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portion of the way which the defendants controlled. Without laying stress upon these points, we are of opinion that the declaration and the opening of the plaintiff's counsel do not show that there was any breach on the part of the defendants of any duty which they owed the plaintiff. The defendants were uot obliged to put up a sign notifying travelers on the public street that the passage-way was not a public way: Galligan v. Metacomet Mfg. Co., 143 Mass. 527; Reardon v. Thompson, 149 Mass. 267; Rodigan v. Boston etc. R. R. Co., 155 Mass. 44; ante, p. 520. Nor can the fact that the passageway was paved be considered an invitation or inducement to the public to enter upon it for their own convenience. The defendants have a right to pave it for their own use or for the use of their customers: Jolinson v. Boston etc. R. R. Co., 125 Mass. 75; Heinlein v. Boston etc. R. R. Co., 147 Mass. 136; 9 Am. St. Rep. 676; Reardon v. Thompson, 149 Mass. 267; Don. nelly v. Boston etc. R. R. Co., 151 Mass. 210; Reiligan v. Boston etc. R. R. Co., 155 Mass. 44; ante, p. 520. There was, in this case, no allegation and no statement that the defendants had any knowledge that the public was using the passage-way, or of such a condition of things that it can be said that they must have known of it. But if it be assumed that there was such use and such acquiescence that a license might be implied, the plaintiff stands in no better position. The general rule is,' as stated by Judge Holmes in Reardon v. Thompson, 149 Mass. 267, 'that a licensee goes upon land at his own risk, and must take the premises as he finds them.' See also Redigan v. Boston etc. R. R. Co., 155 Mass. 44; ante, p. 520; Gautret v. Egerton, L. R. 2 Com. P. 371, 374. A licensor has, however, no right to create a new dan. ger while the license continues: Oliver v. Worcester, 102 Mass. 489, 502; 3 Am. Rep. 485; Corrigan v. Union Sugar Refinery, 98 Mass. 577; Corby v. Hill, 4 Com. B., N. S., 556. So a railroad company which allows the public habitually to use a private crossing of its tracks cannot use active force against a person or vehicle crossing under a license, express or implied: Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368; 87 Am. Dec. 644; Murphy v. Boston etc. R. R. Co., 133 Mags. 121; Hanks v. Boston etc. R. R. Co., 147 Mass. 495; see June v. Boston etc. R. R. Co., 153 Mass. 79, 82. We have no occasion to consider whether the case of Holmes v. Drew, 151 Mass. 578, is open to the criticism that it is inconsistent with the doctrine that a per. son who dedicates a footway to the public use is not obliged to keep it in repair (see Fisher v. Prowse, 2 Best & S. 770, 780, and Robbins v. Jones, 15 Com. B., N. 8., 221), as we are of opinion that that case has no application to the case at bar. In Holmes v. Drew, 151 Mass. 578, the defendant made a continuous pavement in front of his house, partly on his own land and partly on the public land; and it was held that the jury might infer from this an invitation to walk over the whole pavement. In the case at bar, the de. fendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it, even though it were paved."
MURCHIE V. CORNELL
(155 MASSACHUSETTS, 60.) SALE, CONTRACT FOR, REQUIRES ARTICLES TO BE MERCHANTABLR.
A contract for the sale and purchase of ice calls for a merchantable article of
that pame. PROTEST MADE AND SWORN TO BY A PURCHASER of ice on the day of its
arrival is not evidence that the statements therein contained are true, or that the seller had been informed of any defect in the ice, or for any other purpose, unless it be to show that the claim that the ice was defective in quality was not an afterthought. A. M. Knowlton, for the defendants. W. Clifford, for the plaintiffs.
HOLMES, J. 1. The plaintiffs agreed to sell, and the de fendants agreed to buy, a cargo of ice of 360 tons, to be shipped from Pembroke, Maine. From some of the evidence it would seem that the ice was not identified by the contract, but was to be supplied and appropriated to the contract by the plaintiffs, the sellers. From other parts of the testimony it might be inferred that the ice was identified by the contract, but at a time and under circumstances when the defendants had no opportunity to inspect it before shipment. The judge instructed the jury generally that there was an implied affirmation that the ice was of such a kind that it could be shipped, transported by sea, and discharged at New Bedford, as contemplated by the contract, and no other implied affirmation or warranty. If the instruction is wrong in either view which the jury might have taken of the facts, the exceptions must be sustained, and it is unnecessary to consider whether the implication would be more extensive in the former case than in the latter.
