Massaletti v. Fitzroy

Decision Date29 October 1917
Citation228 Mass. 487,118 N.E. 168
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Report from Superior Court, Middlesex County; Wm. F. Dana, Judge.

Action by Frances S. H. Massaletti against Mary Fitzroy. Case reported. Judgment on the verdict for defendant.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for plaintiff.

Whipple, Sears & Ogden, of Boston (Sherman L. Whipple and Jas. M. Hoy, both of Boston, of counsel), for defendant.


While staying with the defendant as her guest the plaintiff at the defendant's invitation went out with the defendant in her automobile. The automobile was driven by a chauffeur furnished by the owner of the garage where it was kept. Through the negligence of the chauffeur the machine was overturned and fell on the plaintiff causing the injuries here complained of. The jury found that while driving the machine the chauffeur acted as the defendant's servant and this finding was warranted by the evidence. They also found that the accident was caused by the negligence of the chauffeur. Upon the jury making these findings the judge directed the jury to return a verdict for the defendant and reported the case to this court.

‘At the trial the plaintiff did not claim that the jury could find from the evidence gross negligence on the part of the defendant.’ There was no question of negligence on the part of any one but the defendant's chauffeur and the plaintiff has not contended that there was. We therefore construe her concession to be a concession that she did not make out a case of gross negligence on the part of the chauffeur.

It was decided in West v. Poor, 196 Mass. 183, 81 N. E. 960,11 L. R. A. (N. S.) 936, 124 Am. St. Rep. 541, that a defendant who invites a plaintiff to ride gratis in his carriage is liable to the same extent that a gratuitous bailee is liable. In West v. Poor, a milkman on returning to his wagon after delivering some milk found in it the plaintiff and some other children. He did not order them out of the wagon, but drove on. When the defendant stopped to make the next delivery the plaintiff with the defendant's assistance undertook to get out of the wagon and while she was in the act of getting out the horse started; the plaintiff was thrown to the ground and suffered the injuries complained of in that action. That case was disposed of by this court in these words:

He [the defendant] did nothing and said nothing to invite them, and the nearest analogy that occurs to us is that of a self-invited guest in whose presence the host acquiesces and whose enjoyment he seeks to promote, or that of a gratuitous bailee. In the former case the degree of care required is that of licensor and licensee (Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463;Hart v. Cole, 156 Mass. 475, 31 N. E. 644,16 L. R. A. 557), which, as has often been said, requires only that the licensor shall not set traps for the licensee and shall refrain from reckless, willful and wanton misconduct tending to injure him (Massell v. Boston Elev. Ry., 191 Mass. 491, 78 N. E. 108). In the latter case, in order to render the bailee liable, it must appear that he has been guilty of culpable negligence Whitney v. Lee, 8 Metc. 91;Nolton v. Western R. R., 15 N. Y. 444, 69 Am. Dec. 623.’

The liability ‘of a gratuitous bailee’ was described by Chief Justice Shaw in the case of Whitney v. Lee, cited above in these words:

‘Subject to these remarks upon the application of these distinctions [as to different degrees of negligence] we think it well settled, that a bailee for safe keeping, without reward, is not responsible for the article deposited, without proof that the loss was occasioned by bad faith, or gross negligence. This rule was settled, on great consideration, and after full deliberation, in Foster v. Essex Bank, 17 Mass. 479 [9 Am. Dec. 168]; and this supersedes the necessity of any full review of the authorities.’

The plaintiff in effect asks us to overrule West v. Poor so far as the second ground goes on which that case was decided. In that connection she has relied upon Patnode v. Foote, 153 App. Div. 494,138 N. Y. Supp. 221;Pigeon v. Lane, 80 Conn. 237, 67 Atl. 886,11 Ann. Cas. 371; and Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319,50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342. In addition to these cases relied upon by the plaintiff there are cases to the same effect not cited by her which ought to be considered in connection with them. We take them up in their order. The first of these cases in point of time is Mayberry v. Sivey, 18 Kan. 291. That case was decided on the authority of this statement of Wharton in his textbook on Negligence:

‘A person who undertakes to do service for another is liable to such other person for want of due care and attention in the performance of the service, even though there is no consideration for such undertaking. The confidence accepted is an adequate consideration to support the duty.’

