USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-1893
No. 94-1895

DORIS FREDETTE and PAUL FREDETTE,

Plaintiffs, Appellees,

v.

ALLIED VAN LINES, INC., and TRANSIT HOMES OF AMERICA, INC.,

Defendants, Appellants.

____________________

No. 94-1894

DORIS FREDETTE and PAUL FREDETTE,

Plaintiffs, Appellants,

v.

ALLIED VAN LINES, INC., MULLEN BROS., INC. of NORTH ADAMS,

and TRANSIT HOMES OF AMERICA, INC.,

Defendants, Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

_____________________

and Stahl, Circuit Judge.

_____________

____________________

Joseph B. Bertrand with whom Marie G. Leary

___________________
_______________

and Martin Magnu

____________

McCarthy & Kenney were on briefs for defendant Allied Van

_________________

Lines, I

and defendant Mullen Bros., Inc. of North Adams.

William Gordon Prescott with whom David W. Murphy, Jr., and Ka

_______________________
_____________________
__
Lapointe & Murphy, P.C. were on brief for defendant
________________________

Transit Homes

America, Inc.

David R. Cianflone with whom Cianflone & Cianflone, P.C. was

___________________
_____________________________
briefs for plaintiffs.

____________________

September 28, 1995

____________________

BOUDIN, Circuit Judge.

_____________

in

a case concerning

went seriously

awry.

We have before us cross-appeals

long-distance moving arrangements that

The

plaintiffs in the

district court

were Paul and Doris Fredette; the defendants were Allied

Van

Lines, Inc., ("Allied"), Mullen Brothers, Inc. of North Adams

("Mullen

Brothers")

("Transit").

and

Transit

Homes

of

America,

Inc.

The facts, taken in the light most favorable to

the

jury verdict, Borden v.

______

Paul Revere Life Ins. Co., 935

__________________________

F.2d 370, 379 (1st Cir. 1991), are as follows.

In September 1990, General Electric Company ("GE")

laid

off Paul Fredette, who was then working as a machinist in its

Pittsfield, Massachusetts, plant.

position

in

accepted.

its

Hickory,

The Fredettes

GE offered Paul Fredette a

North

Carolina

of their mobile home to

Mullen

Massachusetts

a local

intrastate moves;

and

he

contacted defendant Mullen Brothers

to arrange the move

is

plant,

mover

for interstate moves

North Carolina.

licensed only

for

like the Fredettes',

Mullen acts as an agent for Allied.

In

January 1991,

Lindburg, came

a Mullen

sales

representative, Chad

to the Fredettes' Pittsfield

home to inspect

and inventory their mobile home and personal belongings.

The

mobile home was a one-bedroom unit with an attached porch and

canopy

Lindburg

and

detached

that they

contents and that

shed. The

wanted to move

they wanted

-3-3-

Fredettes

explained

the home and

to be fully

to

all of its

insured.

After

that

meeting,

the Fredettes

stayed with relatives

GE plant there.

In

left

contents at

handed over

a check,

represented

all

Fredettes returned and

hired

the

a cost of

payments required

move of

for

the

Fredettes

this amount

move.

Allied

household possessions itself.

the mobile

home to

another company to move the porch and shed.

with a guaranteed

signed an

$20,520; the

to the contract, the move was to begin on

1991.

at the

Allied to move the mobile

apparently believing that

transport the

subcontracted

and

They also purchased a lot for the home.

agreement with Lindburg committing

planned to

North Carolina

while Paul Fredette began work

mid-February, the

home and its

for

delivery date no

It

Transit and

According

February 16, 1991,

later than February

25,

Transit, in turn, hired James Bedford to move the mobile

home and

he inspected

signed.

The Fredettes

February

21,

1991,

it on the

day that the

contract was

then returned to North Carolina.

Lindburg

told them

that

Bedford

On

had

discovered pre-existing

structural damage after he moved the

home off its Pittsfield

lot.

home

that the

was not roadworthy because it was sagging on its axles.

Transit told Bedford

that

Bedford told Transit

the

furnished

home

not to

would

Transit

with

not

move the home

be

moved

until

broad liability

and told

the

Fredettes

release.

Fredettes' personal belongings were placed in storage.