In some contracts of the latter kind, when the sale is of specific goods, but the buyer has no chance to inspect them, the name given to the goods in the contract, taken in its commercial sense, may describe all that the purchaser is entitled to demand. So it was held with regard to “Manila sugar," in Gossler v. Eagle Sugar Refinery, 103 Mass. 331.
But in many cases like the present the inference is warranted that the thing to be furnished must be not only a thing of the name mentioned in the contract, but something more. How much more may depend upon circumstances, and at times the whole question may be for the jury. If a very vague generic word is used, like "ice," which, taken literally, may be satisfied by a worthless article, and the contract is a commercial contract, the court properly may instruct the jury that the word means more than its bare definition in the dictionary, and calls for a merchantable article of that name. If that is not furnished, the contract is not performed: War. ner v. Arctic Ice Co., 74 Me. 475; Swett v. Shumway, 102 Mass. 365, 369; 3 Am. Rep. 471; Whitmore v. South Boston Iron Co., 2 Allen, 52, 58.
In a sale of “Manilla hemp," like that of the sugar in Gossler v. Eagle Sugar Refinery, 103 Mass. 331, it was held, in England, that the hemp must be merchantable: Jones v. Just, L. R. 3 Q. B. 197; Gardiner v. Gray, 4 Camp. 144; Howard v. Hoey, 23 Wend. 350, 351; 35 Am. Dec. 572; Merriam v. Field, 39 Wis. 578; Fish v. Roseberry, 22 III, 288, 299; Babcock v. Trice, 18 Ill. 420; 68 Am. Dec. 560; see Hight v. Bacon, 126 Mass. 10, 12; 30 Am. Rep. 639; Hastings v. Lovering, 2 Pick. 214, 220; 13 Am. Dec. 420.
2. The plaintiffs put in evidence tending to show that the defendants never notified them of any defect in the quality or condition of the ice until after this suit. To meet this the defendants offered a protest signed and sworn to by one of them on the day the ice arrived. This protest was no evidence that the statements contained in it were true, or that the defend. ants' story was not false. So far as the plaintiffs' evidence was introduced for the purpose of showing such an acceptance of the ice as to bar the defendants from alleging that it did not satisfy the contract (Morse v. Moore, 83 Me. 473; 23 Am. St. Rep. 783; and Gaylord Mfg.Co. v. Allen, 53 N. Y. 515, 519), the protest, of course, had no bearing. And although it did show that the defendants' story was not an afterthought, it was properly excluded, the plaintiffs, so far as appears, not having taken that specific point: Wallace v. Story, 139 Mass. 115.
Sales. – WARRANTY OF MERCHANTABLE QUALITY is implied in an execu. tory contract to deliver a quantity of corn: Babcock v. Trice, 18 Ill. 420; 68 Am. Dec. 560; Brantly v. Thomas, 22 Tex. 270; 73 Am. Dec. 264; Reed v. Ran. dall, 29 N. Y. 358; 86 Am. Dec. 305; Sweat v. Shumway, 102 Mass. 365; 3 Am. Rep. 471; Forcheimer v. Stewart, 65 Iowa, 594; 54 Am. Rep. 30. See also notes to Bailey v. Nickols, 1 Am. Dec. 84–86; Emerson v. Brigham, 6 Am. Dec. 113-119; Reed v. Randall, 86 Am. Dec. 312–314; and compare Bulwinkle v. Cramer, 27 S. C. 376; 13 Am. St. Rep. 645.
EVIDENCE. – SELF-SERVING DECLARATIONS, WHEN ADMISSIBLE: Soe note to Baker v. Kelly, 93 Am. Dec. 279, 280.
LOMBARD V. LENNOX.
