Rubin v. Huhn

118 N.E. 290, 229 Mass. 126, 4 A.L.R. 1190, 1918 Mass. LEXIS 786

Opinion

Pierce, J.

The defendant assumed at most the obligation of a gratuitous bailee when, in the lobby of a theatre crowded with people, he received from one Wyner a pair of diamond earrings in a box and at the request of Wyner then and there undertook to inspect, examine and appraise them without reward. Foster v. Essex Bank, 17 Mass. 479. The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith, that is, shall use the degree of care in the performance of the undertalcing which is measured by the carefulness which the depository uses toward his own property of similar land under like circumstances. Foster v. Essex Bank, ubi supra. Whitney v. Lee, 8 Met. 91. Smith v. First National Bank in Westfield, 99 Mass. 605.

In an action of contract or of tort for breach of duty imposed by law, the mere fact “that the defendant dropped one of the earrings and it was lost,” is not sufficient evidence of his gross negligence to warrant a finding for the plaintiff. The finding of the judge “that the defendant, in handling and dealing with the earrings did not exercise such care as a reasonably prudent man would have exercised under the circumstances,” imposed upon the defendant, a gratuitous bailee, a standard of care which measures the duty of a bailee for hire. This was manifest error.

Upon the reported facts the failure to return the lost earring is not a conversion. “The action of trover is not maintained by proof of negligence, but only of misfeasance amounting to a conversion.” Foster, J., in Hall v. Boston & Worcester Railroad, 14 Allen, 439, 443.

As regards the other earring, the facts found warrant a finding that the defendant, in the possession of the earring, on demand refused to deliver it to the owner, the plaintiff. Moreover, the testimony of the defendant would warrant a finding that he delivered the earring to a person unauthorized to receive it by the owner or by the person from whom the defendant received it. An action of trover will lie upon either view of the facts. Devereux v. Barclay, 2 B. & Aid. 702. Claflin v. Boston & Lowell Railroad, 7 Allen, 341. Saxon Mills v. New York, New Haven, & Hartford Railroad, 214 Mass. 383, 391, and cases cited.

At the close of the evidence the defendant asked the judge to rule "that upon all the evidence judgment must be directed for the defendant.” In effect, this was a request to rule that the evidence was insufficient in any legal form of declaring to justify a finding for the plaintiff for any amount. Ideal Leather Goods Co. v. Eastern Steamship Corp. 220 Mass. 133. Brown v. Pelonsky, 210 Mass. 502, 506. The request was refused rightly.

However, it is manifest that judgment should not be entered for $85, the value of both earrings, but should be in such amount as upon hearing shall be determined was the value of the single earring at the time it was converted. Loanes v. Gast, 216 Mass. 197, 199.

It follows that the order of the Appellate Division of the Municipal Court of the City of Boston, “Report dismissed,” must be affirmed.

So ordered.