Loveland v. Burke

• Decision Date: 04 March 1876
• Citation: 120 Mass. 139
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Walter M. Loveland & another v. Samuel R. Burke

120 Mass. 139

Walter M. Loveland & another v. Samuel R. Burke

Supreme Court of Massachusetts

March 4, 1876

Middlesex. Contract against a common carrier between Boston and Somerville, to recover the value of a hogshead of molasses.

At the trial in the Superior Court, before Rockwell, J., it appeared that the plaintiffs employed the defendant to transport a hogshead of molasses from Boston to their grocery store in Somerville; that the defendant did transport it in his wagon to Somerville at a point near their store; that the plaintiffs then directed him to unload it to and upon the piazza of the store; that he backed his wagon to within a few feet of the piazza, and skids or wooden supports were then placed from the piazza to the wagon; that then the parties undertook to roll the hogshead from the wagon to the piazza and, when it was upon the skids between the wagon and piazza one of the skids broke, which caused the hogshead to fall and its contents to be destroyed. It further appeared that the skids were furnished by the plaintiffs, and that the defendant requested the plaintiffs to furnish them, and that the breaking was attributable to the fact that a piece had been sawed out of the under side of the skid, which broke.

The defendant offered evidence tending to prove that it was the universal and well known custom and usage in Somerville and the suburban cities and towns for grocers to keep and furnish skids, whereon to remove heavy articles from common carrier's wagons to their grocery stores, and for carriers not to furnish skids, and that it was the plaintiffs' duty in this case to furnish the skids; also that the skids so furnished appeared to him to be suitable and that the defect, which caused the accident, was not apparent, and in fact was not seen by him, and requested the judge to instruct the jury, "that if they should find that it was the duty of the plaintiffs to furnish proper skids upon which to receive the hogshead, and that they did furnish skids therefor, which appeared suitable to the defendant, he would not be required to make a critical examination of them, and would not be liable for an accident to said hogshead caused by a defect in them, which he did not see, and which was not ordinarily apparent."

The judge declined to instruct the jury in this form, but did rule and instruct them as follows: "The duty of the defendant was to deliver the hogshead safely on the premises of the plaintiffs, using proper means and instruments. The mere fact (if it is a fact) that the usage is that grocers furnish the skids, does not alter the duty of the defendant to deliver the hogshead on the plaintiffs' premises. The carrier, by that fact, and the other fact that the plaintiffs did furnish the skids at the request of the defendant, was not relieved of further duty after the hogshead passed upon the ends of the skids. He was still bound to use proper care in the use of proper skids. He had no right to use insufficient skids, although the skids produced at his request were furnished according to usage by the plaintiffs. He, the defendant, was still bound to use proper skids. The plaintiffs were not warrantors that the skids were sufficient to carry the hogshead to the sidewalk on the plaintiffs' premises. If there was a latent defect in the skids, known to the plaintiffs and not known to the defendant, and not observable by ordinary skilful observation before using, the defendant would not be liable. The question as to usage, though of some importance, is not decisive of the case, but the previous considerations must also be regarded. The mere fact that the skids were furnished in compliance with usage by the plaintiffs does not alter the period when the delivery is completed. The period of completed delivery by the carrier is the same, whether the skids are to be furnished by the plaintiffs or by the defendant."

The jury returned a verdict for the plaintiffs; and the...