Allen v. Truesdell, 135 Mass. 75

135 Mass. 75 | Mass. | 1883

W. Allen, J.

This action is brought to recover damages, not because a horse was not in value as was warranted or represented, but for personal injuries sustained from an unsafe horse, which the plaintiff was induced to use, in the belief that it was safe, by the false and fraudulent representations of the defendant. The offer by the plaintiff was not only to prove a representation that the horse was safe, but that it was “ not afraid of the cars.” These words are not necessarily to be construed as a warranty or representation of what the conduct of the horse would be in the future, rather than the assertion of a fact in regard to the habits or training of the horse; and the whole offer by the plaintiff was in effect to prove that the representations alleged were made by the defendant, and were made falsely and fraudulently; that the plaintiff was induced by them to use the horse in the manner she did, and that they were made in view of such use; that the fright and running of the horse were occasioned by a vice or habit which the defendant, by such representations, had affirmed that it was not subject to; and that the plaintiff was injured in consequence of the fright and running of the horse. If these propositions were all proved, the plaintiff would be entitled to a verdict. Langridge v. Levy, 2 M. & W. 519; S. C. 4 M. & W. 337. Smith v. Green, 1 C. P. D. 92. Sharon v. Mosher, 17 Barb. 518. It cannot be said, as matter of law, that the lapse of time, and the plaintiff’s acquaintance with the disposition and habits of the horse acquired after the representations were made, show that she was not induced by them to drive the horse; nor that the distance which the horse ran, and the fact that it turned from the highway toward a place where it had been accustomed to stand, and, in so doing, overturned the vehicle and injured the plaintiff, show conclusively that the fright or vice of the horse was not the cause of the plaintiff’s injury. These were questions to be submitted to the jury, under instructions by the court. New trial ordered.