305 Mass. 437 | Mass. | 1940
The plaintiff was injured on October 4, 1934, when she fell downstairs by reason of the heel becoming detached from the left shoe of a pair she had purchased from the defendant on September 22, 1934, and which, she alleges, were not in accordance with the warranty made by the defendant at the time of their purchase. The jury at the first trial returned a verdict for the defendant. The plaintiff’s motion for a new trial was granted. The plaintiff had a verdict at the second trial but the judge, under leave reserved, entered a verdict for the defendant. The defendant saved exceptions to the failure of the judge to 'grant its motion for a directed verdict at the first trial and excepted to the granting of the motion for a new trial. At the second trial, the defendant saved an exception to a portion of the charge, and the plaintiff excepted to the entering of a verdict for the defendant under leave reserved.
The presiding judge was familiar with the appearance and condition of the shoe and the heel when they were introduced in evidence and when they were returned by the jury. Whether the heel had been properly and reasonably attached to the shoe was a crucial issue. The plaintiff had no case unless she proved that the heel had not been reasonably fastened to the shoe. Apparently, the judge and counsel at the time the motion was granted believed that a nail had been driven into the heel during the deliberation of the jury. It may be that, if at that time the heel had been separated from the shoe, it might then have been discovered that no new nail had been driven through the heel into the sole of the shoe. We do not know from the record what inspection was made of the shoe before the judge decided to grant the motion. It was for him to decide what had been done to the shoe in the jury room and then determine whether such an occurrence was a mere irregularity affecting no substantial rights of the parties or whether it resulted in depriving the plaintiff of a fair and impartial trial. Findings of fact
The action of the judge must be determined by the facts as they appeared at the time the motion was granted, and not as they are shown to be by subsequent events. The situation is analogous to that commonly prevailing where a party seeks a reversal of a verdict on the ground that the facts upon which it was based have been shown by newly discovered evidence not to have existed at the time the verdict was rendered. We do not know when the head of the nail, which was formerly considered as a new nail driven into the heel, was inserted into the heel. In any event, the defendant is not shown by the record to have sought a re
The defendant’s exception to the refusal to grant its motion for a directed verdict at the first trial is not open for determination. As there was no error in granting a new trial, all the questions saved at that trial ceased to have any vitality when the trial itself had come to naught. That trial is no longer of any force and effect, and an error alleged to have been committed at such a trial has lost its substance and become moot. Welsh v. Milton Water Co. 200 Mass. 409. Nagle v. Driver, 256 Mass. 537. Bresnahan v. Brighton Avenue Baptist Church, 279 Mass. 300. Zwick v. Goldberg, 304 Mass. 66.
The defendant urges that, if the judge had granted its motion for a directed verdict, the incident that resulted in a new trial would not have occurred. We assume that may be true. Our inquiry, however, is not to determine how an alleged error could have been avoided at the trial but how any portion of a trial can be reviewed when the entire trial itself has become a nullity. The defendant cannot now complain of such an error.
