Bradbury v. Central Vermont Ry.

• Decision Date: 31 January 1938
• Citation: 12 N.E.2d 732,299 Mass. 230
• Parties: STELLA D. BRADBURY v. CENTRAL VERMONT RAILWAY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 230

12 N.E.2d 732

STELLA D. BRADBURY v. CENTRAL VERMONT RAILWAY, INC.

Supreme Judicial Court of Massachusetts, Middlesex.

January 31, 1938

April 7, 1937.

Present: RUGG, C.

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

Deceit.

This court, acting under G. L. (Ter. Ed.) c. 233, Section 70, adjudged that, by the law of Vermont, a railroad corporation was liable in tort for damages caused by innocent reliance upon a representation, made by its agents in that State in response to a request by a shipper for complete information as to whether he could ship Christmas trees into Canada, that such shipment could be made upon payment of a small importation fee, where it appeared that the representation was false because such importation was prohibited by a Canadian regulation unknown to the agents.

CONTRACT OR TORT. Writ in the Superior Court dated February 7, 1933. A verdict for the plaintiff in the sum of $900 was recorded with leave reserved; and thereafter Cox, J., denied a motion that a verdict be entered for the defendant and reported the case.

J. T. Phelps, (G.

W. Howe with him,) for the defendant.

J. C. Donohoe, for the plaintiff.

RUGG, C.J. This is an action of contract or tort. The declaration contained four counts, but at the trial the plaintiff waived the first three counts and elected to proceed on the fourth count alone which was in tort. The allegations of the fourth count in substance are that the plaintiff, having received an order for the shipment of a carload of Christmas trees to Windsor Ontario, Dominion of Canada, inquired of the defendant whether the plaintiff could make such shipment and whether there were any regulations which would prevent the delivery of such shipment at that destination; that the defendant, its agents and servants, "without making any investigation or having made a negligent investigation, informed the plaintiff, or having made an investigation, negligently informed the plaintiff well knowing that the plaintiff was relying upon such information, that such shipment might be made, and thereupon the plaintiff, relying upon the representations of said defendant" and its agents, shipped a quantity of Christmas greens and greenery on a freight car furnished by the defendant, prepaying the freight, to said Windsor; that the consignee was prohibited from receiving such carload under a quarantine law in effect March 18, 1925; all to the great damage of the plaintiff. This described an action of tort founded on false representations by the agent of the defendant that the plaintiff could send Christmas trees into Canada. In substance and effect this is an allegation that the defendant knew, or should have known if care had been exercised, that the law of Canada was not as represented. In other words, it contains an allegation that the defendant negligently misrepresented to the plaintiff that she could ship Christmas trees into Canada.

There was evidence in its aspect most favorable to the plaintiff tending to show that in 1931, and for several years prior thereto, the plaintiff was engaged in Vermont in the business of cutting Christmas trees and shipping them in carload lots to various cities in the United States. On the morning of November 24, 1931, there was delivered to the plaintiff by the passenger and freight agent of the defendant at Richmond, Vermont, a telegram addressed to the plaintiff from her agent in Detroit, Michigan, informing her that Mossman Bros. Limited, of Windsor, Ontario, in the Dominion of Canada, had ordered a carload of Christmas trees to be shipped immediately. The plaintiff, after reading the telegram, said to the agent of the defendant, "Can I ship Christmas trees into Canada?" The reply was, "Yes." Later the same morning the plaintiff went to the railroad station of the defendant in Richmond and again saw the agent (one Grace). The plaintiff's husband, in the presence of the plaintiff, said to him, "Mrs. Bradbury tells me you say she can ship this car to Canada, but, before we ship, I want you to send a telegram to the general freight office of the Central Vermont Railway in St. Albans and get the whole dope on the car. We will not ship until we get full particulars. We won't accept the order until you hear from St. Albans." Grace said that "he would send a telegram." Two telegrams were sent by him. A reply from the general freight agent of the defendant at St. Albans, Vermont, was received, to the effect that "Customs Agent advises Xmas trees to Windsor, Ont. duty free but import tax 1 per cent of value will be assessed." Neither the plaintiff nor her husband saw or heard read the telegram sent or the telegram received by Grace. Shortly after Grace received the telegram from the general freight agent, he went out into the station yard, saw the plaintiff, and said to her, "I have heard from St. Albans. There is no duty on Christmas trees into Canada, but there is an entrance fee of 1 per cent of the value." On December 7, 1931, the defendant issued to the plaintiff a domestic straight bill of lading and the plaintiff shipped the Christmas trees to Windsor, Ontario. The freight was prepaid. Unknown to both the plaintiff and the defendant, there was a regulation of the Department of Agriculture of Canada, effective since March 18, 1925, prohibiting the importation of conifers and other forest products. The trees shipped by the plaintiff were within the terms of this prohibition and were not, under the law of the Dominion of Canada, permitted entry under any conditions into the Dominion of Canada from the State of Vermont. Subsequent efforts of the plaintiff to sell the trees were unavailing and they were later destroyed. Neither the plaintiff nor the defendant's agent, Grace, knew of this prohibitive regulation until the carload of Christmas trees had arrived at Windsor, Ontario. And when the agent replied in the affirmative to the plaintiff's question, "Can I ship Christmas trees into Canada?" he did not know that the statement was false. When, after receiving the telegram from St. Albans, he made the statement to the plaintiff, that there was no duty on Christmas trees into Canada, but an entrance fee of one per cent of the value, he did not know that the statement was false. There was no evidence that the defendant, its agents, or officers knew of the existence of the Dominion of Canada Destructive Insect and Pest

Act, or of Regulation No. 5 thereunder, which constituted the prohibition of the importation of Christmas trees.

The trial judge ruled that the rights of the parties must be determined in accordance with the law of Vermont, where the cause of action arose. The jury were instructed to determine whether the conduct of Grace, the agent of the defendant, was negligent and, if they found that it was, they were to return a verdict for the plaintiff. It was agreed by counsel that in the event of a verdict for the plaintiff the damages were to be assessed in the sum of $900. The jury returned a verdict for the plaintiff in that sum. A motion for a directed verdict in favor of the defendant was denied. Leave was reserved to enter a verdict for the defendant under G. L. (Ter. Ed.) c. 231, Section 120, but motion by the defendant for the...