Domaingue v. Murphy

54 Mass. App. Dec. 114

• Court: Massachusetts District Court, Appellate Division
• Decided: April 29, 1974
• Docket: No. 120; No. 223134
• Status: Published

Opinion

Gould, J.

This an action of contract or tort to recover damages for the loss of a 1962 blue rack body Ford truck. The declaration was in three counts. Count I was based on negligence, Count II on a contract alleged to have been made with the defendant to store the vehicle and return it in the same condition as it then was upon demand, and Count III was for conversion.

The court found for the defendant. According to the report which was allowed by the court on appeal, there was evidence which tended to show that on or about February 20, 1972, the plaintiff’s motor vehicle had been towed to the defendant’s premises at the request of the Holyoke Police Department. On the next day the plaintiff went to the defendant’s place of business and entered into an agreement with an agent of the defendant to store the truck at the defendant’s premises at an agreed per diem price. There was no duration or length of the storage period. At the time of this agreement the vehicle was parked at premises of the defendant adjacent to a repair garage on Northampton Street, and two days later an employee of the plaintiff went to those premises and removed the repair plates which were then on the vehicle. This was the last time that either the plaintiff or his employee ever saw the truck.

At the close of the evidence the plaintiff seasonably filed requests for rulings and the court allowed all of them, except # 10 which was denied, and in addition thereto the court made special findings of fact, that the defendant was not negligent and did not agree to return the car to the plaintiff in the same condition as when received.

The report further recited that it contained all the evidence material to the question reported. The plaintiff claimed to be aggrieved by this denial of request # 10, and requested a report to the Appellate Division for determination.

Bequest for ruling # 10 was as follows: “The evidence introduced by the defendant is not sufficient to warrant the court to find for the defendant.”

Steven A. Nison, Esq. for Plaintiff Simpson, Clason, Callahan & Giustina for Defendant

A perusal of the evidence contained in the report as well as a reading of the special finding of facts made by the court pursuant to Buie 27 of the District Courts, indicate that the court’s action on request for ruling # 10 was proper.

Since the special findings of fact included the specific finding that the defendant was not negligent, it is a reasonable inference that testimony was presented by the defendant to enable the court to properly make this special finding.

The judgment of the District Court of Springfield is therefore affirmed.