Corrao v. Sears, Roebuck & Co.

Decision Date29 June 1937
Citation298 Mass. 23,9 N.E.2d 378
PartiesALTHEA CORRAO v. SEARS, ROEBUCK AND CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

April 7, 1937.

Present: RUGG, C.

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

Sale, Installation by seller. Agency, What constitutes. Negligence, In installation of oil burner, Contributory. Witness, Expert.

Evidence warranted findings that the seller of an oil burner agreed to deliver it and install it and that one who delivered it and installed it was an agent of the seller.

Evidence warranted a finding of negligence on the part of one acting for the defendant in installing an oil burner purchased by the plaintiff under a contract requiring the defendant to install it and did not require as a matter of law a finding of contributory negligence on the part of the plaintiff, who was injured when the burner exploded as he was attempting to use it.

Generally determination of the preliminary question, whether a witness offered as an expert is qualified as such, rests with the trial judge.

TORT. Writ in the Superior Court dated December 11, 1931. The action was tried before Beaudreau, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.

O. Gallagher, for the plaintiff. J. W. Black, Jr., for the defendant.

QUA, J. The plaintiff rests her case upon alleged negligence of the defendant in the manner of installing an oil burner in the plaintiff's kitchen range. We think that she was entitled to go to the jury.

There was evidence that the defendant had advertised to sell, deliver and install such burners for $24.95; that the plaintiff purchased of the defendant one of the advertised burners for $15 down and her promise to pay the balance of $9.95 to the man who would come to deliver and install the burner; that "the manager told her he would send one of their own men to deliver and install it"; that the man who brought and installed the burner said he was "from Sears Roebuck"; that the plaintiff paid him the $9.95, and he gave her a receipt headed, "Sears, Roebuck and Co. Boston, Mass." and signed "Leo Broderick"; and that the plaintiff never received any further bill from the defendant. This evidence would support findings that the defendant's undertaking included the installation of the burner and that the man who installed it and receipted for the balance of the purchase price was the servant of the defendant.

When the burner was installed this man gave the plaintiff directions as to how it should be used. The plaintiff noticed "a loud roaring noise and flames racing up the chimney and flames in the ash pit." The man said "that would burn down and burn all right." They waited for a time, but the flames and noises continued, "although not quite so bad." The noise remained the same after the man went away. The plaintiff turned the burner off that night. When she attempted to light it the next day, "it seemed to act very odd," and she shut off the burner. She tried to light it again and saw oil flowing from the burners into the ash pit. The flames were high, and the odor was very objectionable, and it was smoky, so she shut it off. She then "observed oil running all in the ash pan" and that the burners which held the wicks were tipped to the front and that the oil came from there. She turned the oil on again and noticed oil overflowing from the front of the burner castings into the ash pit. She did not light it the second time. The plaintiff then went to New Hampshire for about ten days and upon her return she lit one wick. She then noticed that the whole oil pan under the burner was covered with oil. She could see the marks "where it was saturated in." "You couldn't sop it up." It had overflowed, and she saw it overflowing from the front. There were high yellow flames. There was the same roaring sound and smoke. Oil that had dripped into the ash pit caught fire. About three hours later she attempted to light the second wick. In accordance with the printed directions which she got with the burner, she opened the dampers, turned on the oil valve for three quarters of a minute and then shut it off, and as she went to lift the lid to light the burner with the "torch," the burner exploded. Everything was blown from the top of the stove, and the...

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3 cases
  • Bateman v. Wood
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 29, 1937
  • Corrao v. Sears, Roebuck & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 1, 1937
  • Green v. Green
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 29, 1937

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