Hewi v. Cerrione

1980 Mass. App. Div. 26, 1 Mass. Supp. 527, 1980 Mass. App. Div. LEXIS 3
CourtMassachusetts District Court, Appellate Division
DecidedFebruary 14, 1980
StatusPublished
Cited by2 cases

This text of 1980 Mass. App. Div. 26 (Hewi v. Cerrione) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hewi v. Cerrione, 1980 Mass. App. Div. 26, 1 Mass. Supp. 527, 1980 Mass. App. Div. LEXIS 3 (Mass. Ct. App. 1980).

Opinion

Grabau, J.

This is an action in tort in which the plaintiff seeks to recover damages for the loss of his motor vehicle. The answer of the defendant was a general denial. The court found for the plaintiff in the sum of $450.00.

At the trial, there was evidence tending to show:

On February 21, 1978 at about 8:00 a.m., the plaintiff drove his 1970 Ford Mustang, which he purchased on September 1,1977 for $500.00, to the defendant’s service station which is located at Roslindale Square, at or near Roberts Street. The plaintiff asked the defendant to repair the vehicle’s headlight as it was not functioning properly. The defendant did not have any room at his gas station, which can accommodate about five to six cars, and suggested that the plaintiff park his vehicle on Roberts Street in front of the defendant’s gas station. The plaintiff then parked his vehicle at the curbing in front of the defendant’s gas station.

After the plaintiff gave the defendant the keys, the defendant placed the keys on his desk in the building where there were six other sets of keys. The desk was a usual depository for all keys left with the defendant.

The defendant worked on the headlight. After repairing it, the defendant got into the plaintiff’s car to test the headlight and found that the door to the car was unlocked. After testing the headlight, the defendant shut, but did not lock, the door of the vehicle.

The defendant would permit people, who were waiting at a nearby bus stop, to enter the building to use the lavatory and his telephone.

When the plaintiff returned to get his car at about 1:00 p.m. on the same day, he was unable to locate his car. Both the keys and the car were missing.

The plaintiff offered to give some money to the defendant for his services; namely, $6.00. The defendant at first refused to accept payment, but later accepted the $6.00 as payment.

During the six months of ownership of the car, the plaintiff installed a new starter, purchased two new snow tires, and made repairs to the radiator. When the plaintiff purchased his car, it had been driven 50,000 miles, and since then the vehicle had travelled another 12,000 miles.

The defendant is able to observe all activity at his gas station, both while he is outside of the building and also from inside the building.

At the close of the trial and before final arguments, the defendant made the following requests for rulings on which the judge ruled as indicated below:

1. There is not sufficient evidence to warrant a finding for the plaintiff.
COURT: Denied. See findings of fact.
[27]*272. There is sufficient evidence to warrant a finding for the defendant.
COURT: Yes, sufficient evidence to warrant but not to compel such a finding. See court’s findings of fact.
3. The defendant at no time had control or custody of the plaintiffs motor vehicle.
COURT: Denied. See court’s findings of fact.
4. The bailment, if any, was that of a key for a motor vehicle.
COURT: Denied. See court’s findings of fact.
5. If there is a finding for the plaintiff, the finding must be limited to a fair and reasonable charge for the plaintiffs key.
COURT: Denied. See court’s findings of fact.
6. There must be a finding for the defendant because:
(a) There is no evidence as to the fair and reasonable charge for the key that was given the defendant.
COURT: Denied. See court’s findings of fact.
(b) The motor vehicle of the plaintiff was at no time in the control or custody of the defendant.
COURT: Denied. See court’s findings of fact.
(c) The defendant has not been guilty of negligence with reference to the loss of the motor vehicle of the plaintiff.
COURT: Denied. See court’s findings of fact.
(d) There has been no evidence as to the fair and reasonable value of the car on February 21, 1978.
COURT: Denied. See court’s findings of fact.

The court found the following facts:

I find that on September 1, 1977, the plaintiff purchased a Ford Mustang for $500. On February 21,1978, at about 8:00 a.m., the plaintiff drove his motor vehicle to the service station of the defendant for repair of a front headlight. Because of the blizzard of 1978, the defendant told the plaintiff to park the car alongside the curbing of the street and directly in front of the service station, which the plaintiff did. The plaintiff then handed the keys to his car to the defendant which the defendant accepted. The defendant told the plaintiff to return later in the day to pick up his repaired car. The defendant thereupon entered the office of the service station and placed the keys on top of his desk.
[28]*28The defendant worked on the headlight. The defendant opened the unlocked door of the car to turn on the light switch to see if the headlight was still working. After checking the repairs, he left the car without locking the door.
The plaintiff returned to pick up his car about two hours after the defendant made the repairs and learned from the defendant that the keys to the car and the car were missing.
The defendant testified that people waiting for the bus, in front of his service station, frequently enter his office, near where the desk and keys are located, to use the telephone and lavatory.
The car has never been found.
Both the plaintiff and defendant testified that the defendant felt badly about the car being gone; and the defendant reluctantly accepted $6.00 for repairing the headlight.
In the six months that the plaintiff owned the car, he installed a new starter, purchased two new snow tires, and made repairs to the radiator. At the time he purchased the car, it had gone 50,000 miles and he put an additional 12,000 miles on it.
I find that the plaintiff delivered his motor vehicle and the keys to it to the defendant for repairs and that the defendant had control of the plaintiffs motor vehicle and was a bailee for hire. As a bailee for a consideration, the defendant was not an insurer of the property received, but would be liable for damage or loss of the bailed property if this resulted from a failure to exercise that degree of care which would reasonably be expected from an ordinarily prudent person in similar circumstances.
I find that the defendant was negligent in leaving the keys to the plaintiffs motor vehicle on top of his office desk and in plain view and within reach of strangers who entered the office to use the telephone or lavatory on the defendant’s premises.
I find that the plaintiff was in the exercise of due care at the time his motor vehicle was taken.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pyramid Co. of Holyoke v. Oakwood Farms of Rochester, Inc.
1984 Mass. App. Div. 181 (Mass. Dist. Ct., App. Div., 1984)
Waters & Brown, Inc. v. Boston Better Business Machines Co.
1984 Mass. App. Div. 159 (Mass. Dist. Ct., App. Div., 1984)

Cite This Page — Counsel Stack

Bluebook (online)
1980 Mass. App. Div. 26, 1 Mass. Supp. 527, 1980 Mass. App. Div. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hewi-v-cerrione-massdistctapp-1980.