Avery v. Thompson

• Decision Date: 21 February 1918
• Citation: 103 A. 4,117 Me. 120
• Parties: AVERY v. THOMPSON et al. (two cases).
• Court: Maine Supreme Court

103 A. 4

117 Me. 120

AVERY

v. THOMPSON et al. (two cases).

Supreme Judicial Court of Maine.

Feb. 21, 1918.

Exception and On Motion from Supreme Judicial Court, Knox County, at Law.

Actions by Edna Avery and A. Ferdinand Avery against Robert L. Thompson and others, administrators. There was a verdict for the plaintiff in each case, and defendant brings exceptions and moves for a new trial. Motion and exception overruled in the action by Edna Avery. Exception overruled, and motion sustained, in the action by A. Ferdinand Avery, unless plaintiff riles a remittitur.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, and HANSON, JJ.

Carl C. Jones, of Waterville, and F. W. Halliday, of Newport, for plaintiffs. A. S. Littlefield and K. I. Thompson, both of Rockland, for defendants.

CORNISH, C. J. These cases are of novel impression in this state. They involve the degree of care which the owner and operator of an automobile owes to his invited guest.

N. Webb Thompson, the defendants' intestate, was a resident of Friendship and the owner of an automobile driven by himself. He invited four ladies to take a ride with him for pleasure from Friendship to Thomaston. The invitation was accepted and on the morning of September 2, 1915, they started on the journey. Miss Mitchell sat on the front seat with Mr. Thompson, the other three ladies on the rear seat, Mrs. Avery, the plaintiff on the left, Miss Morse in the center, and Mrs. Pillsbury on the right. They turned from the Friendship road onto Knox street in Thomaston, and in attempting to pass over a grade crossing about. 100 feet from the turn, the automobile was struck by an express train of the Maine Central Railroad Company. Mr. Thompson was instantly killed, and Mrs. Avery was thrown out and seriously injured. These suits are brought, the one by Mrs. Avery and the other by her husband, against the estate of Mr. Thompson to recover the damages so sustained. The allegation in the writs is that Mr. Thompson—

"utterly heedless of the safety of the plaintiff, did then and there negligently, carelessly, and recklessly attempt to cross said railroad company's tracks in front of said approaching train, by reason of which negligence. carelessness, and recklessness." etc., the plaintiff was injured.

Mrs. Avery recovered a verdict for $5,250, and Mr. Avery of $1,483.33. The cases are before this court on motion and a single exception.

Motion.

1. Defendant's Negligence.

In order to determine whether these verdicts are so manifestly contrary to the law and the evidence that they should be set aside by this court, it is necessary to ascertain in the first instance the measure of duty which Mr. Thompson, the invitor and the host, owed to Mrs. Avery, the invitee and guest, under the circumstances of this case; in other words the degree of care which he was in law bound to exercise for her protection and safety during this gratuitous transportation. We should first inquire what was the legal relation existing between the parties.

Ordinarily in personal actions the duty which is violated is one of two kinds. Either it is one imposed upon the defendant equally with all the world and independent of any act or violation on his part, as for instance the duty of a driver of an automobile toward other travelers on the highway, or it may arise out of contract, either under seal or given for good consideration in consequence of which the defendant has assumed a correlative duty, an illustration of which is the carriage of persons or property for hire. There is, however, a third way in which a legal duty may arise, and that is from a gratuitous undertaking on the part of the defendant, a duty voluntarily assumed without consideration, and a duty owed to the plaintiff alone because of the peculiar relations of the parties. The most common instance of this third classification is a gratuitous bailment.

Within this zone, independent of either contract, or tort in its larger sense, falls the defendant's duty and therefore the plaintiff's right in the case at bar. The defendant (using this term for the sake of convenience) had entered into no contract with the plaintiff by the terms of which he had agreed to carry her safely from Friendship to Thomaston and return, nor was he obliged to invite her into his car to become his guest. He voluntarily undertook to transport her on this pleasure trip, and his liability wholly grew out of this voluntary undertaking and was commensurate with the duty so assumed by him.

