Howes v. Kelman
| Decision Date | 17 January 1951 |
| Parties | HOWES v. KELMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. H. Stevens, Brockton, and E. G. Townes, Brockton, for the plaintiff.
G. L. Wainwright, Brockton, for the defendant.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and COUNIHAN, JJ.
This is an action of tort to recover for personal injuries alleged to have been sustained by the plaintiff while riding in an automobile operated by the defendant. The jury returned a verdict for the plaintiff on the first count based on negligence of the defendant, and for the defendant upon the second count charging her with gross negligence. The defendant excepted to the denial of a motion to direct a verdict for her upon the first count.
In deciding the correctness of this ruling upon the motion we need only consider evidence favorable to the plaintiff from whatever source it came, including evidence more favorable to her than that given by herself. It upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in favor of the plaintiff, then there was no error in the denial of the motion, even if there may be other and different circumstances disclosed in the evidence which, if accepted as true by the jury, would support a conclusion adverse to the plaintiff. The question presented by the motion was not the weight of the evidence but whether there was any evidence viewed in the light most favorable to the plaintiff that would support her cause of action. Duff v. Webster, 315 Mass. 102, 103, 51 N.E.2d 957; Kelly v. Railway Express Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411; Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503.
We recite the facts which the jury could find were established by the evidence. The plaintiff, a stitcher in the employ of a shoe company, worked overtime on August 13, 1947, at the request of one Freedman, 'a member of the firm.' She had been regularly transported between her home in Lakeville and the factory in New Bedford by a fellow employee, but if she worked overtime as requested she would be unable to avail herself of this means of transportation. It was under these circumstances that she agreed to comply with her employer's request. It could properly be inferred, notwithstanding Freedman's denial, that conveyance to her home, if not an express term of the arrangement which she made with him in accordance with which she agreed to accommodate him by working overtime, was at least an implied term of the arrangement. When she finished her work 'she went home in Harry Freedman's car, which was the only way she could get home that night.'
The defendant, a bookkeeper in the employ of the shoe company, was requested by Freedman to take some passengers home in his automobile. The passengers turned out to be the plaintiff and two other employees of the shoe company. The reason for the presence of these two employees in the factory after regular hours did not appear. Ordinarily workmen do not remain in a factory after usual hours unless they have work to do. The defendant complied with Freedman's request. It was not unusual for her to drive her employer's automobile, as she did so whenever requested by him. The automobile met with an accident as she was driving the three employees to their homes and the plaintiff was injured. After the accident, these three employees were taken from the scene by the personnel manager of the shoe company.
The defendant concedes that the evidence was sufficient to show that the accident was caused by her negligence but contends that the relation of the plaintiff to herself was that of a gratuitous passenger or guest and a host, and that the defendant owed the plaintiff only the duty to refrain from gross negligence, of which the jury found she was not guilty.
The defendant did not allege in her answer anything to indicate whether or not the shoe company was insured under the workmen's compensation act, nor did she at any time during the trial, or in her brief or oral argument, make any reference to the act. We do not, therefore, consider what effect, if any, this matter would have if the point had been raised. Thorneal v. Cape Pond Ice Co., 321 Mass. 528, 535-536, 74 N.E.2d 5; Pell v. New...
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