Barabe v. Duhrkop Oven Co.

• Decision Date: 02 January 1919
• Citation: 231 Mass. 466,121 N.E. 415
• Parties: BARABE v. DUHRKOP OVEN CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 466

121 N.E. 415

BARABE

v.DUHRKOP OVEN CO. (two cases).

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 2, 1919.

Exceptions from Superior Court, Bristol County; Robert F. Raymond, Judge.

Actions of tort by Alcid V. Barabe and by Emeli Barabe against the Duhrkop Oven Company. Verdicts for plaintiffs, and defendant excepts. Exceptions overruled.

J. P. Doran, of New Bedford, for plaintiffs.

Eaton & McKnight and Stanley W. C. Downey, all of Boston, for defendant.

BRALEY, J.

The exceptions to the instructions are not well taken, and the presiding judge rightly submitted to the jury the question of the defendant's liability. It manufactured and installed for the plaintiff Alcid Barabe one of its patent baking ovens in accordance with the terms of a conditional contract under which title did not pass to the vendee upon completion and installation, but was to be transferred by a bill of sale when the contract price had been fully paid. The plaintiff, who never has acquired title, used the oven in his bakery, and within four months from the date of the contract, and while it was being operated at the requisits temperature for baking bread, fire broke out between the top of the oven and the ceiling, which the jury would have been warranted in finding was caused solely by the defendant's negligent workmanship.

The defendant had bound itself to furnish an oven which was not defective when subjected to the conditions of operation shown by the contract. And the jury were correctly instructed that while the defendant was under no obligation to remove the truss beam directly over, and in contact with the masonry of the arch at the top of the oven, to which, as the jury could find, the fire bursting through the bricks was communicated because the interstices had not been sufficiently filled with mortar, it was required to use reasonable care to protect the truss beam from combustion. It the company's faulty performance of the work caused the fire, it is liable in damages even if the exact form in which injury to the plaintiff might result was not foreseen. Hill v. Winsor, 118 Mass. 251;Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 231, 87 N. E. 567;D'Almeida v. Boston & Maine Railroad, 209 Mass. 81, 88.95 N. E. 398, Ann. Cas. 1913C, 751.

The plaintiff in the second case is the mother of Alcid, and when the oven was built and when the fire occurred, she was the owner of the ‘real estate’ occupied by her son for the purposes of his business. It is contended that the verdict assessing damages for the injury to the buildings should be set aside because the fact of her ownership was unknown to the defendant, and no contractual...