-4-4-

Allied

The

The Fredettes returned

home

and

hired

determined

Fredette

to

own

that the home could

axle were added.

release

their

to Pittsfield, photographed

The

demanded by

expert,

Stanley

be safely moved

Fredettes refused to

Transit, but

on March

Bator,

the

who

if a fourth

sign the

broad

1, 1991,

Doris

signed a promissory note to Allied for up to $2,500

cover costs of adding an axle.

A fourth axle was added,

and on March 7, 1991, Bedford moved the home from Pittsfield,

arriving

in North

Fredettes and

Carolina on

March 12.

an expert they hired

On

arrival, the

found (and photographed)

substantial damage to the interior and exterior of the home.

Bedford

until

the

refused to

Fredettes

adjustments.

The

required work,

onto the lot,

removed

mobile home

on the

fence

made

and

Fredettes hired Irvin Finger,

but Bedford still

refused to

lot

other

who did the

move the

home

saying that the ground was too hilly and muddy

to do it safely.

Bedford left the

Massachusetts.

place the

After consulting with Allied

mobile home

The

near the lot

Fredettes hired

and Transit,

and returned

a local

to

company which

promptly placed the home onto the lot for an additional fee.

week

later,

after

number

of

requests

by

the

Fredettes,

Allied sent a crew

The contents of the

steps, had

not

to block and

level the home.

home and the porch, including

yet

Fredettes were engaged

arrived.

Apparently

in a dispute

-5-5-

Allied

the front

and

about the storage

the

fees

incurred

deliver

during

the moving

the personal

delay,

and

belongings until

Allied refused

the storage

to

fee was

paid.

Delivery occurred on April 11, 1991, and the Fredettes

moved

into

their

home the

next

day,

45

days after

the

original guaranteed delivery date.

While

the

depressed

GE.

home

was

en route,

Paul

His anxiety and depression continued after the move and

in

because

May of

of

1991, but

depression.

emotional distress.

in

became

and, as a result, was terminated from his job with

were confirmed by medical testimony at trial.

work

Fredette

left

Doris

Ultimately,

Massachusetts state

again in

Fredette

He returned to

September, again

also

suffered

the Fredettes brought

court, alleging

against Allied, Transit and Mullen.

a number

suit

of claims

The

court,

defendants

and

counts:

ultimately the

count

Amendment, 49

contract;

consumer

removed the

U.S.C.

count IV

alleged

suit

parties

federal district

went to

violation

11707; count

alleged

to

II

trial

on four

the

Carmack

of

charged breach

violation

of

of

Massachusetts

protection law, Mass. Gen. L. ch. 93A, based on the

intentional

infliction of

emotional distress;

and count

charged intentional infliction of emotional distress.1

____________________

1Count III,

a state-law claim for

property damage, was

dismissed as preempted by the Carmack Amendment.

-6-6-

Counts I, II and V were tried to a

11,

1994; Count

afterward.

IV, the 93A

After the

dismissed Mullen as

emotional

claim and

distress.

claim, was heard

Fredettes rested, the

a party.

found for the Fredettes

contract

jury beginning April

On April 14,

by the court

district court

1994, the

and against Allied on the

the claim

It found

of intentional

jury

breach of

infliction of

for the Fredettes and against

Transit on

the

intentional

awarded

Carmack Amendment

infliction

$36,000,

of

claim

emotional

representing

and the

distress.

$18,500

on

claim

The

the

of

jury

Carmack

Amendment claim against Transit; $7,500 on the contract claim

against Allied;

and $5,000 each against

the emotional distress claim.

these defendants on

The district court then

found

in favor of Allied and Transit on the Fredettes' 93A claim.

Allied

generally

motions

and

Transit

preserving

were denied.

judgments against

rejection

of their

duly

the claims

filed

now

post-trial

made

motions,

on appeal,

but

Allied and Transit now appeal from the

them.

claim

The Fredettes cross appeal from the

against Mullen

court's denial of their 93A claim.

and the

district

1.

49

The Carmack Amendment Claim.

___________________________

U.S.C.

11707,

incorporates common

liability and makes

loss

or

interstate.

injury

Id.
___

The Carmack Amendment,

law principles

a common carrier liable

to

the

property"

11707(a)(1).