(155 MASSACHUSETTS, 70.) DAMAGES. - INJURY TO PLAINTIFF'S FEELINGS may be included as an ale
ment of damages in an action for making a false statement, the effect of which was to deprive him of employment. Action for causing the discharge of plaintiff from his employment. He was employed as a laborer by a manufacturer of boots and shoes, and there was a general understanding between such manufacturers that in the event of an apprentice of one going to work for another, the latter would, upon his attention being called to the matter, discharge the apprentice. The defendant, seeing plaintiff at his work, believed him to be one of his apprentices, and so informed his employer, who thereupon discharged him. The defendant was mistaken in his belief. The plaintiff asked the court to rule that he "was entitled to damages for the injury to his feelings.” The judge refused to so rule, but gave judgment for the plaintiff for forty dollars. The plaintiff excepted.
W. D. Northend, for the plaintiff.
KNOWLTON, J. We understand the plaintiff's counsel and the presiding justice to have intended to present by this bill of exceptions the question whether, on the facts found, the court might properly infer that there was an injury to the plaintiff's feelings for which he should have compensation, and not the question whether these facts conclusively establish the existence of such an injury.
If the ordinary and natural consequence of the acts set out in a declaration and proved in an action of tort is to cause an injury to the feelings of the plaintiff, and if the acts are done willfully, or with gross carelessness of the rights of the plaintiff, damages may be recovered for mental suffering. This rule has been applied in actions of trespass to real estate, as well as in others: Meagher v. Driscoll, 99 Mass. 281; 96 Am. Dec. 759; Fillebrown v. Hoar, 124 Mass. 580, 585.
The wrongful act of the defendant in the present case was analogous to an ordinary actionable slander. It was a false statement, unjustifiably made, which imputed to the plaintiff a disregard of his obligations as apprentice to the defendant, and which had the effect to deprive the plaintiff of the employment on which he relied for his support. In Markham v. Russell, 12 Allen, 573, 575, 90 Am. Dec. 169, Chief Justice Bigelow says: “Undoubtedly, the material element of damage in an action for slander is the injury done to character. it is not the sole element. A jury have a right also to consider the mental suffering which may have been occasioned to a party by the publication of slanderous words. · When an injury has been inflicted on the reputation of a party sufficient to sustain an action at all, he has a right to recover a reasonable compensation for the distress and anxiety which may have been the natural result of the legal wrong which has been done to him."
In the case at bar, the wrong was inflicted directly upon the plaintiff, by making a false accusation against him, which, if believed, would be likely to cause his discharge from the service in which he was engaged. Such an accusation would naturally cause the plaintiff mental suffering and anxiety, in reference, not only to the estimation in which he would be likely to be held by Pevear, for whom he was working, or by others to whom the fact of his discharge might become known, but also to its effect upon his income, through the loss of his situation.
The plaintiff's request for a ruling was made upon the facts proved, and the refusal seems to have been without reference to any question of pleading. But we are of opinion that the declaration, as well as the facts in evidence, was sufficient to warrant an estimate of damages to the plaintiff's feelings. While there is no express reference to the effect of the defend. ant's wrongful acts on the plaintiff's feelings, the facts alleged are such as would naturally cause the plaintiff mental suffering, and there is nothing to preclude the court from consider. ing all the natural consequences of them.
DamageS, MENTAL SUFFERING, WHEN AN ELEMENT Or: See notes to Wyman v. Leavitt, 36 Am. Rep. 306; West v. Western Union Tel. Co., 7 Am. St. Rep. 534-537. As to the allowance of such damages in actions for libel or slander, see note to Terwilliger v. Wands, 72 Am. Dec. 435. Mental suffering is a proper element of damage, when it is one of the direct, proximate, and natural consequences of an actionable wrong: Larson v. Chase, 47 Minn. 307; 28 Am. St. Rep. 370. It is an element for which damages may be recovered in an action for slander: Cahill v. Murphy, 94 Cal. 29; 28 Am. St. Rep. 83. But where a libel is not actionable per se, mental anguish cannot be allowed as a part of the damages, without proof of some other injury or damage: Hirshfield v. Fort Worth Nat. Bank, 83 Tex. 452; 29 Am. St. Rop. 660.
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