The next inquiry is this, To what degree of care and exertion should he be held under these circumstances? Was he bound to convey her safely as a common carrier? Clearly not. Was he liable for injuries resulting from what has often been termed ordinary negligence; that is, a failure to exercise the care of an ordinarily prudent person in the same situation? Or should he be held bound to exercise only a slight degree of care and be liable only in case of reckless and willful misconduct, what has been often characterized as gross negligence?

There has been much controversy over the use of phrases expressing different degrees of negligence, as slight, ordinary, and gross, but. it seems to be largely a matter of terminology, and the later decisions, while for the most part rejecting the arbitrary distinctions, acknowledge the existence of conditions that increase or diminish the degree of care to be exercised. In Raymond v. Railroad Co. 100 Me. 529, 62 Atl. 602, 3 L. R. A. (N. S.) 94, this court said:

"It will be here observed that the courts in discussing the above propositions have used the term negligence instead of the word care, to express the measure of duty. But confusion has arisen from regarding 'negligence' as a positive instead of a negative word. For this reason it is usual to express the duty owed in positive terms by stating what constitutes due care, rather than in negative terms by stating what constitutes negligence, which is the unintentional failure to perform a duty implied by law. 'Negligence' is the opposite of 'due care.' Where due care is found, there is no negligence. If there is a want of due care then there is negligence. We are inclined to agree with the great weight of judicial opinion that the attempt to divide negligence, or its opposite due care, into degrees will often lead to confusion and uncertainty. It seems to us therefore that the measure of duty, owed by parties in the discharge of their mutual relations, would be better expressed by the use of the term negligence, if one prefers a negative definition, or due, reasonable or ordinary care, always having reference to the circumstances and conditions with regard to which the terms are used."

On the other hand, the Massachusetts court in its latest discussion of the subject, closes an elaborate analysis of the authorities with the words:

"We are of opinion * * * that in this commonwealth at any rate degrees of negligence are known to the law." Massaletti v. Fitzroy, 118 N. E. 168, decided October, 1917, not yet officially reported.

Notwithstanding these antagonistic statements as to definition, we doubt not that the two courts from a given state of facts would be apt to reach the same conclusion as to liability. The difference is more verbal than real.

This is illustrated in the analogous doctrine of gratuitous bailments—what the earlier writers termed a mandate. In Storer v. Gowen, 18 Me. 174, the court, on the authority of Story on Bailments, stated the law in these words, "In such case the bailee, or mandatary, is responsible only for gross negligence," but added, "The care required in a bailment of this kind, will depend much upon* the nature of the goods delivered. If money is delivered it is to receive more care than common property." Restated in Dinsmore v. Abbott, 89 Me. 373, 36 Atl. 621, the doctrine appears as follows:

"The burden was upon the plaintiff, whatever the form of action, to show a breach of the implied contract of the defendants as gratuitous bailees, viz. to use ordinary care in keeping the property and to deliver it upon demand, if after using due care, they should have it in their possession."

The language is different in these two opinions, but the essential elements of the self-imposed duty undoubtedly remain the same.

Adopting then the modern method of statement, we think that the true rule of liability on the part of a voluntary undertaker should be this, that he be required to exercise that degree of care and caution which would seem reasonable and proper from the character of the thing undertaken.

The courts have had occasion to consider the governing rule in several instances as between invitor and invitee in case of gratuitous transportation.

In Moffat v. Bateman, L. R. 3 P. C. 115, the plaintiff was being conveyed by the defendant in his carriage to perform certain work on the defendant's house. The plaintiff claimed that because of negligent driving the kingbolt of the carriage broke, the horses bolted, the carriage was overturned and he himself was injured. The court held that as there was no evidence of gross negligence the plaintiff could not recover. This decision was later commented upon by Smith, L. J., in Coughlin v. Gillison, [1899] 1 Q. B. 145, as follows:

"What was there laid down was that if you undertake to drive a man in your carriage, you must not be guilty of gross negligence in driving, if you wish to escape liability for an accident to him while being driven."

And by Collins, L. J., in these words: "The plaintiff had intrusted himself to the defendant to be carried, and there was a clear duty on the part of the bailee towards the bailor not to be guilty of gross negligence causing injury to him."

In Mayberry v. Sivey, 18 Kan. 291, the plaintiff was an invited guest of the defendant, who was driving the team. Against the protestations of the plaintiff and his request to alight, the defendant recklessly raced his horse and a...