Flynn v. Lewis , 231 Mass. 550 ( 1919 )

B raley, J.

The plaintiff’s intestate while travelling in the defendant’s automobile driven by a chauffeur employed by him, having suffered personal injuries, which after a period of conscious suffering resulted in death, the first action is at common law for her injuries, and the second action is brought under R. L. c. 171, § 2, as amended by St. 1907, c. 375, to recover damages for her death. The jury having found on evidence which warranted the finding, that the overturning of the automobile was due to the negligence of the chauffeur and that the decedent was in the exercise of due care, we come to the question of the defendant’s liability.

It was uncontroverted that the decedent was in the automobile on the invitation of the defendant’s daughter to whom her father ha3rgrvenT"m5sio5c*W^seTrToFtEepurpose~bf^bing~^oni Lawrence" to Boston to buy a fur coat, and it was on the return journey that the""aa;identTiappened. "The defendant’s responsibility rests on the authority conferred on his daughter to invite the decedent to accompany her. Kennedy v. R. & L. Co. 224 Mass. 207-209. The jury of course had the right ip believe the evidence of the administrator who testified that, in an interview after the accident, the defendant said that his daughter told him “they were going to a football game on Saturday and asked me if she could have a fur coat. I told her of course she could. Then she asked me if she could have the machine, and if she could invite Josephine,” the decedent, “to go to Boston with her to help her to select her coat. I told her she could.” The question is the same as if the defendant personally had invited the decedent to accompany his daughter to help in the selection of the garment. It was agreed at the argument that they were intimate friends, and often had driven together in the automobile, and it is plain that the decedent neither asked nor expected any recompense, but went for the accommodation of her friend by whom transportation for their mutual companionship and enjoyment had been provided. The element of any pecuniary benefit or gain to the defendant being absent, the transaction was gratuitous, under which the defendant is liable only for gross negligence in the operation of the automobile. Massaletti v. Fitzroy, 228 Mass. 487. West v. Poor, 196 Mass. 183. The case of Loftus v. Pelletier, 223 Mass. 63, where the evidence warranted a finding that the plaintiff’s right to transportation by the defendant, a physician, was an implied term of her contract of employment as a nurse, is plainly distinguishable.

The plaintiff’s first and second requests, “If the jury find that the plaintiff’s intestate was in the machine for the purpose of assisting the defendant’s daughter at the request of the defendant, through his daughter, the defendant owed her a higher degree of care to transport her safely than if she was a mere guest, and is liable for his negligence or that of his servant or agent,” and that “Upon all the evidence the plaintiff’s intestate was not a mere guest, but at least one of her purposes in the machine was of assisting the defendant’s daughter at the request of the defendant, through his daughter, in the selection of a garment, and it is not necessary for the plaintiff to prove gross negligence on the part of the defendant or his agent or servant in order to recover,” were properly denied.

The plaintiff’s third request, to rule that upon all the evidence the plaintiff has established gross negligence on the part of the chauffeur, could not have been given. It was a question of fact for the jury, who have answered in the negative.

The plaintiff in this connection offered to show, that oh the forenoon of the day of the accident the chauffeur, when the defendant’s wife was using the car, drove fast, on the ground that any reckless habits of the employee which are known or ought to have been known to the employer are admissible. The evidence was inadmissible. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11,14.

The question whether "he saw his housekeeper do anything when she saw the Packard” meaning the defendant’s car, which was asked by the plaintiff of a witness called by him and who accompanied by his housekeeper was passing over the road in a touring car and observed the accident, also was excluded rightly. The short answer is, that no offer, nor any statement, as to what the answer to the question would be was made. Lee v. Tarplin, 183 Mass. 52, 54. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. But even if the answer had been that the housekeeper exhibited signs' of fright which the jury could have inferred were caused by what she had seen, the evidence would not have been competent as tending to prove negligence of the chauffeur.

The final ruling to which the plaintiff also took exceptions, that unless gross negligence was proved the plaintiff could not recover, was correct.

Finding no error of law in the trial of the first case, we pass to the defendant’s exceptions in the second case. The defendant requested the judge to rule that the plaintiff could not recover unless gross negligence was proved. But the. statute in express terms requires proof only of ordinary negligence, and the ruling could not Rave been given. Brown v. Thayer, 212 Mass. 392, 397, 398.

The exceptions in each case must be overruled, and it is

So ordered.