Fone v. Elloian

• Decision Date: 31 March 1937
• Parties: ROBERT FONE v. IRA P. ELLOIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 139

7 N.E.2d 737

ROBERT FONE v. IRA P. ELLOIAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1937

May 15, 1936.

Present: CROSBY PIERCE, DONAHUE, LUMMUS, & QUA, JJ.

Negligence, Guest Motor vehicle.

A boy, invited with other boys by the operator of a motor truck to ride to a pond for a swim and home again, could be found not to be a guest of the operator during an interval after he had got off the truck at the pond and before the homeward trip began, so that the operator might be found liable for injuries to the boy caused by ordinary negligence on his part in the care of the truck during that interval.

Evidence that the operator of a motor truck parked it on a slope of loose dirt and stones at the edge of a large, level field, and that after about ten minutes, although no one had touched it, the truck started down the slope and injured a boy whom he had left near it, warranted a finding of negligence of the operator.

TORT. Writ in the Superior Court dated January 16, 1932. The action was tried before Morton, J., who ordered a verdict for the defendant and reported the action to this court.

S. L. Solomont, (M.

E. Gallagher with him,) for the plaintiff.

D. H. Fulton, for the defendant.

DONAHUE, J. The defendant, on a warm August evening, invited the plaintiff, a boy eleven years of age, and several other boys and girls to ride on an automobile truck driven by the defendant from the neighborhood of the plaintiff's home in Charlestown to a pond located in Medford, for the purpose of going swimming. Upon arrival at the vicinity of the pond the defendant parked the truck on a steep bank. Everyone got off and all went swimming except the plaintiff and another boy. Neither had brought a bathing suit and neither could swim. They remained near the parked truck. About ten minutes after the truck had been parked, although no one in that time had touched it the truck started down the bank, crushing the plaintiff, who was in front of it, against a tree.

By reason of the defendant's invitation and the plaintiff's acceptance thereof, the undertaking of the defendant was the transportation of the plaintiff to the pond and, by implication, transporting him home again. The undertaking was gratuitous and created the relation of guest and host between the plaintiff and the defendant during such time as the defendant was engaged in that undertaking. Under our decisions the duty of the defendant in the matter of using care, so long as the plaintiff remained a guest, was merely to refrain from conduct which was grossly negligent. Massaletti v. Fitzroy, 228 Mass. 487 .

It is the defendant's contention that, during the interval of time between the arrival of the truck at the pond and the injury to the plaintiff ten minutes later, the guest relationship continued and furnished the measure of the quantity of care which during that interval the law required of the defendant.

But the undertaking of the defendant which created the guest relationship had to do only with the transportation of the plaintiff. When the truck was parked and everyone got off no further journey was immediately contemplated. The defendant no longer had, or assumed to have, any control over the person of the plaintiff. The plaintiff was free to go where he chose and to do as he wished. The defendant went swimming in the pond. The plaintiff stayed in the vicinity of the truck. Their earlier common interest, the transportation of the plaintiff to the pond, had ceased. In the contemplation of the parties such a common interest would not again arise until, at some time which was not fixed, the homeward transportation of the plaintiff should be undertaken by the defendant.

We think that there was here evidence which, if believed, would warrant a finding that, at the time of the plaintiff's injury, the guest relationship which earlier existed had terminated. Upon the termination of a special relationship between parties which fixes the character and the extent of the legal obligation as to using care owed by a defendant to a plaintiff, if no other such...