Baker v. Hurwitch

• Decision Date: 14 December 1928
• Citation: 164 N.E. 87,265 Mass. 360
• Parties: BAKER v. HURWITCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 360

164 N.E. 87

BAKER

v.HURWITCH.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 14, 1928.

Exceptions from Superior Court, Suffolk County; W. L. Collins, Judge.

Action of tort by David Baker against Samuel Hurwitch. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained, and judgment entered for defendant.

Automobiles k181(1)-Uncle driving nephew on nephew's way home after stay as uncle's guest held not liable for nephew's injuries, where not grossly negligent.

Uncle, driving nephew to point from which nephew could secure transportation home after visit with uncle as guest, held not liable for injuries sustained by nephew as occupant of the automobile, where uncle was not guilty of gross negligence, since service was grantuitous, and no contract arose.

Avery, Dooley, Post & Carroll, of Boston (H. S. Avery, of Boston, of counsel), for plaintiff.

S. A. Seder, of Worcester, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries alleged to have been received by the plaintiff while riding in an automobile owned and driven by the defendant. There were two counts in the declaration, one alleging that the plaintiff was riding as a guest and was injured through the gross negligence of the defendant. That count drops out of the case because the jury found that the defendant was not grossly negligent. The other count alleged that the plaintiff while rightly and lawfully riding as a passenger was injured through the negligence of the defendant in operating his automobile.

There was evidence tending to show that the plaintiff, a nephew of the defendant, went from Boston to Worcester on a Thursday at the request of the defendant to the effect that he confer the favor of bringing money to the defendant who promised to give him ‘a good time’ and pay the expense of the plaintiff or bring him back by automobile. The plaintiff took the money to the defendant as requested and remained as guest with the defendant until the following Sunday when, after some urging, the plaintiff did not return to Boston by train but rode with the defendant in his automobile to Millis to visit a relative, the defendant saying that ‘either he made arrangements or he know friends that will be there with machines from Boston and he will see that I should have somebody to go to Boston from Millis, which is a shorter way than from Worcester, and if they are not there he will take us to the nearest railroad station, and if not, he said he will take us with his own machine to Boston.’ The plaintiff testified that the...