But Mr. Wharton is of opinion that in the common law of England there are no degrees of negligence. This conclusion is based on Mr. Wharton's contention that the opinion of Chief Justice Holt in Coggs v. Bernard, 2 Ld. Raymond, 909, so far as it made a distinction between gross and ordinary negligence, was based on a misapprehension as to the rule of the civil law. See Whar. on Neg. (2d Ed.) §§ 482-510. Whether different degrees of negligence are known to the common law is a question to be considered by itself and taken up later on.

The next case in point of time and the most important of all these cases is Pigeon v. Lane, 80 Conn. 237, 67 Atl. 886,11 Ann. Cas. 371. In that case the defendant had sent his sleigh in charge of his servant Rinski by name to bring his employés to their work and there was evidence that the plaintiff was injured by Rinski's negligence. The presidingjudge instructed the jury that it was immaterial whether the defendant was bound to send the sleigh to bring the plaintiff to his work or had sent the sleigh gratuitously; that in either case Rinski was the fellow servant of the plaintiff and the defendant was not liable. The Supreme Court of Errors of Connecticut decided that if the defendant sent Rinski gratuitously he was not the plaintiff's fellow servant and for that reason the appeal was well taken. After that point had been decided this was added (80 Conn. at page 241, 67 Atl. at page 887 [11 Ann. Cas. 371]):

‘Although, if the plaintiff was injured while riding upon the sleigh as a mere licensee, the defendants could be held liable only for their act of negligence in causing the injury-which would include their own or their servant Rinski's negligent acts by which the danger of riding upon the conveyance was increased, or a new danger created, while the plaintiff was riding under such license (Pomponio v. N. Y., N. H. & H. R. R., 66 Conn. 528, 538, 34 Atl. 491 [32 L. R. A. 530, 50 Am. St. Rep. 124])-the allegation that the injury was caused by the careless, negligent and improper driving of the conveyance by the defendant's servant, in such a manner that it collided with the bridge, is a sufficient averment to permit proof of that negligence which would render the defendants liable as licensors.’

Pomponio v. N. Y., N. H. & H. R. R., 66 Conn. 528, 34 Atl. 491,32 L. R. A. 530, 50 Am. St. Rep. 124 (on the authority of which this statement in Pigeon v. Lane is founded), was a case where on the findings made the plaintiff was crossing the defendant's track for his own convenience at a place planked as a crossing but where neither the plaintiff nor the public had a right to cross, and was injured by the negligence of the defendant in the operation of one of its trains. It was held that while the plaintiff being on the defendant's premises for his own convenience was a licensee and therefore took the defendant's premises as he found them (in the absence of a trap), the defendant was liable for injuries suffered by the plaintiff by reason of active negligence in the operation of its trains. Pomponio v. N. Y., N. H. & H. R. R. was decided on the authority of Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685. That was a case in which the plaintiff was proceeding as a licensee along an alleyway on the premises of the defendant and was injured by the negligence of the defendant's servants in throwing down beer barrels into the alleyway. In Pomponio v. N. Y., N. H. & H. R. R., ubi supra, the court quotes a reference of this court in Stevens v. Nichols, 155 Mass. 472, 475, 29 N. E. 1150,15 L. R. A. 459, to the doctrine of Corrigan v. Union Sugar Refinery, which was in these words:

‘The licensor has, however, no right to create a new danger while the license continues. Oliver v. Worcester, 102 Mass. 489, 502,3 Am. Rep. 485;Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685; Corby v. Hill, 4 C. B. (N. S.) 556. So a railroad company, which allows the public habitually to use a private crossing of its tracks, cannot use active force against a person or vehicle crossing under a license, express or implied.’

It is not necessary to consider whether this reference in Tevens v. Nichols to the doctrine of Corrigan v. Union Sugar Refinery is or is not a sufficiently careful statement of that doctrine to determine the reason on which it is founded or the limitations to which it is subject. The rule of Corrigan v. Union Sugar Refinery is a rule as to the liability of a licensor to a licensee. But where a defendant invites a plaintiff to ride gratis in his carriage the question is not a question of the measure of liability of a licensor to a licensee. It is the question of the measure of the liability assumed in case of a gratuitous undertaking. For this reason the doctrine of Pomponio v. N. Y., N. H. & H. R. R. and of Corrigan v. Union Sugar Refinery (the case on which Pomponio v. New York, New Haven & Hartford R. R. was decided) is not...

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