Beacon Motor Car Co. v. Shadman , 226 Mass. 570 ( 1917 )

Braley, J.

It appears that this action was brought after a verdict against the plaintiff as the defendant under a former corporate name in Doyle v. Peerless Motor Car Co., ante, 561. And having been held liable to the owner Doyle for the conversion of a motor car through misdelivery either to his chauffeur or to the defendant his daughter, it now seeks damages for the wrong alleged to have been suffered solely through her unauthorized acts. The jury would have been warranted on her evidence in finding that the written order she gave was for the sole purpose of enabling the chauffeur to obtain the car for her own use without having any express or implied authority from her father to ask for its delivery, and on the evidence of the plaintiff’s former “garage foreman,” that the car was delivered “on the strength of the order.” It is not clear on what ground the plaintiff excepted to the introduction in evidence of the correspondence between Doyle and the company; for in the absence of this evidence there is no proof of the bailment under which the jury could find that the company had possession of the car for the purpose of making alterations or repairs when the details had been agreed upon by the parties. The plaintiff as a mere volunteer or intermediary had no cause of action, and the evidence not only was competent, but justified a finding that the plaintiff held the car subject to the express or implied orders of the owner. The delivery to the defendant accordingly was a conversion for which it was liable in damages. Doyle v. Peerless Motor Car Co., ante, 561. By reason of this liability coupled with possession, it had a special property in the car sufficient to support the present action. Way v. Davidson, 12 Gray, 465. Brewster v. Warner, 136 Mass. 57. Fingold v. Schacter, 223 Mass. 274. And the defendant’s first request that on all the evidence the plaintiff could not recover was denied rightly.

The other requests, and exceptions to the exclusion of evidence, need not be considered as the questions raised or some of them may become immaterial or inapplicable at the new trial which must be granted because of erroneous instructions to which the defendant excepted. It' was within the discretion of the judge whether the defendant should be permitted to withdraw the original answer, and his ruling that it must stand, and that the “substitute answer” should be allowed as an amendment only, are not subject to exception. R. L. c. 173, § 48. Howe v. Pierson, 12 Gray, 26.

The case went to the jury solely on the third count of the declaration, which in substance is nothing more than a count in trover alleging a wrongful conversion by the defendant. Iasigi v. Shea, 148 Mass. 538, 539. The original answer and the amendment, however, contained a general denial which put in issue the allegations of the third count, and thereupon the special averments in answer to the second count were neither evidentiary statements against her interest nor admissions by which she was bound, as the jury were incorrectly instructed. R. L. c. 173, § 85. Walcott v. Kimball, 13 Allen, 460, 462. Taft v. Fiske, 140 Mass. 250. Demelman v. Burton, 176 Mass. 363, 365, 368.

The instructions as to the measure of damages also were incorrect. The car having been wrecked while in the defendant’s possession or control, the plaintiff as we have said was responsible to the true owner for the fair market value. Doyle v. Peerless Motor Car Co., ante, 561. While the pleadings and the verdict in that action were introduced in evidence without objection, the defendant, never having been notified to take upon herself the defence of the action, is not estopped even if the case had gone to judgment from contesting the measure of damages. Montgomery Door & Sash Co. v. Atlantic Lumber Co. 206 Mass. 144, 157 and cases cited. If the bailor had sued the defendant Shadman and recovered, and if an action thereafter had been brought against the company, it would have been entitled to credit for the amount recovered less the expenses of the litigation. Jones v. Morgan, 90 N. Y. 4. Or where the action is for injury to the property while in the possession of the bailee, and the bailee by agreement with the bailor sues, he holds the balance above the amount recovered for the injury sustained by him in trust for the bailor. Rindge v. Coleraine, 11 Gray, 157, 162. But the case at bar, being for the plaintiff’s sole benefit, is plainly distinguishable. It therefore can recover only the fair market value of the car at the time of conversion with interest to the date of the verdict, and any disbursements and expenses which may have been incurred in defence of the previous action, having been caused by its own wrongful acts, are not recoverable. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 506. Westfield v. Mayo, 122 Mass. 100, 105.

Exceptions sustained.