Groce v. First Nat. Stores, Inc.
| Decision Date | 29 June 1929 |
| Citation | 268 Mass. 210,167 N.E. 308 |
| Parties | GROCE v. FIRST NAT. STORES, inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; C. H. Donahue, Judge.
Action by Rose Groce against the First National Stores, Inc. Finding for plaintiff. On defendant's exceptions to denial of motion and to findings. Exceptions overruled.H. Horvitz, of Boston, for plaintiff.
G. F. Garrity and A. Donahue, both of Boston, for defendant.
This is an action of ‘tort or contract’ to recover damages for injuries sustained by the plaintiff, a married woman, on September 17, 1926, in consequence of having chewed and eaten some shredded cocoanut, manufactured and distributed by the Franklin Baker Company and sold by the defendant to the plaintiff. The case was heard by a judge of the Superior Court without a jury. At the conclusion of the evidence the plaintiff elected to base her action upon a breach of warranty, and the defendant moved the court to render a finding in its favor. The judge made a finding for the plaintiff. The case comes before us on the defendant's exceptions to the denial of its motion and to the finding of the judge. The bill of exceptions contains all the evidence introduced at the trial material to the questions therein raised.
At the trial the plaintiff testified, in substance, that she was a married woman, living with her husband and daughter; that on September 17, 1926, she purchased a can of shredded cocoanut at a store owned and operated by the defendant; that she bought the goods for the family and paid for the can of cocoanut with money of her husband obtained for that purpose. She further testified that as she was spreading the cocoanut on cake she put a lump of it in her mouth, bit on it and felt a sharp shooting pain through her teeth caused by a piece of metal lodged between them. She described the treatment of her tooth by a dentist on the same day, and the damage done to the tooth. Disregarding the evidence that the cocoanut was paid for with money obtained from her husband for that purpose, the undisputed evidence warranted a finding for the plaintiff. Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100;Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 95, 120 N. E. 225, 5 A. L. R. 242.
It is the contention of the defendant that the judge, on the testimony of the plaintiff, should have found that she was acting as an agent for her husband; that as agent there was no contract between herself and the defendant, and that consequently she could not maintain her action. Carlson v. Turner Center System, 263 Mass. 339, 161 N. E. 245. It is the further contention of the defendant that the case on all the evidence for the plaintiff is not distinguishable from Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916D. 1006. An examination of the report of that case to the Appellate Division of the Municipal Court, when it came to this court, discloses that the trial judge refused to rule for the plaintiff and found for the defendant upon the testimony of the plaintiff that she ‘often in company with her husband, but sometimes alone’ ‘had previously traded, three or four times a week,’ at the store of the defendant with money given her by her husband to ‘run the house, support, and all.’ This ruling and finding necessarily imported that the trial judge found as a fact that the plaintiff when she purchased the pork chops, which were alleged to be unwholesome and unfit for food, did so as the agent of her husband and that the defendant knew of her agency.
In the instant case there is no evidence reported which would warrant a finding that the defendant or his servants knew when the sale of the can of cocoanut was made to the plaintiff that she was a married woman, or that she was accustomed to purchase articles for the household with money given her by her husband for that purpose; and there is no evidence that her husband ever went with her when she bought goods or articles at stores for family use. The findingof the trial judge for the plaintiff necessarily imports that he found that the plaintiff was not acting as agent for her husband in the purchase of the can of cocoanut, or, if she were, that the defendant and his servants did not know that fact.
The question of principal and agent as between husband and wife, as the case may be, is commonly one of fact. Hunt v. Rhodes Brothers Co., 207 Mass. 30, 92 N. E. 1001;Smith v. Jordan, 211 Mass. 269, 272, 97 N. E. 761. The source of the money used by a husband or wife is but one fact...
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