299 Mass. 230 | Mass. | 1938
This is an action of contract or tort. The declaration contained four counts, but at the trial the plaintiff waived the first three counts and elected to proceed on the fourth count alone, which was in tort. The allegations of the fourth count in substance are that the plaintiff, having received an order for the shipment of a carload of Christmas trees to Windsor, Ontario, Dominion of Canada, inquired of the defendant whether the plaintiff could make such shipment and whether there were any regulations which would prevent the delivery of such shipment at that destination; that the defendant, its agents and servants, “without making any investigation, or having made a negligent investigation, informed the plaintiff, or having made an investigation, negligently informed the plaintiff,
There was evidence in its aspect most favorable to the plaintiff tending to show that in 1931, and for several years prior thereto, the plaintiff was engaged in Vermont in the business of cutting Christmas trees and shipping them in carload lots to various cities in the United States. On the morning of November 24, 1931, there was delivered to the plaintiff by the passenger and freight agent of the defendant at Richmond, Vermont, a telegram addressed to the plaintiff from her agent in Detroit, Michigan, informing her that Mossman Bros. Limited, of Windsor, Ontario, in the Dominion of Canada, had ordered a carload of Christmas trees to be shipped immediately. The plaintiff, after reading the telegram, said to the agent of the defendant, “Can I ship Christmas trees into Canada?” The reply was, “Yes.” Later the same morning the plaintiff went to the railroad station of the defendant in Richmond and again saw the agent (one Grace). The plaintiff's husband, in the presence of the plaintiff, said to him, “Mrs. Bradbury tells me you say she can ship this car to Canada, but, before we ship, I want you to send a telegram to the general freight office of the Central Vermont Railway in St. Albans and get the whole dope on the car. We will not ship until
The trial judge ruled that the rights of the parties must be determined in accordance with the law of Vermont, where the cause of action arose. The jury were instructed to determ ne whether the conduct of Grace, the agent of the defendant, was negligent, and, if they found that it was, they were to return a verdict for the plaintiff. It was agreed by counsel that in the event of a verdict for the plaintiff the damages were to be assessed in the sum of $900. The jury returned a verdict for the plaintiff in that sum. A motion for a directed verdict in favor of the defendant was denied. Leave was reserved to enter a verdict for the defendant under G. L. (Ter. Ed.) c. 231, § 120, but motion by the defendant for the entry of such verdict was denied by the trial judge, who reported the case for determination by this court.
The cause of action upon which the plaintiff relies was the statement by the agent of the defendant to the plaintiff that Christmas trees could be shipped into Canada from Vermont. That was a statement of fact because it related to the law of a foreign state or nation. Electric Welding Co. v. Prince, 200 Mass. 386, 390. Seemann v. Eneix, 272 Mass. 189, 194. That statement was false. That misinformation was given in Vermont. Whether it gave rise to a cause of action must be determined in accordance with the law of Vermont. Levy v. Steiger, 233 Mass. 600. Gannett v. Boston & Maine Railroad, 238 Mass, 125. Hall v. Hamel, 244 Mass. 464. Walker v. Lloyd, 295 Mass. 507, 510. Am. Law Inst. Restatement: Conflict of Laws, § 377, paragraph 4. The ruling of the trial judge in this respect was correct.
It is provided by G. L. (Ter. Ed.) c. 233, § 70: “The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material.” In the absence of proof to the contrary, the common law of Vermont is presumed to be the same as the common law of this Commonwealth. Woodard v. Woodard, 216 Mass. 1, 2.
The result is that there was no error of law in the conduct of the trial. Verdict for plaintiff to stand.
So ordered.