Clapp v. Kemp

Decision Date04 May 1877
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesHattie A. Clapp v. Robert Kemp & wife

Suffolk. Tort for personal injuries caused by the plaintiff falling into a coal-hole in front of and connected with a store in Boston, of which the defendants were the lessees and occupants under a written lease. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

There was evidence tending to show that the store and cellar and coal-bin were, at the time of the accident, and had been since the preceding October, in the sole occupation and control of R. H. Kemp. It was proved that one Armor, a coal dealer, made an agreement in October, 1874, with R. H. Kemp and upon his credit alone, by which Armor was to furnish him the coal for the store, for that fall and the ensuing winter and deliver it in the cellar without any trouble to R. H. Kemp, for eight dollars per ton; and that, pursuant to the agreement. Armor caused coal to be hauled and delivered in the coal-bin, among other times, on December 15, 1874.

There was evidence tending to show that the coal was all hauled and delivered through the coal-hole into the bin by one and the same man, who was then in the employ of Armor, as a teamster; that when he came with the first load, on October 21, 1874, an employee of the store showed him the way down to the coal-bin, and how and where the cover of the coal-hole was fastened; that with the exception of thus showing the teamster down to the coal-bin, nobody connected with the store had anything to do with putting in the coal, by unfastening or removing the cover of the coal-hole, or in any other way, nor in any way directed or dictated to or controlled the teamster in the delivery thereof, either as to time, manner or anything else; that the teamster, when he put in the load of coal on December 15, 1874, opened the coal-hole himself by prying up the cover with his coal-shovel as he stood on the sidewalk by the load of coal near the coal-hole, which was a few feet from the store; and the alleged injuries happened while the teamster was delivering the load of coal into the bin, and through his negligence either in removing the coal-cover or in not properly guarding the coal-hole while he was putting in the coal.

The defendants contended that, even though the jury should find that they were the real occupants of the store at the time of the injury, and that R. H. Kemp, in all that he did, was only their agent, and hence the contract with Armor to...

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25 cases
  • Chandler v. Gloyd
    • United States
    • Missouri Supreme Court
    • 9 Marzo 1909
    ... ... McInerney v. Canal Co., 151 N.Y. 411; Railroad ... v. Keighron, 74 Pa. St. 316; Clapp v. Kemp, 122 ... Mass. 481; Atherton v. K. C., C. & C., 106 Mo.App ... 591; Wood on Master & Servant, sec. 279; Walker v ... Railroad, 121 ... ...
  • Arkansas Land & Lumber Company v. Secrist
    • United States
    • Arkansas Supreme Court
    • 24 Mayo 1915
    ...66 Minn. 76; 9 App. (N. Y.) 145; 86 Minn. 458; 154 Mass. 419; 78 Pa. 25; 88 Pa. 269; 68 Minn. 23; 76 S.W. 987; 91 Tex. 18; 206 Ill. 283; 122 Mass. 481; N.C. 151; 66 L. R. A. 941; 111 Ark. 91. 5. Where an injury way be due to unsafe plans furnished by the employer, he is liable for such inju......
  • Benjamin v. Metropolitan Street Railway Co.
    • United States
    • Missouri Supreme Court
    • 10 Marzo 1896
    ...not this defendant is liable because, under the facts, Seymore was not the servant of defendant. Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; McCullough Sherman, 105 Pa. St. 169; Fuller v. Bank, 15 F. 875; Sweeney v. Murphy, 32 La. Ann. 628; Stevens v. Armstrong, 6 N.Y. 4......
  • Knicely v. West Va. M. R. Co
    • United States
    • West Virginia Supreme Court
    • 31 Marzo 1908
    ...220, in which the person held to be a servant had a contract to build a wharf, furnishing all the materials and labor. In Clapp v. Kemp, 122 Mass. 481, the plaintiff had been injured by falling through a coal hole connected with defendant's store while a teamster, employéd by a coal dealer,......
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