Flynn v. Lewis

• Citation: 121 N.E. 493,231 Mass. 550
• Parties: FLYNN v. LEWIS (two cases).
• Decision Date: 03 January 1919
• Court: United States State Supreme Judicial Court of Massachusetts

231 Mass. 550

121 N.E. 493

FLYNN

v.LEWIS (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Jan. 3, 1919.

Exceptions from Superior Court, Essex County; Marcus Morton, Judge.

Actions by Josephine C. Flynn, and by Joseph J. Flynn, administrator, against Henry Bradford Lewis. In the first case, after ruling and refusals to rule, plaintiff excepts by consent; in the second case, after refusal to rule, defendant excepts by consent. Exceptions in each case overruled.

Walter Coulson, of Lawrence, for plaintffs.

Walter I. Badger, of Boston, and Michl. H. Shanly, for defendant.

BRALEY, J.

The plaintiff's intestate while riding in the defendant's automobile driven by a chauffeur employed by him, having suffered personal injuries which after a period of conscious suffering resulted in death, the first action is at common law for her injuries, and the second action is brought under R. L. c. 171, as amended by St. 1907, c. 375, to recover damages for her death.

[1] The jury having found, on evidence which warranted the finding, that the overturning of the automobile was due to the negligence of the chauffeur, and that the decedent was is the exercise of due card, we come to the question of the defendant's liability. It was uncontroverted that the decedent was in the automobile on the invitation of the defendant's daughter, to whom her father had given permission to use it for the purpose of going from Lawrence to Boston to buy a fur coat, and it was on the return journey that the accident happened. The defendant's responsibility rests on the authority conferred on his daughter to invite the decedent to accompany her. Kennedy v. R. & L. Co., 224 Mass. 207-209, 112 N. E. 872. The jury of course had the right to believe the evidence of the administrator, who testified that in an interview after the accident, the defendant said that his daughter told him ‘they were going to have a football game Saturday and asked me if she could have a fur cost. I told her of course she could. Then she asked me if she could have the machine, and if she could invite Josephine,’ the decedent, ‘to go to Boston with her to help her to select her coat. I told her she could. * * *’ The question is the same as if the defendant personally had invited the decedent to accompany his daughter to help in the selection of the garment. It was agreed at the argument that they were intimate friends, and often had ridden together in the automobile, and it as plain that the decedent neither asked nor expected any recompense, but went for the accommodation of her friend, by whom transportation for their mutual companionship and enjoyment had been provided.

The element of any pecuniary benefit or gain to the defendant being absent, the transaction was gratuitous, under which he is liable only for gross negligence in the operation of the automobile. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;West v. Poor. 196 Mass. 183, 81 N. E. 960,11 L. R. A. (N. S.) 936, 124 Am. St. Rep. 541. The case of Loftus v. Pelletier, 223 Mass. 63, 111 N. E. 712, where the evidence warranted a finding that the plaintiff's right to transportation by the defendant, a physician, was an implied term of her contract of employment as a nurse, is plainly distinguishable. The plaintiff's first and second requests, ‘if the jury find that the plaintiff's intestate was in the machine for the purpose of assisting the defendant's daughter at the...