
    
      Municipal Court of the City of Boston
    
    No. 196309
    FLORENCE WILKINS v. FIRST FRANKLIN PARKING CORPORATION
    Argued: Nov. 8, 1968
    Decided: Nov. 19, 1968
    
      
      Present: Adlow, C.J. Shamon & Morrissey, J.J.
    Case tried to-J.
   Adlow, C. J.

Action of tort to recover for damage to an automobile while it was parked in the garage of the defendant.

There was evidence that on March 7,1966 the plaintiff drove her car into the defendant’s parking garage. She stopped at the front entrance, received a parking ticket and then proceeded into the garage and parked her car. She left her keys in the vehicle, because she did not have a space up against the wall. She then left the garage by a pedestrian door leading into Franklin Street. This door was unlocked and was used by patrons to enter and leave the garage. There was no attendant at this door. Later in the day she returned to the garage by the same door thru which she left. She discovered that her car had been moved, and that it had damage on the right side and right front. She went up one flight to report the damage to the attendant. The attendant advised her that someone tried to steal her car but crashed. There was evidence that as a result of the damage the car was depreciated $400. in value.

There ivas further evidence that there was only one exit for a vehicle to leave the garage, which exit was guarded by an attendant. There was evidence by the plaintiff that the attendant told her that a young man was attempting to steal the car and smashed it; that he was chased by the attendant and escaped.

The defendant requested the court to rule that “in order for the plaintiff to recover the plaintiff must show that the negligence of the defendant or its agents, servants, or employees proximately caused the plaintiff’s damage; that there has been no showing of negligence on the part of the defendant-and therefore the plaintiff has failed to prove a prima facie case.” The court denied this request and made these findings of fact:

“I find that the plaintiff’s ear was damaged as a result of persons unknown striking the car and damaging it and abandoning it. I further find that there was evidence of an unlocked door on Franklin Street through which anyone could gain access to the garage. I further find that the bailee for hire was negligent in not providing that care that the ordinary bailee is required to provide and that such failure was the proximate cause of the damage to the plaintiff’s property.”

There was a finding for the plaintiff. Being aggrieved by this ruling and the findings, the defendant brings this report.

The plaintiff’s right to recover depends on the nature of the defendant’s undertaking. As a bailee for hire the defendant’s obligation was to use due care with respect to the car. Stevens v. St. Botolph Holding Co., 316 Mass. 238, 240. He was not in any sense an insurer of the car committed to his care. Hanna v. Shaw, 244 Mass. 57, 59. The caution he exercised must be consistent with the importance and seriousness of his responsibility as a care taker. Morse v. Homer’s Inc., 295 Mass. 606, 609. Guided by these principles can we say that the defendant failed in its undertaking to the plaintiff? The facts in issue differ markedly from those in the case of Greenberg v. Shopper’s Garage Inc., 329 Mass. 31. Where the defendant’s agents received notice at time bailment was created that the car entrusted to the defendant contained a valuable shipment of furs. From the evidence, thieves broke and entered the car that was parked in one of the upper stories of the garage and removed the contents of the car and carried it away. On these facts a finding for the plaintiff was sustained. But these facts differ radically from the facts under review.

In the instant case the garage of the defendant had only one exit by which a vehicle could leave. This exit was under surveillance of employees of the defendant. While it is true that patrons could enter or leave the garage through a door leading to Franklin Street, this fact in and of itself would not amount to negligence even though the door was unattended. What is 'significant in the cause under review is (1) the fact that the plaintiff left her key in the car (2) that she had not been requested by the defendant’s agent to leave the key in her car (3) that the defendant’s agent actually came upon the unknown thief who was attempting to steal the car while the car was in the garage and actually prevented him from stealing it. All the conceded facts contradict the theory on which the plaintiff relies —• to wit — that the damage to the plaintiff’s car was the consequence of the defendant’s failure to use proper care in protecting the plaintiff’s car. We are not prepared to say that there is a duty on every garage owner to keep an attendant at every door.

Nor are we prepared to say that one who leaves a key in the ignition of a car is in a position to complain if one by stealth sets it in motion. The problem of this court might be more serious if the culprit had driven away. In those circumstances the question of negligence might have been an open one. Hanna v. Shaw, 244 Mass. 57. But in this cause the defendant’s agent apprehended the thief in flagrante delicto, and he fled. No one will seriously contend that there was a duty on the defendant to maintain continuous surveillance over cars under its custody.

In our opinion the facts in the cause under review are much more favorable to the defendant than in the case of Soutier v. Kaplow, 330 Mass. 449, where a finding in favor of the defendant was sustained.

The court erred in finding for the plaintiff. Finding for the plaintiff vacated. Finding to be entered for the defendant.

Michael E. Gould of Boston for the defendant  