by the defendants that the car was placed in their garage under the customary contract for the storage of such property in such a place. It appeared in evidence that in April, 1919, the plaintiff placed his car in the defendants’ public garage in “ live storage; ” that said car remained in “ five storage ” until December of the same year; that in December it was placed in “ dead storage,” where it remained until the end of March, 1920; that the plaintiff then instructed the defendants to take the car out of “ dead storage ” and put it in condition for active use. The plaintiff testified in substance that on April 4, 1920, he went to the garage and located the car, stored in back of three or four others, and it was necessary to climb in between to get into his car; that the motor was started and it was ascertained that the work of putting the car in condition for use had actually been done; that he then left the garage; that on the following Sunday he again went to the garage and discovered upon his arrival that his car was not in its usual place; that he took the matter up with the defendants, and after a thorough search the defendants stated the car must have been stolen from the garage and that they would notify the police authorities of the theft. On cross-examination the plaintiff testified in substance that his daughter had an [231] operator’s license to drive an automobile; that so far as he knew his daughter never took the car out of the defendants’ garage; that during the time he stored the car with the defendants, he did not drive the car out of the garage nor into it; that it was his practice to request the defendants, because of the steep incline entering said garage, to put the car into the garage and take it out for him; that the defendants said on April 11, 1920, that on the previous Monday they had returned to the garage in the morning, when it was their practice to open up the same, and had then learned that the night watchman, whom they employed and had left in charge of the garage from 1 a. m. to 7 a. m., had disappeared during the night. During the cross-examination of the plaintiff, the defendants stated to the trial judge that they did not admit that either the said night watchman or any one other than the plaintiff or some member of his family took said car out of said garage; that, on the contrary, they claimed that on Sunday, April 4, the plaintiff came to the garage to take out said car; that the car was in front of the garage near the door, and not where the plaintiff claimed it then was; that the plaintiff and his son-in-law went into the car at that time, sat on the front seat, started the motor going and that they were in the said car and the motor going when the defendants last saw said car; that the switch-board key of the car was always left in the car by the plaintiff; that the plaintiff lived nearby; that his daughter drove said car and sometimes took the car out of the garage; that while the watchman disappeared sometime during the night of Sunday, April 4, it had been ascertained that nothing had disappeared with him, unless the plaintiff’s car did, although the defendants had movable property of considerable value in or about the garage. The defendants’ counsel then stated that the plaintiff at the time had the automobile in question insured for $2,000 and had made a claim for that amount against the insurance company and had collected it; and as bearing upon the probabilities of the case as to whether any one other than the plaintiff or a member of his family had removed the car from [232] the garage and not returned it, and as bearing upon the genuineness of the plaintiff’s claim that he had actually lost the car or that it was lost through the negligence of the defendants, the defendants desired to prove, by cross-examination of the plaintiff, that he had the car so insured, had made a claim against the insurance company for $2,000 and had collected it. Subject to the exceptions of the plaintiff, the presiding judge permitted the following cross-examination: “ Q. You had that car insured for $2,000. didn’t you? A. Yes. — Q. And you made a claim against the insurance company for $2,000? A. Yes. — Q. And collected it? A. — Yes.” During the charge the judge instructed the jury upon the subject of the insurance paid to the plaintiff as follows: “ I have something to say about the matter of insurance. That insurance only comes in here on this question, the only purpose for which the insurance was admitted, was simply to show the state of mind of the plaintiff. It was claimed by the defendant that the plaintiff having insured the car, he, the plaintiff, might be more careless by leaving it somewhere where somebody could take it, or where it might disappear in some way. It was only admitted for that purpose. . . . It bears simply on the question as to the bias of the witness or the interest of the witness whose property might be insured, and it ought not to weigh in the balance in this case otherwise than on that question. Because if a man loses his car and gets the insurance money, that is not the end of it; he cannot sue and recover and get twice the value of his car; he has got to account to the insurance company for the money, for what he gets himself.” The plaintiff duly excepted to this part of the charge. The cross-examination permitted by the judge was manifestly improper, and prejudicial to the plaintiff from any point from which it may be viewed. It was without probative value as evidence “ bearing upon the probabilities of the case as to whether any one other than the plaintiff or a member of his family had removed the car from the garage and not returned it; ” as evidence that the plaintiff “ might be more careless by leaving it somewhere where somebody [233] could take it, or where it might disappear in some way; ” as evidence “ bearing upon the genuineness of the plaintiff’s claim that he had actually lost the car or that it was lost through alleged negligence of the defendants; ” or finally, as evidence of material value that the plaintiff was unreliable and untruthful to any degree by reason of the fact that he had been indemnified in whole or in part for his loss through the payment of the insurance policy. Anderson v. Duckworth, 162 Mass. 251. Perkins v. Rice, 187 Mass. 28. Sibley v. Nason, 196 Mass. 125. Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44. Dempsey v. Goldstein Brothers Amusement Co. 231 Mass. 461. Akin v. Lee, 206 N. Y. 20. The exceptions must be sustained. We find no error in the two remaining exceptions argued in the plaintiff’s brief. All the other exceptions taken at the trial are waived. Exceptions sustained.