Barrett v. Conragan

• Decision Date: 29 December 1938
• Citation: 302 Mass. 33,18 N.E.2d 369
• Parties: LOUISE E. BARRETT v. ARAM KARNEY CONRAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 33

18 N.E.2d 369

LOUISE E. BARRETT v. ARAM KARNEY CONRAGAN.

Supreme Judicial Court of Massachusetts, Middlesex.

December 29, 1938

November 4, 1937.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Contract, Validity For exemption from liability. Fraud. Negligence, Contractual limitation of liability.

On evidence that a customer of a hair dressing establishment signed, without being given "a chance to read it," a card in which she purported to agree that she would not hold the proprietor responsible for injury sustained in the service to be rendered, and that she was induced to sign by representations of an attendant, who was "in a hurry," that the signature was sought merely to keep a record of customers, a finding was warranted that the signature was procured by fraud rendering the agreement invalid.

TORT. Writ in the Second District Court of Eastern Middlesex dated September 1 1936.

There was a finding for the plaintiff in the sum of $200 by Duane, J., whose report to the Appellate Division for the Northern District was ordered dismissed. The defendant appealed.

D. H. Boyajian, for the defendant. W. J. Walsh, Jr., for the plaintiff, submitted a brief.

DONAHUE, J. The plaintiff, while receiving a treatment of her hair, described in the record as a "permanent wave," at the defendant's place of business, suffered a burn. (See Gavin v. Kluge, 275 Mass. 372 .) At the trial of her action brought in a district court to recover damages for her injury, the judge found for the plaintiff and reported his rulings and his refusal to give certain requested rulings, to the Appellate Division, where an order was entered dismissing the report.

It is not contended by the defendant that the evidence did not warrant a finding that the plaintiff's injury was caused by negligence of the defendant's agent who gave the treatment, or that the plaintiff failed to exercise proper care. The contention is that before the treatment was given, the plaintiff signed an agreement relieving the defendant from liability in damages for any injuries she might receive during the treatment and that she is thereby barred from recovery in this action.

There was in evidence a card signed by the plaintiff at the time of her application for hair treatment on the day of her injury which bore the following printed words: "I the undersigned hereby agree that in consideration of the free services to be rendered to me by Hub Academy [which was the name under which the defendant conducted his business] or their respective agents or students, I shall not hold either or any of them, individually or collectively, responsible for injuries that may be sustained by me in consequence of such services." The plaintiff's testimony as to the circumstances attendant on her signing of the card is here summarized. When she applied for a treatment on the day she received injury an attendant in the office of the defendant requested her to sign a card. The attendant, who "was in a hurry," said: "We want names and addresses of our customers and we keep a record of names and addresses of our customers." The plaintiff was not given "a chance to read it." She had received similar treatments at the defendant's place of business on several prior occasions and each time had signed a card. She did...