-7-7-

that

of

for "the actual

it

transports

Transit was responsible for

the

move

of

the mobile

Fredettes $18,500

Transit

argues

sufficient

jury;

home,

and

against Transit

that

the

it

Fredettes

seeks

jury awarded

for damages to

evidence of the damages

alternatively

the

failed

remittitur

the home.

to

to take the

the

present

case to the

or,

in

the

Carmack

Amendment

may

"actual loss or

injury to

the

alternative, a new trial on the issue of damages.

plaintiff

recover as damages

suing

only the

property," ordinarily

market value caused

under

measured

by the

the

either by

defendant or

repair costs occasioned by the harm.

the reduction

in

by replacement

or

See, e.g., Oak Hall Cap

___ ____ ____________

& Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d
________________
_______________________________

291,

296 (4th

Cir. 1990).

There is no

recovery under the

statute for punitive damages or

property at

issue.

Cleveland
_________

Inc., 30 F.3d 373, 379 (2d

____

for damages unrelated to the

v. Beltman North Amer. Co.,

__________________________

Cir. 1994), cert. denied, 115

_____ ______

S.

Ct. 901 (1995).

Evidence as to the nature and extent of physical damages

sustained by the home

and

Paul

contractor

request

Fredette

and

who

examined

of

immediately prior

of

had

by

Irvin

Finger;

the home

at

by Doris

Finger

the

was

Fredettes'

when it arrived in North Carolina and compared it to

photographs

list

move was presented primarily

the

home

taken

to the move.

repair tasks

and

on

Finger

proposed

the

Pittsfield

supplied a

price

of

lot

written

$10,500.

-8-8-

"Before and after" photographs of the home were also admitted

into evidence.

Although Transit

and tear

otherwise.

argues that little

was demonstrated,

the

jury was

beyond normal wear

entitled to

find

The Fredettes described the condition of the home

before the

and

move and after,

door casing,

testifying to the

missing shingles,

aluminum siding and to

injuries discovered

broken window

soiled rugs,

the roof, a broken sink,

when the move was over.

damage to

and similar

Another witness

confirmed the existence of damage to the roof and an exterior

wall.

The

photographs.

jury

was

also

entitled

to

consider

the

Thus, there was ample proof of injury.

What is of more concern is the amount of damages awarded

by the

jury for injury

to the

mobile home.

Even assuming

that the jury fully accepted Finger's estimate, the

$18,500 against

estimated

by

Transit--or $8,350 in excess

him--is

puzzling.

award of

of the damages

Possibly,

as

Transit

speculates, the jury included other damages for which Transit

was not liable (e.g., damage to the porch and shed which were
____

moved

mesh.

by another company), although the figures do not quite

But

Transit

misinstructed, so we

has

not

claimed

have to assume

that

the

that the jury

jury

was

intended

the award to cover the mobile home itself.

That presents the question whether the jury was entitled

to

take the descriptions and

photographs of the injuries to

-9-9-

the mobile home

than

the

and then

value those

amount assigned

Under the

by

case law, the jury

the

injuries more

Fredettes' own

can depart upward, as

highly

witness.

well as

downward, from the opinion of the expert; and this makes good

sense

wherever the

damage without any

for

a broken

jury

could reasonably

expert opinion.2

window or

have valued

The jury

dented fender;

could do

the

so

defective dynamo

would probably be beyond its ken.

The

injuries to the mobile home are in between but much

closer to the broken window.

rugs, repainting,

frame) were

damaged

not especially

The injuries here (e.g., soiled

____

sidings

and

roof,

exotic in character

broken

door

and nothing

prevented

the jurors

common sense

estimate.

from

using their

to adjust upward

own experience

or downward the

and

expert's own

The award was certainly very generous, in light of

Finger's testimony, and a remittitur could have been ordered;

but it

is hard to

say that

it was irrational

or that

refusal to grant a new trial or remittitur on damages was

the

an

abuse of discretion.

2.

judgment

The Contract Claim.

____________________

of $7,500

against

The

Fredettes also

Allied for

breach of

won

contract

____________________

2See, e.g., Weber v. Chicago & Northwestern Transp. Co.,

___ ____ _____
__________________________________
530 N.W.2d 25, 29 (Wis. App.) ("[t]he jury is not bound by an
expert's estimate of damages"),

review denied, 534 N.W.2d 85

______ ______

(Wis. 1995); Birmingham Slag Div. of

Vulcan Materials Co. v.

_____________________________________________
Chandler, 231 So.2d 329,
________
is

not

bound

by

331 (Ala. Civ. App. 1970)

opinion

evidence

of

("a jury

damages,

though

undisputed").

