Lubell v. Turner

2 Mass. App. Dec. 45

• Court: Massachusetts District Court, Appellate Division
• Decided: December 23, 1941
• Docket: No. 150977
• Status: Published

Opinion

PUTNAM, C. J. (Zottoli, J., and Gillen, J.)

The trial judge expressly found as a fact that the plaintiff’s rugs were lost while in the possession of the defendants, who operate a storage warehouse, and made a general finding for the plaintiff.

The real question in the case, which is raised by the plaintiff's sixth request, is whether the plaintiff has sustained the burden of proving that the.rugs were delivered to the defendant. If, in the report, there is any evidence that the rugs came into the defendants’ possession this ruling was properly denied.

The plaintiff testified that on September 12, 1938, the two rugs in question, with others, were removed from her then home by the Clark Moving Company. One Clark, manager of ■ that company, testified that in September, 1938, he moved the plaintiff’s furniture and rugs, including everything that was in the home, to the defendants’ warehouse, and followed the moving truck in his own automobile, arriving there between 4.30 and 5.00 o’clock P. M. He placed all the rugs on the elevator and left them there at the direction of the defendants’ watchman, the electric power being shut off at the time. There was further evidence that in December, 1940, he moved the plaintiff’s furniture and rugs from the defendants’ warehouse to the plaintiff's new home. Shortly thereafter the plaintiff found not only that the two rugs in question were missing but that she was the possessor of a lamp, a chair and a vacuum cleaner which did not belong to her. The truck was a closed van, which made no stop on the way from the warehouse to the plaintiff’s new home, and had no lock on its rear doors. There was further evidence that at times goods for storage remained overnight on the elevator at the warehouse, or in corridor, before being marked and stored the next morning. The plaintiff testified that when she discovered that the rugs were missing she telephoned the defendant Greeley, who was the manager of the warehouse, and he told her not to worry, as he would find them.

From this evidence the trial judge could have concluded, as he did, not only that the rugs came into the defendants' possession and were lost while there, but that they were lost through negligence of the defendants' employees.

It is true that there is an impressive body of evidence introduced by the defendant to the effect that only twelve bundles of rugs were received and that twelve bundles were delivered by the defendants to, and receipted for by, the Clark Moving Company. But, under familiar principles, the judge was not bound to believe this evidence.

Report dismissed.