Passler v. Mowbray

• Decision Date: 07 May 1945
• Parties: PASSLER v. MOWBRAY (four cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 231

61 N.E.2d 120

PASSLER

v.MOWBRAY (four cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1945.

Exceptions from Superior Court, Suffolk County; Cabot and Hanify, Judges.

Separate actions of tort by Ruth S. Passler, by Ruth Ann Passler, by Mary Elizabeth Passler, and by Harry B. Passler against Valeria R. Mowbray to recover, in the first three cases, for personal injuries sustained while riding as a guest in an automobile operated by defendant, and to recover in the fourth case for consequential damages. A directed verdict for defendant was entered in each case on plaintiffs' opening and plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

G. J. Ganer and E. E. Mackiernar, both of Boston, for plaintiffs.

S. P. Sears and J. W. Lobdell, both of Boston, for defendant.

FIELD, Chief Justice.

These are four actions of tort. Three of the plaintiffs are, respectively, Ruth S. Passler and her young daughters Ruth Ann Passler and Mary Elizabeth Passler, each of whom seeks to recover compensation for personal injuries sustained, while riding as a guest in an automobile operated by the defendant, by reason of the alleged gross negligence of the defendant. In the fourth case the plaintiff, the husband and father, seeks to recover consequential damages. At the trial of the cases in the Superior Court counsel for the plaintiffs made an opening to the jury. The defendant moved for directed verdicts upon the opening. After counsel for the plaintiffs had stated, in reply to a question by the judge, that he had made a complete opening and ‘had nothing to add,’ the judge granted the defendant's motion and accordingly directed a verdict for the defendant in each case. The plaintiffs excepted.

There was no error.

It was proper for the judge to direct verdicts for the defendant it, assuming the facts stated in the opening to be true, these facts would not warrant verdicts for the plaintiffs respectively. Mulvaney v. Worcester, 293 Mass. 32, 33, 199 N.E. 405;Cahalane v. Dennery, 298 Mass. 34, 36, 9 N.E.2d 396.

The facts stated in the opening would not warrant a verdict for any of the plaintiffs. It was stated that the plaintiff Ruth S. Passler, the mother, and one of her daughters were riding on the front seat of the automobile with the operator, the defendant, and that the other daughter of this plaintiff and two daughters of the defendant were riding in the rear. The facts most favorable to the plaintiffs upon the issue of the defendant's gross negligence were that, when the automobile was travelling along the road at a speed not stated, the defendant ‘while driving turned her head * * * to reprimand her children or one of the children in back, and while she was driving along, the car crossed the road, crashed into a telephone pole and became wedged into a tree,’ and the three plaintiffs riding in the automobile were injured. These facts do not show directly or by reasonable inference that the defendant's turning...