Bellino v. Columbus Const. Co.

• Decision Date: 21 June 1905
• Parties: BELLINO v. COLUMBUS CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 430

74 N.E. 684

BELLINO v. COLUMBUS CONST. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1905

COUNSEL

H. J. Jaquity, for plaintiff.

Chas G. Bancroft, for defendant.

OPINION

BARKER, J.

The plaintiff procured Italian laborers for the service of the defendant, a corporation engaged in the construction of a public work at Weston. He had erected a temporary building on land of another person, near the locality of the work. In a part of this building he kept goods, which by an agent he sold to the laborers. The rest of the building was fitted with bunks for sleeping places, and was occupied by the laborers; and for the use of which they paid him. When cold weather came, they demanded a fire to heat their quarters and threatened to quit work unless a stove and fuel were furnished. One Keefe was the defendant's foreman. He requested the plaintiff's agent to provide a stove to keep the laborers comfortable, and the agent promised that he would write to the plaintiff, and, when he heard from him would get a stove. Some days after, Keefe told the agent that, unless the stove was put in, he (Keefe) himself would order it, give it to the men, and let them set it up. To this the agent objected, and told Keefe that he had no right to put in a stove without the permission of the plaintiff. Finally Keefe procured a stove, and had it set up by a carpenter, and thereafter furnished the laborers with coal and wood, and they constantly kept up a fire; themselves making the fires, and helping themselves to the defendant's wood and coal. There was no zinc under the stove, and the floor of the building was of wood, with wide cracks between the boards. About 100 feet away the defendant had a storehouse, in which barrels of oil and gasoline were kept, but no under lock and key, and to which the laborers had access for the purpose of filling torches which they used to give light to work by in a tunnel. The laborers who built the fires frequently helped themselves to the gasoline and used it in kindling fires in the stove. Keefe became aware of this, and called to it the attention of the agent, and told him he must stop it, but did nothing to secure the gasoline, although he notified the employé in charge of the gasoline to prevent the laborers from getting it to use in the stove. The plaintiff's agent knew that the men were lighting the fires with the gasoline, but it did not appear that he tried to prevent its use. Some three weeks after the stove had been set up, as a loborer was kindling the fire, there was an explosion of gasoline, a few drops fell on the floor, and a fire ensued, which consumed the building and the plaintiff's goods therein. The case was sent to an auditor, who found that the loss caused by the fire to the plaintiff was $1,622.64, but, after stating in his report that and other facts, found for the defendant. Thereafter the case was tried by the court without a jury. The auditor's report was read. The defendant admitted that the plaintiff himself was in New York continuously from November 5th to November 18th, the fire having occurred on November 22d. The plaintiff testified to his whereabouts from November 18th to November 23d, and his evidence tended to show that he was not at Weston after the stove was set up and before the fire. The auditor having stated in his report that,...