Gaboury v. Tisdell , 261 Mass. 147 ( 1927 )

Carroll, J.

The plaintiffs were injured while riding in an automobile of the defendant, driven by his agent. The case was submitted to the jury on the count for gross negligence; they were instructed by the judge that the plaintiffs could recover only on the ground that the defendant was guilty of gross negligence; to this instruction the plaintiffs excepted. The jury found for the defendant.

The plaintiffs were sisters of the defendant’s wife and lived in the defendant’s house. On the day of the accident the defendant, his wife and son, and the plaintiffs, left Worcester for Central Falls, Rhode Island, in the defendant’s automobile. The plaintiffs contend that the defendant is hable for his negligence, even if he is not guilty of gross negligence, because, when the plaintiffs were invited by the defendant to ride to Central Falls, one of them said: “I don’t like to go on Sunday . . . because there is too much traffic”; to which the defendant replied: “Do come for us . . . it will be more pleasure for us ... . Everything will be all right. Come along.” As the plaintiffs were the defendant’s guests, he was liable only for gross negligence. Massaletti v. Fitzroy, 228 Mass. 487. The relation in which the plaintiffs stood to the defendant was not changed by the conversation. The desire to have the plaintiffs accompany the defendant, and his statement that they would all have a better time if the plaintiffs joined in the trip and that everything would be all right, did not show that they accompanied the defendant for his benefit, and for this reason Lyttle v. Monto, 248 Mass. 340, Jackson v. Queen, 257 Mass. 515, and Lahatte v. Lavallee, 258 Mass. 527, are not in point. In each of these cases the injured person was in the employment of or performing a service for the defendant, and was not his guest. In the case at bar there was no pecuniary gain to the defendant in carrying the plaintiffs to Central Falls. The trip was to be taken for the mutual pleasure of all. The plaintiffs were the defendant’s guests; they did not cease to be such because their presence was pleasing to the defendant and they were solicited to accompany him and his family, being assured that “Everything . . . [would] be all right.” The instructions to the jury were correct. Massaletti v. Fitzroy, supra. Flynn v. Lewis, 231 Mass. 550.

Exceptions overruled.