Pannella v. Reilly
| Decision Date | 27 October 1939 |
| Parties | PANNELLA v. REILLY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by Joseph Piva Pannella against Marian D. Reilly for damage to a crop of lettuce. From an order of the Appellate Division dismissing report following a finding for plaintiff, the defendant appeals.
Order dismissing report affirmed.Appeal from Second District Court, Bristol County; B. Cook, Judge.
J. P. McGuire, Jr., of Fall River, for appellant.
I. H. Simon, of Fall River, for appellee.
There was evidence that the plaintiff's crop of lettuce was injured when an independent contractor, hired by the defendant to spray her trees with a compound containing arsenate of lead, a poison, caused some of this substance of the deposited upon the lettuce while spraying a tree located close to the boundary between adjoining lands of the parties but which overhung the plaintiff's land; that before the spraying began the plaintiff objected to it on account of the danger to his crop, but that the defendant ordered the independent contractor to spray the tree and she watched this work being done. There was a finding for the plaintiff and the Appellate Division ordered the report dismissed.
The defendant's appeal is based upon the refusal of the judge to grant a request that ‘Upon all the evidence, the defendant is not liable,’ and a second request that the defendant was not liable for any damage caused by the independent contractor if she used reasonable care in his selection. The denial of the first request was right. It had no standing in the District Court. The judge was not required to consider it. Rule 27 of the District Courts (1932); Duralith Corp. v. Leonard, 274 Mass. 397, 174 N.E. 511;Wainwright v. Jackson, 291 Mass. 100, 195 N.E. 896;McKenna v. Andreassi, 292 Mass. 213, 197 N.E. 879. The judge, however, did consider it, but there was no error in refusing to give it since the evidence, for reasons hereafter, presented a question of fact upon the issue of the defendant's negligence.
The spraying of a poisonous substance in the immediate vicinity of or practically over a crop of vegetables intended for human consumption was the performance of work of such a character that damagewould necessarily result to the owner of the vegetables unless reasonable precautions were taken to avert such damage. Here the judge could find that no adequate measures were adopted to protect the plaintiff's property from being...
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Whalen v. Shivek
...Co. of Boston, 248 Mass. 583, 586, 143 N.E. 537; Herrick v. Springfield, 288 Mass. 212, 216-217, 192 N.E. 626; Pannella v. Reilly 304 Mass. 172, 173, 23 N.E.2d 87; Ferguson v. Ashkenazy, 307 Mass. 197, 201, 29 N.E.2d 828. It has frequently been said that the work of the independent contract......
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Milmore v. Landau
...Appellate Division and is before this court on this appeal. Pacheco v. Medieros, 292 Mass. 416, 419, 198 N.E. 506. See Pannella v. Reilly, 304 Mass. 172, 173, 23 N.E.2d 87. See generally as to the form and significance of the request Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 94, 95, 9 ......