-10-10-

based

on Allied's failure to deliver their home and goods by

the guaranteed delivery date.

resulted

from

events

outside

Allied contends that the delay

its control

and

sought

an

instruction on

frustration of

declined to give such

purpose.

The

district court

an instruction on the ground

that the

evidence did not support it.

A party is entitled to have its legal theories presented

to

the

jury,

evidence.

1091,

(1995).

if

Sullivan
________

legally

v.

correct

and

supported

by

National Football League, 34

_________________________

the

F.3d

1106-07 (1st Cir. 1994), cert. denied, 115 S. Ct. 1252

____________

The

determination

of whether

sufficient to require an instruction

court in the

first instance, but

appellate review.

frustration of

Id. at
___

there was

is made by the district

is subject to

1107-09.

evidence

Assuming

purpose is to be determined

appropriate

arguendo that
________

by the jury in a

proper case, see generally E. Farnsworth, Contracts

_____________
_________

9.7, at

722

(2d ed. 1990),

no reasonable jury

could have concluded

here that the contract's purpose had been frustrated.

The doctrine

of frustration

of purpose, recognized

Massachusetts as elsewhere, excuses

a party from contractual

obligations under certain defined circumstances.

condition,

but

"[p]erformance

performance

destroyed

not

remains

to the

the

only

one,

is

possible"--"the

party

seeking to

by [the] fortuitous event.

-11-11-

in

The central

that--although

expected

be

value

excused has

. . ."

of

been

Chase Precast
_____________

Corp.
_____

v.

Paonessa Co.,
____________

566 N.E.2d

603, 608

(Mass. 1991),

quoting Lloyd v. Murphy, 153 P.2d 47, 50 (Cal. 1944).

_____
______

GE plant

might

in North

have argued

Carolina had

burned down,

(not necessarily

If the

the Fredettes

with success)

that the

purpose of the agreement had been frustrated.

Obviously, the

Allied--to

purpose of the Fredettes'

arrange for

a move

of home

and

contract with

possessions to

North Carolina--was not frustrated by need for a fourth axle.

Allied might

have sought an instruction

impracticability of
________________

relating

to the

on impossibility or
_____________

performance, or even

immediate fitness

of

on mutual mistake
_______________

the mobile

transportation.

Compare Farnsworth, supra,

_______
_____

Whether

these sister

any of

9.3, 9.5, 9.6.

doctrines could

been invoked is open to dispute;

home for

properly have

but the dispute need not be

resolved because no such instructions were sought.

3.

Allied

Intentional Infliction of Emotional Distress.

_____________________________________________

and

instructing

Transit

the jury

distress claim.

argue

about

that the

trial

the elements

The trial judge

judge

of the

erred in

emotional

described the elements

intentional infliction of emotional distress as follows:

First, that

the defendants

intended to

Both

cause, or

of

should
cause

have

known that

emotional

its

distress; and,

defendants'

conduct

and, Third,

that

was

the actions

suffered

Second,

extreme and

caused plaintiffs distress;

plaintiffs

[sic] conduct

of

the

that the

outrageous;
defendants

and, Fourth, that

emotional

would

distress.

the
In

determining whether a defendants' [sic] conduct was

extreme

and

yourselves

utterly

whether

the

outrageous,
conduct

you
was

must

ask

beyond

all

-12-12-

bounds

of

decency and

utterly

intolerable

in a

civilized community.

Liability can't be founded on

mere insults, threats, or annoyances.

It should be

noted that physical harm to the plaintiffs in [sic]

not a required element of this claim.

The

district

court's

verbatim from a recent

Judicial

(Mass.

Court, Sena
____

1994).

In

instructions

are

taken

almost

decision by the Massachusetts Supreme

v. Commonwealth,
____________

this

case,

the

629 N.E.2d

defendants

986, 994

submitted

proposed instructions that would have required, on the fourth

element, that the plaintiffs' emotional distress

and
___

to

"of a nature that no reasonable person could be expected

endure it."

That

language is

watershed decision on the tort

v.

be "severe"

Howard Johnson Co.,

___________________

355

taken from

that court's

nearly twenty years ago, Agis

____

N.E.2d 315,

319

(Mass. 1976)

(quotations omitted).

the "reasonable

The district court declined to include

person" language,

and an objection

to this

omission was preserved.3

Since Agis, the SJC has all but

____

person" language.

