310 Mass. 778 | Mass. | 1942
The defendant appealed from the decision of the Appellate Division of the Municipal Court of the City of Boston which ordered dismissed the report of the trial judge, who found for the plaintiff in each case. The actions are in tort.
There was evidence that there was a “luncheonette” in the defendant’s store that was operated by a concessionaire known as the “A & S Luncheonette,” a corporation. While the plaintiffs were eating at the luncheon counter, they were injured by the explosion of a can of beans, due to the negligence of an employee of the concessionaire. There was no dividing wall between the luncheonette and the rest of the store, and the entire store, including the luncheonette, had one general color scheme with no sign or signs over the luncheonette stating that it was not operated by the defendant and that it was operated by the concessionaire, so that an ordinary customer could not see any difference between the defendant’s store and the luncheonette. The words “McLellan Luncheonette” were printed in large letters at the top of the “permanent” menu cards, from one of which the plaintiffs ordered what they were eating at the time they were injured. Similar cards were displayed in the show window of the defendant’s store, so attached as to attract the attention of passers-by. There was noth
There is no contention that the plaintiffs were not rightfully on the defendant’s premises as invitees. Invitation, however, is important only as establishing the rights of the plaintiffs to be where they were. See O’Brien v. Freeman, 299 Mass. 20. It is assumed from the findings that that part of the defendant’s premises where the plaintiffs were when they were injured was included in that portion of the store that was occupied by the concessionaire. Not only were the plaintiffs rightfully in the store, but they were there without knowledge or information that would reasonably lead them to believe that the luncheonette was not operated by the defendant. To all intents and purposes, they entered the defendant’s store to purchase and eat its food. We think the inference is warranted that in doing so they relied upon the appearance of things and upon the food they purchased being that of the defendant. The fact that neither of the plaintiffs categorically testified that she so relied is not conclusive. See England Brothers, Inc. v. Miller, 274 Mass. 239, 242.
The defendant concedes that there was an invitation to the plaintiffs to enter its store for business purposes; that there was a representation that any contract or sale made by the concessionaire was a contract or sale made by the defendant;, that it well may be that because of the implied representations the plaintiffs purchased their meals, being led to believe that they were purchasing the defendant’s food; and that, if the plaintiffs had been injured by reason of eating contaminated food at the luncheonette, the court would be warranted in holding that the defendant was estopped to deny the agency of the employee from whom the food was purchased, citing Timmins v. F. N. Joslin Co. 303 Mass. 540. It contends, however, that any representation by the way of appearances does not go to the extent of saying that the plaintiffs would not be injured by the negligent conduct of the employees of the concessionaire.
The finding that we think was impliedly made, that by virtue of the purchase of the food a contractual relationship arose between the plaintiffs and the defendant, available, at least, to the plaintiffs, was warranted, Auringer v. Coch-rane, 225 Mass. 273, Pimpinello v. Swift & Co. Inc. 253 N. Y. 159, Rieves v. Smith, 184 Ga. 657, 664, Wiggins Ferry Co. v. Ohio & Mississippi Railway, 142 U. S. 396, 408-409, Williston, Contracts, (Rev. Ed.) § 98; and it becomes important to determine what the contract included. It was
The requests for rulings were denied on the ground stated by the trial judge that the defendant was estopped from setting up as a defence either that it was not in fact operating the luncheonette, or that it was not responsible for the negligence in question, and we are of opinion that in this there was no error. See Cleaveland v. Malden Savings Bank, 291 Mass. 295, 298. A finding of reliance, which was essential (see Federal National Bank of Boston v. O’Connell, 305 Mass. 559, 567, and authorities there cited; Clark v. Dillman, 108 Mich. 625, 627), upon the appearance of things was warranted. See McDonald v. Dr. McKnight, Inc. 248 Mass. 43, 48; Denny v. Riverbank Court Hotel Co. 282 Mass. 176, 178, 179; Desrochers v. Brady, 299 Mass. 269, 270. The plaintiffs entered into a contract with the defendant (see Timmins v. F. N. Joslin Co. 303 Mass. 540), and while actually engaged within the contemplation of that contract, they were injured through the negligence of an apparent employee of the defendant. In the circumstances, the de~ fendant cannot be heard to say that it is not liable. See Pennsylvania Railroad v. Hoover, 142 Md. 251, 257, 258; Hannon v. Siegel-Cooper Co. 167 N. Y. 244; Santise v.
We are of opinion that there was no error in the denial of the defendant’s requests. No question of pleading or of a variance has been raised. See Botti v. Venice Grocery Co. 309 Mass. 450, 458.
Orders of Appellate Division affirmed.