Opinion
April 30, 1982.
Present: Canavan, Hamlin Mulligan, JJ.
Bailment, Motor vehicle; Duty of reasonable care. Practice, Civil, Findings; Requests for rulings; Petition to establish report.
Report of court's dismissal of plaintiff's report. Action heard by Glynn, J.
John F. Burke, Jr. for the plaintiff.
Edward R. Redd for the defendant.
This is a petition to establish a report brought by the plaintiff. The report was disallowed by the trial judge.
The plaintiff in this action brought suit against the defendant claiming that the defendant, as operator of a parking garage, failed in its duty to exercise reasonable care, and as a result, and automobile belonging to the plaintiff, lawfully parked in the defendant's garage, was stolen. After trial, judgment entered for the defendant based on a finding that the defendant took reasonable precautions to prevent the theft of automobiles parked at its facility.
The plaintiff, as the sole ground of his appeal, claims to be aggrieved by the trial judge's ruling on his request number 9. Request for ruling No. 9 is as follows:
9. The law and the evidence warrant a finding that the defendant/bailee for hire, through its servants, agents and/or employees, has converted the bailed property owned by the plaintiff and bailed by a third person with the plaintiff's permission, by misdelivery of the property and refusal to deliver the property upon demand to the plaintiff or the person who bailed the property with the plaintiff's permission, and that the defendant is liable for this conversion. Reni v. Courtney, 4 Mass. App. Ct. 235 (1976); Parker v. Lombard, 100 Mass. 405 (1868); Coles v. Clark, 57 Mass. (3 Cush.) 399 (1849); RESTATEMENT (SECOND) OF TORTS §§ 234, 235.
The court acted upon this request as follows:
"Granted, but see finding."
The trial judge made substantial written findings of fact which support his ultimate finding that the defendant took reasonable precautions to prevent the theft of motor vehicles.
The allowance of the plaintiff's Request for Ruling No. 9 presents no legal issue for review by this tribunal. It is well established that a request of a ruling that the evidence "warrants" a certain finding does not compel or request such a finding. Alley v. Oakes, 55 Mass. App. Dec. 82(1974). It is not error to grant such a request and then find for the opposing party. Meighan v. Elliott, 29 Mass. App. Dec. 35(1964); Storella v. Santo, 59 Mass. App. Dec. 129(173). It would, however, be error to deny this request if there was evidence that could possibly support such a finding. Alley v. Oakes, supra.
The trial judge properly disallowed the report. The petition to establish a report is hereby denied.