
    MALCOLM G. STEVENS vs. ST. BOTOLPH HOLDING CO.
    Suffolk, ss.
    Municipal Court of the City of Boston
    Argued October 6, 1941
    Opinion filed December 11, 1941.
    Present: Zottoli, Tomasello & Donovan, JJ.
    
    
      W. W. Rich, for the Plaintiff.
    
      Immes & Cottrell, for the Defendant.
   Donovan, S. J.

This is an action of contract or tort in which the plaintiff seeks to recover for the loss of certain articles of personal property taken from his automobile while said automobile and its contents were in the possession of the defendant, a corporation which conducts a public garage for the storage of automobiles for hire in said Boston.

The plaintiff’s declaration contains four counts. Counts No. 1 and 2 are in contract. Counts No. 3 and 4 are in tort. The court made a general finding for the plaintiff on count No. 2 which, in effect, alleges a bailment of the plaintiff’s automobile and contents for hire. The ad damnwm of the plaintiff’s writ is $300.00.

The only evidence at the trial was “evidence which warranted the following findings of fact” which the court “expressly” found, namely:

“On Saturday, February 8, 1941, at about 1:15 o’clock P. M. the plaintiff drove his car into a public garage operated by the defendant. In the rear compartment he had several hundred small aluminum castings and two sheets of aluminum — all worth $237.20. He also had in that compartment a radio worth $49.75 and a spare tire, tube and rim worth $40.50. The value of all this personal property was $327.45. He told one of the defendant’s employees that he had valuable property locked in this rear compartment and that he did not care to leave the key with the car and have an attendant park it in the garage, as he wanted to park it himself and leave it all locked up and take the keys away with him. This employee spoke to the defendant’s foreman, who directed the plaintiff to a special place on the ground floor of the garage reserved for cars of the officials of the garage, and the plaintiff himself parked the car in that space, being assisted by the employee. He locked the rear compartment, the transmission and the doors of the car, took the keys with him and went with his son to a school-boy hockey game. On his return about 4 or 5 hours later he paid the defendant’s parking charges of fifty cents and drove home. On the way home he heard a rattling sound from the rear of the car, and on getting out and looking at the rear compartment he found that the lock thereof had been forced open and all the personal property listed above was missing. He later paid $5.50 for a new lock.

I find that while the plaintiff’s car was in the defendant’s garage the lock of the rear compartment was forced, and the personal property stolen, by some person unknown.

That Saturday afternoon was a busy day in the garage and there were seven employees on the ground floor from time to time. At the rear of the defendant’s garage, and normally separated from it by closed and locked doors, was an adjoining garage belonging to a taxicab company. At rush times the defendant had the right to open these doors and use part of the taxicab company’s garage for the parking of its (the defendant’s) customers’ cars. That was the situation on this particular Saturday afternoon and the plaintiff’s car was parked with its rear end facing the taxicab company’s garage, the doors being open.

I find that the plaintiff intended to, and did, entrust his car and its contents to the custody of the defendant, and the defendant, knowing that the car contained personal property of value, accepted custody of both the car and its contents as a bailee for hire. I find that the plaintiff did not rely solely on the lock of the rear compartment to protect his property. He relied also on the care and protection of the defendant and its employees, and the defendant knew it.

I find that the plaintiff’s car was broken into, and the personal property stolen, through negligence on the part of the defendant’s employees. I find no gross negligence, as alleged in Count 4; and no conversion by the defendant to its own use, as alleged in Count 3; and no bad faith on the defendant’s part.”

The evidence which warranted the finding of these facts was the only evidence offered at the trial.

The defendant seasonably filed seven requests for findings of fact, all of which were denied by the trial judge. Inasmuch as the defendant claimed no grievance because of the denial of these requests, and no such grievance was reported, the denial of said requests is not before us for consideration, and for these reasons we have not considered the denial thereof.

The defendant also seasonably filed seven requests for rulings of law. All of these requests were properly denied because they were based upon evidence not offered at the trial, or were requests for rulings not applicable to the facts “expressly” found by the trial judge.

As argued by counsel for the defendant, “the only issue in this case is whether the defendant was a bailee for hire of all the articles of personal property which the plaintiff left in his automobile when he parked his automobile in the defendant’s garage”. Upon the evidence this issue resolves itself into 'a question of fact.

The defendant contends that as a matter of law there was no bailment for hire of the contents of the plaintiff’s automobile and in support thereof cites the eases, D. A. Schulte Inc. v. North Terminal Garage. Co., 291 Mass. 251 at 257, Davis v. Gay, 141 Mass. 531, Briggs v. Dearborn, 99 Mass. 50 at 53, none of which are applicable to the question here involved because those cases were decided on the ground that at the trial there was made a finding of fact that the defendant had no knowledge of the contents of the article bailed for hire or on the ground that at the trial there was a finding that he was not in fact a bailee for hire of the contents of the particular article bailed, whereas, in the instant case, there was evidence which warranted the finding, and the court expressly found, among other facts hereinbefore set forth, “that the plaintiff intended to, and did, entrust his car and its contents to the custody of the defendant, and the defendant, knowing the car contained personal property of value, accepted custody of both the car and the contents, as a bailee for hire”.

The court also made a general finding for the plaintiff in the sum of $332.95 on Count No. 2 of the plaintiff’s declaration. This finding exceeded the ad damnum of the plaintiff’s writ by the sum of $32.95, all of which the trial judge reported to this division because the defendant claimed to be aggrieved thereby. This question was not argued by the defendant, and it is, therefore, deemed to have waived its alleged grievance in this connection. But even if said grievance was not so waived the fact that the general finding exceeded the ad damnum of the plaintiff’s writ is not prejudicial error because at any time prior to the time when, under the Buies of this court, the case goes to judgment, the court of its own motion may grant leave to the plaintiff to increase the ad damnum of his writ so as to include the excess of $32.95, or allow the ad damnum to be so increased upon motion made by the plaintiff for the purpose, and in the absence of any such action by the court up to the time when the case goes to judgment, as aforesaid, it would then be the duty of the Clerk of this Court to enter judgment for the plaintiff in the sum of the ad damnum of the plaintiff’s writ or in the sum of $300.00. Sullivan v. Jordan, 1941 Adv. Sh. 1407.

We find no error in any of the rulings made by the trial judge and no reversible error in its general finding for the plaintiff in a sum $32.95 in excess of the ad damnum of the plaintiff’s writ. Beport dismissed.  