Every

intentional infliction

"reasonable

person"

ignored the "reasonable

time that the court has

claim since Agis, it

____

language

and

decided an

has omitted the

simply

required

the

____________________

3The judge apparently intended to use the word "severe,"

but may

well have failed to

court's

post-trial memorandum

conflict.

But

was preserved.

do so.

The

and

order

if "severe" was omitted, no

transcript and the

are seemingly

in

proper objection

-13-13-

plaintiff to show "severe"

emotional distress.4

This

is so

even in cases where the severity of the plaintiff's emotional

distress is at

issue.

See, e.g., Haddad

_________ ______

N.E.2d 658, 667-68 (Mass. 1991).

defined the tort

v. Gonzalez,
________

Because the district

precisely as the state's

576

court

highest court has

done for more

than a

decade, we

find no

error, much

less

prejudicial error.

Both

Allied

and Transit

entitled to

judgment as a

this claim.

The

jury

could have

party."

Havinga
_______

F.3d 1480,

that

contend

matter of law

returned a

verdict

that they

or a new

former remedy requires that

"no reasonable

adverse to

and we review

decision on such a

trial, this may be

motion.

granted if the

the jury's verdict is

are

trial on

the moving

v. Crowley Towing & Trans. Co., Inc.,

___________________________________

1483 (1st Cir. 1994),

district court's

new

also

24

de novo the
_______

Id.
___

As for a

district court finds

against the clear

weight of the

evidence; a refusal to grant a new trial is reviewed only for

abuse

of discretion.

Phav v. Trueblood, Inc., 915 F.2d 764,

____
_______________

766 (1st Cir. 1990).

Allied

wrongful,

and Transit

was

not

bad

argue that

enough to

their conduct,

be

deemed

even if

extreme

and

N.E.2d 369, 373

n.6

____________________

4See, e.g., Bowman

_________ ______
(Mass. 1995);

v. Heller, 651
______

Sena, 629 N.E.2d

____

at 994; Haddad
______

v. Gonzalez,
________

576 N.E.2d 658, 667-68 (Mass. 1991); Nancy P. v. D'Amato, 517

________
_______
N.E.2d

824, 827

(Mass. 1988).

"reasonable person"
infliction

language in

of emotional

The

court referred

an opinion

distress in

1982.

Abbott Labs, 437 N.E.2d 171, 180 (Mass. 1982).

___________

-14-14-

to the

about negligent
_________
See
___

Payton v.
______

outrageous.

In

disassociate

the home

part, this

themselves from Bedford,

on the lot

initial adjustment

presented

argument rests on

even after

Bedford

evidence

that

to place

the Fredettes had

made the

had

But

the

Fredettes

ratified

Bedford's

demands that the North Carolina lot be levelled

that Transit

and Allied

to

who refused

demanded.

Transit

an effort

had approved Bedford's

further, and

decision to

leave the site with the home still not in place.

There

was other

conduct of

which the jury

might have

disapproved.

Transit took the

release from

the

the Fredettes

lead in seeking

to obtain a

that seemingly went

well beyond

danger that occasioned the demand.

before sending

a crew to block

home was moved to

Allied waited a week

and level the

site once the

North Carolina, and it waited

three weeks

more to deliver

the Fredettes'

belongings (including

car,

and the

to

furniture

steps

their

their

home)

until

cited

to

the

Fredettes paid the disputed storage charges.

Most

of

the

Massachusetts

defendants are distinguishable, but

argument

that the conduct here

held insufficient in

(Mass.

1987); there,

sidetracked

in his

cases

Transit has a

is not much

job and

acquitted of

ostracized by

by

plausible

worse than that

Foley v. Polaroid Corp.,

_____
______________

an employee

us

508 N.E.2d 72

assault was

other employees.

Still, in

Foley the SJC

_____

thought that

the company's

formal

actions were consistent with "a good faith effort to maintain

-15-15-

Foley's

employment

legitimate

business

in a

manner consistent

concerns," id.
___

at

82;

with Polaroid's

and the

court

apparently

equated

the

harassment

with

"mere

insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities" for which recovery

claim.

Id.
___

Here,

we think

hardly compelled,

withholding of

verbal

is not permitted under this

and

that

to

find bad

was entitled,

faith;

property and services go

other

minor

directed against Foley.