There was evidence at the second trial that the plaintiff went to the defendant’s store and took a pair of “Moseley” shoes from among those that were exhibited for sale upon a table. She showed them to the salesman to see if they were the right size. He flexed the shoes, softened the counters to make them pliable, and fitted the shoes to her. She had the clerk fit thq shoes “to see if they were all right and durable and sensible and substantial for what I wanted to use them for.” There was more to the transaction than taking the shoes to the clerk and having them fitted and then having them charged and sent to her. She testified: “I had that other conversation about their being substantial.” She had previously bought shoes from the defendant,
The jury could find that the plaintiff took the shoes from the table to ascertain whether they were the correct size for her and to learn from the salesman whether they were durable, sensible and substantial; and that their selection did not become final until after they had been fitted and after she had talked with the clerk concerning their being substantial. There was evidence that-the plaintiff had such a conversation with the salesman. This conversation was a part of the transaction which began with taking the shoes from the display table, the fitting of them by the clerk to the plaintiff who wanted to see not only if they were the right size but also if they were durable and substantial, and their purchase by the plaintiff. Upon such a background it was a permissible inference for the jury to draw that, before their purchase, the plaintiff had inquired of the clerk whether the shoes were durable and substantial; and the jury could further infer that he had informed her that they were, in view of the fact that she finally decided to purchase them. It was a question of fact whether such statements induced the plaintiff to purchase the shoes. There was sufficient evidence to warrant a finding that the salesman had implied authority to answer such inquiries of a customer who was contemplating the purchase of goods and that such statements of the clerk would bind the defendant. Idzyhowski v. Jordan Marsh Co. 279 Mass. 163. Smith v. Denholm & McKay Co. 288 Mass. 234. Whether the clerk knew from fitting the shoes to the plaintiff and from her conversation that they were intended for her personal wear, and whether in making her purchase the plaintiff relied upon the skill and judgment of the clerk that the shoes were reasonably fit for her use, and upon his statements that the shoes were durable and substantial, were also questions of fact. Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450. Ireland v. Louis K. Liggett Co. 243 Mass. 243. Holt v. Mann, 294 Mass. 21.
In the opinion of the majority of the court there was evidence from which the jury could find an implied warranty
The plaintiff could not recover for breach of warranty unless she gave notice thereof to the defendant within a reasonable time after she knew of the breach. G. L. (Ter. Ed.) c. 106, § 38. The giving of such a notice was a condition precedent to establishing the defendant’s liability. Learned v. Hamburger, 245 Mass. 461. Idzykowski v. Jordan Marsh Co. 279 Mass. 163. Smith v. Denholm & McKay Co. 288 Mass. 234. Savage v. Alpha Lunch Co. of Boston, 300 Mass. 520.
The jury could find that, on the day following the accident, a friend telephoned to the defendant and talked with one Haworth, an adjuster, who it could be found had authority to receive a notice of breach of warranty. Haworth was informed that the heel came off the shoe and that the plaintiff was injured. He testified that he was told that “Mrs. Bruns had on a pair of our Moseley shoes and fell downstairs in her home. Wanted the claim agent right away. Said there was a flaw in the shoe. Her doctor says she had a good case.” The plaintiff had purchased these shoes on credit on September 22, 1934, and they had been sent by the defendant to her home. It would not be unreasonable to find that the defendant had a record of this sale. Moreover, there was evidence that the defendant had bought out the stock of the T. E. Moseley Co.; that the tables upon which the goods were displayed for sale to its customers had signs which stated that the stock was the complete stock of the Moseley company; and that this stock of shoes was on sale on September 22, 1934. This lot of shoes was sold at a special price. The defendant was informed that the shoes came from this stock and the price charged to the plaintiff upon the records of the defendant, which the jury could infer were made by the defendant, would serve not only to identify the lot from which the sale was made but would fix the time of the purchase as occurring during the period that this lot of shoes was offered for sale to the public. It would not be unreasonable to infer that, the sale being on credit, the fecords of the defendant would indicate the date of sale. The plaintiff visited the defend
The judge left it to the jury to determine whether the notice that the plaintiff gave the defendant in February, 1935, was given within a reasonable time. The notice must be seasonably given in order to protect the seller against belated claims for damages. Where the evidence is in dispute and open to different inferences, the question whether an act has been done within a reasonable time after the happening of a certain event is ordinarily a question of fact, but where the facts are not in dispute the question becomes one of law. Loring v. Boston, 7 Met. 409. Prescott Bank v. Caverly, 7 Gray, 217. Lewis v. Worrell, 185 Mass. 572. Keefe v. Hart, 213 Mass. 476. Orr v. Keith, 245 Mass. 35. Lowry v. Commissioner of Agriculture, 302 Mass. 111. A notice in February, 1935, of a breach of warranty occurring on October 4, 1934, was not given within a reasonable time
It follows that the defendant’s exceptions taken at the first trial and to the granting of the motion for a new trial must be overruled and the exceptions taken by each party at the second trial must be sustained.
So ordered.