Falden v. Crook

• Decision Date: 06 March 1961
• Citation: 342 Mass. 173,172 N.E.2d 686
• Parties: Gwendolyn FALDEN et al. v. Ralph H. CROOK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 686

172 N.E.2d 686

342 Mass. 173

Gwendolyn FALDEN et al. v. Ralph H. CROOK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 3, 1961.

Decided March 6, 1961.

Milton I. Smith, Boston, for plaintiff.

No argument nor brief for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

KIRK, Judge.

The minor plaintiff (hereinafter called the plaintiff) was injured on August 7, 1953, at 8:30 p. m. when she was thrown from the running board of a small truck against an upright post supporting the elevated railway tracks on Washington Street in Boston. The defendant Crook was the operator of the truck, and was employed as an ice cream salesman by the owner, the defendant Simco Sales Service of Boston, Inc. (Simco). He sold ice cream from the truck to buyers along a route which had been prescribed for him by Simco. His duties were to drive the truck over the route, sell ice cream, 'drum up trade,' and (he imagined) create good will. The more ice cream he sold, the more money he made; and to sell more ice cream, he tried to please his customers, mostly children.

On the day of the accident the plaintiff, then eleven years old, crossed Washington Street to buy ice cream from Crook. She bought a popsicle. A girl companion asked Crook if she and the plaintiff could have a ride; and Crook gave them and several other children a ride around the block. When it was over and all the children were off the truck, the plaintiff's companion asked Crook if he was going to Hammond Street. He answered 'yes,' and was asked if he would take the plaintiff home. He again said 'yes', and told the plaintiff to get on the truck. She stood on the right hand running board and held onto the door handle and post with both hands. When Crook drove around a corner at thirty to thirty-five miles per hour, she was thrown off the truck, against the elevated post, and sustained injuries.

In all there was eleven counts in the plaintiffs' substitute declaration. The case was submitted to the jury only on counts which alleged gross negligence on the part of Crook. Damages for personal injuries were awarded to the plaintiff and consequential damages to her mother on those counts. Verdicts were directed for the defendants on all other counts.

We are concerned only with the plaintiffs' exceptions to the direction of verdicts on the following counts: Number 4, the plaintiff against Crook for ordinary negligence; number 7, the plaintiff against Simco for ordinary negligence; number 8, the plaintiff against Simco for gross negligence; numbers 10 and 11, the mother against Crook for consequential damages for ordinary negligence, and against Simco for consequential damages for (a) ordinary negligence and (b) gross negligence.

The plaintiffs also excepted to the refusal of the judge to give requested instructions to the jury. These will be mentioned later.

The status of the plaintiff on the vehicle determines whether the action of the judge was right in the disposition of the counts in which Crook is a defendant. If the plaintiff was a business invitee of Crook, she may recover for ordinary negligence. Epstein v. Simco Trading Co., Inc., 297 Mass. 282, 8 N.E.2d 767. If she was a gratuitous guest, Crook is liable only for gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 510, 118 N.E. 168, L.R.A.1918c, 264; Flynn v. Hurley, 232 Mass. 182, 185, 124 N.E.2d 810. The rule which determines the status of a person who is riding as a passenger in a motor vehicle is set out in Taylor v. Goldstein, 329 Mass. 161, 107 N.E.2d 14, where an analysis of our cases was made. It was said at page 165 of 329 Mass., at page 16 of 107 N.E.2d: 'The rule deducible from these decisions is that a plaintiff acquires the status of an invitee if he is riding with the defendant for the purpose of conferring a benefit in the performance of something in which the defendant has an interest provided the benefit is other than "those intangible advantages arising from mere social intercourse" O'Brien v. Shea, 326 Mass. 681, 683, 96 N.E.2d 163, 165; that the benefit need not be of a pecuniary nature; and that it need not arise from a contractual relationship.'

Applying this rule to the instant case we are of the opinion that there was no error in directing verdicts for Crook on the counts alleging ordinary negligence. It could not be found that the plaintiff was conferring a benefit upon Crook in a matter in which he or his employer had an interest. Quite the reverse is true. By request, Crook was taking her to her home at the end of the day. The prospect that she might at some later date buy ice cream from Crook rather than from someone else, because of his favor in driving her home, is too remote to bring the case within the stated rule. Crook was doing a kind act rather than building up good will for his business. The plaintiff was a gratuitous guest, and Crook would not be liable for ordinary negligence.

Since Crook is not liable for ordinary negligence, a fortiori Simco cannot be liable on counts based on ordinary negligence. Restatement 2d: Agency, § 217B (2), and comment.

The authority of Crook to invite the plaintiff to ride on the truck determines whether the judge was right...