Allied, Transit

the jury

abuses

that

and the

delays

and

somewhat beyond the

Polaroid

employees

Further, given the interplay between

and Bedford, the

jury was entitled

the conduct as a whole and not as isolated minor

viewed, we think

although

that the

deference to be

to view

wrongs.

accorded to

So

the

jury's judgment on issues of this kind keeps the verdict just

this side of the dividing line.

4.

claimed

The Fredettes' 93A Claim.

__________________________

against

Massachusetts'

the

far-reaching

Gen.

L. ch. 93A.

acts

or practices in the

and

provides

individuals.

after the

defendants

The

for

The 93A

violation

consumer protection

That law proscribes

private

Fredettes also

of

trade or commerce"

action

claim was tried to the

jury verdict on the other counts.

-16-16-

law, Mass.

"unfair or deceptive

conduct of any

right

of

for

aggrieved

district court

The court found

that no violation

defendants.

had occurred,

93A is

phrased

emotional distress tort, the

might suggest.

low

the

in terms

different than

the

analogy is closer than language

The "unfair or deceptive" label sounds like a

threshold,

repeatedly held

unethical

favor of

The Fredettes argue that this ruling was error.

Although

very

and ruled in

but

that 93A

the

Massachusetts

requires conduct that

or unscrupulous or

at least

courts

have

is immoral,

attains "a

level of

rascality" that

goes

well beyond

ordinary

practice.

Industrial Gen. Corp. v.

_______________________

Corp.,
_____

F.3d 40,

44

43

(1st

Cir.

tough

business

Sequoia Pacific Sys.

_____________________

1995) (citing

numerous

Here, in deciding the

93A claim as the finder

of fact,

district

entitled

judgment

Massachusetts cases).

the

judge

was

independent of the jury

extent of deception,

to

reach

on such issues as the

unfairness and bad

existence and

faith.

Whether

or

not

the judge's findings can be squared with the jury's does

not

matter, so long as the former's findings are not clearly

erroneous and the latter's

are within the bounds

of reason.

Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780

__________________________
__________________________

F.2d 1049, 1063-64

(1st Cir. 1985).

Precisely because this

is a borderline case, we think that the respective

standards

of review protect both factfinders.

The Fredettes

also rely on

Massachusetts Attorney General

a regulation issued

which provides that

by the

"[i]t is

-17-17-

an

unfair and deceptive act or practice: (a) To advertise or

promise prompt delivery where

expeditious."

940 C.M.R. 3.15.

a pattern of conduct,

in

which

delivery is neither prompt nor

the

representations.

But we read this to refer to

or at least to an

promisor

knows

that

Whatever other

Allied, nothing suggests that

it

individual occasion

is

making

criticisms may be

untrue

made of

its original delivery date was

a representation made in bad faith.

The

Fredettes'

behaved unfairly

other

succession of

that the

defendants

a price that

be all-inclusive and then imposing

additional charges

storage fees, expenses

district judge

is

and deceptively by specifying

the Fredettes believed to

theory

relating to

as the trier of

and demands

(e.g., the
____

the new lot).

fact was entitled to

But

the

take a

more benign

clearly

view

beyond

and

regard

what was

these extra

agreed

developments that no one had

to

or

foreseen.

demands

as

as

not

occasioned

This view,

by

although

not compelled, was not clearly erroneous.

5.

brief as

not

The Dismissal of Mullen.

_________________________

the close of

appellants, the Fredettes argue

have been dismissed as

evidence.

At

that Mullen should

a defendant at

Lindburg, they say,

their

the close of the

acted as the

agent for both

Mullen and Allied; and Mullen is responsible, they argue, for

the wrongs

they attribute to

Lindburg.

These wrongs

they

identify as (1) misadvising the Fredettes that their move was

-18-18-

"fully covered"

and "fully insured" and

original inspection and measurements

(2) mishandling the

of the home and thereby

causing a significant portion of the delay in the move.

It

is not clear why

Fredettes since

and

Allied and

this claimed error

Transit are presumably

the Fredettes cannot collect twice

But in any event

matters to the

solvent,

for the same wrongs.

we see little indication that

Lindburg was

independently culpable: there is no evidence that he told the

Fredettes anything he had reason to believe to be untrue; and

the

show

Fredettes point us to

nothing in the

record that would

that Lindburg knew or should have known that the mobile

home would sag when removed from its supports.

Affirmed.
_________

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