Balian v. Ogassin

Decision Date24 December 1931
Citation277 Mass. 525
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

April 10, 1931.

Present: RUGG, C.


Negligence, Invited person, Motor vehicle, In use of way. Evidence, Presumptions and burden of proof. Motor Vehicle, Registration, Operation. Nuisance. Parent and Child. Words, "Injuries suffered by a person."

A four and one half year old child of the daughter by a former marriage of the wife of the driver of a motor truck, while playing in a street near the driver's home, was picked up by the driver and carried with him to another town, where the driver transferred him to an automobile to drive him back to the driver's home, and while on that journey the child was injured through the driver's negligence. The child's home was in a neighboring city, but with his mother's consent he was visiting his grandmother. There was no evidence that any one whose duty it was to care for the child had given the driver express consent so to take the child to ride, nor was there evidence expressly disproving such consent. In an action by the child against the driver, the plaintiff made no contention that the defendant was grossly negligent. A verdict was ordered for the defendant. Held that

(1) The defendant's undertaking to transport the plaintiff was gratuitous;

(2) The plaintiff's tender years did not constitute an exception requiring a variation of the general rule that a gratuitous guest in a motor vehicle cannot recover in an action against the operator for personal injuries sustained by reason of ordinary negligence on the defendant's part;

(3) Proof of the circumstances in which the transportation was undertaken was a part of the case for the plaintiff, and the defendant was not bound to prove express or implied assent to the gratuitous transportation in order to obtain the benefit of such rule;

(4) The plaintiff did not offer evidence warranting a finding of a relation between him and the defendant which rendered the defendant liable for ordinary negligence.

By reason of the provisions of G.L.c. 90, Section 9, in the form appearing in St. 1929, c. 180, a gratuitous guest of the driver of an automobile not legally registered, if not barred by his own lack of due care or unlawful act, may recover, in an action against the driver as one maintaining a nuisance, for injuries received while the automobile is being so driven if he did not know or have reason to know that it was not legally registered.

Where the gratuitous guest above described is a minor and his father by reason of the injuries he sustained, has been put to medical expense, he also can recover in an action of tort against the driver of the motor vehicle not legally registered.

At the trial of an action of tort against the driver of a motor vehicle not legally registered, there was evidence that the person in whose name the vehicle was registered as sole owner was a part owner only. The judge charged the jury in substance that if the registrant was a part owner of the vehicle he had a right to have it registered in his name. The plaintiff excepted to such charge and the judge stated that he would correct it but did not do so. The evidence as to ownership was conflicting. The jury found specially that the registration was proper.

Held, that the judge's instruction was error prejudicial to the plaintiff, and his exception thereto was sustained.

TWO ACTIONS OF TORT, described in the opinion. Writ in the first action dated October 11, 1929, and in the second action in the Municipal Court of the City of Boston dated October 31, 1929.

After amendment of the writ in the second action, that action was removed to the Superior Court, where the two actions were tried together before Gibbs, J. Material evidence, rulings by the trial judge and a special finding by the jury are stated in the opinion. Verdicts were ordered for the defendant. The plaintiffs alleged exceptions.

F.I. Rose & L. Jablon, for the plaintiffs, submitted a brief. C.C. Petersen, for the defendant.

FIELD, J. These are actions of tort, one brought by a minor, by his next friend to recover damages for personal injuries sustained by him on August 27, 1929, while riding in an automobile operated by the defendant, and the other brought by the father of the minor plaintiff to recover his medical expenses. The declaration in each case contains a count alleging negligence and another alleging that the defendant's automobile was not legally registered. (In the minor plaintiff's case a count alleging gross negligence was waived.) There was evidence that the automobile operated by the defendant was not legally registered, but the jury found, in answer to a special question, that it was legally registered. Aside from the evidence that the automobile was not legally registered there was evidence of ordinary negligence of the defendant, but no evidence of gross negligence. A verdict for the defendant in each case upon each count of the declaration was directed. The cases come before us on the plaintiffs' exceptions to the direction of verdicts, to the ruling of the trial judge that it was necessary for the plaintiffs to show gross negligence in order to recover, to his refusal to rule that the plaintiffs were entitled to recover in these actions and to make rulings requested by the plaintiffs bearing upon the issue of registration, to parts of the charge bearing on that issue, and to the denial of the plaintiffs' motion to set aside the special finding of the jury.

The plaintiffs' primary contention is that it was error to direct verdicts for the defendant. The plaintiffs contend, in substance, (a) that in each case a verdict for the plaintiffs would have been warranted on the count of the declaration alleging negligence, on the ground that the minor plaintiff was riding with the defendant, not as a guest, but in such a relation to him that the defendant was liable for injuries resulting from ordinary negligence, and (b) that in each case a verdict for the plaintiffs would have been warranted on the count of the declaration alleging that the automobile was not legally registered, on the ground that, even if the minor plaintiff was merely a guest of the defendant, the defendant was liable because the automobile operated by him was not legally registered, and that there was error in the trial of the question whether the automobile was so registered, which resulted in the special finding.

1. It was not error to direct verdicts for the defendant on the counts of the declarations alleging negligence.

The plaintiffs do not contend that the counts for negligence should be interpreted as alleging any ground of recovery other than ordinary negligence. Since there was evidence of such negligence, the question for our determination, in respect to these counts, is whether it could have been found that the minor plaintiff was riding with the defendant under such circumstances that the defendant was liable for ordinary negligence in the operation of the automobile.

The evidence explanatory of the presence of the minor plaintiff in the automobile was in substance as follows: The plaintiff, then about four and one half years old, was the son of a daughter, by a former marriage, of the defendant's wife, and lived in Somerville. On the day before the accident the grandmother, when visiting the boy's mother in Somerville, requested the mother to allow her to take the boy for a few days' visit to her home in Roxbury, where she lived with the defendant. The mother consented and the grandmother took the boy with her. About noon of the day of the accident, the defendant, driving a truck for his employer, saw this plaintiff playing on the sidewalk in Roxbury on the street where the defendant lived, "picked him up and put him in the truck," took him to Chelsea in the truck and then transferred him to an automobile. The accident happened as they were driving back to Roxbury. The defendant testified that "he had no talk with the boy's father and mother before doing this," that it "was the first time he saw the boy, and that presumably his wife, the boy's grandmother, had brought him the night before, and that he had been sleeping when the . . . [defendant] got home." The defendant also testified "that he spoke to nobody about taking the boy when he saw him playing, except that he told the storekeeper to tell the defendant's wife that he had taken him." The boy's mother testified that she had no talk at any time with the defendant about the boy before the accident, and knew nothing about the accident until two days after it happened.

It is beyond controversy that the defendant's undertaking to transport the minor plaintiff was gratuitous. See Baker v. Hurwitch, 265 Mass. 360 , and cases cited; and Jacobson v. Stone, 277 Mass. 323. Generally such an undertaking imposes no liability for ordinary negligence. Massaletti v. Fitzroy, 228 Mass. 487 . Cook v. Cole, 273 Mass. 557. The minor plaintiff's tender years do not take these cases out of the general rule. His age did not affect the degree of care required of the defendant, though it may have affected the nature thereof. See West v. Poor, 196 Mass. 183 , 185; Terlizzi v. Marsh, 258 Mass. 156 . We need not consider what degree of care the defendant was required to exercise toward an unwilling or nonassenting passenger. It does not appear that the child was unwilling to go to ride with the defendant, if his unwillingness is of any significance. Though there was evidence that his parents did not expressly consent to the transportation by the defendant, authorized assent thereto by the temporary custodian, the child's grandmother, was not negatived. There was no...

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