Posner v. Minsky

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; SPIEGEL
• Citation: Posner v. Minsky, 353 Mass. 656, 234 N.E.2d 287 (Mass. 1968)
• Decision Date: 08 February 1968
• Parties: Lee POSNER et al. v. N. Benjamin MINSKY, Executor.

Page 287

234 N.E.2d 287

353 Mass. 656

Lee POSNER et al. v. N. Benjamin MINSKY, Executor.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Dec. 4, 1967.

Decided Feb. 8, 1968.

Albert P. Zabin, Boston, for plaintiffs.

J. Norman O'Connor, Adams, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is an action of tort for personal injuries sustained by Lee Posner (hereinafter called the plaintiff) as a result of a motor vehicle accident. The declaration is in four counts. Count 1 is based on gross negligence; count 3 on ordinary negligence. In counts 2 and 4, Joseph Posner, the plaintiff's husband, seeks consequential damages. These counts are likewise based on gross negligence and ordinary negligence, respectively. The plaintiff was a passenger in a car driven by the defendant's testatrix.

The case was referred to an auditor, who found for the defendant on each of the counts. Subsequently, the case was tried to a jury on the auditor's report and other evidence. The jury returned verdicts for the defendant on all counts. The case is here on the exceptions of the plaintiffs and of the defendant.

We summarize the evidence most favorable to the plaintiffs. On February 23, 1961, the defendant's testatrix, Mrs. Sophie Minsky, wanted to drive from her home in Pittsfield to attend a flower show in Springfield. She telephoned the plaintiff, who was a friend of hers, and stated that she had 'misplaced' her license and was unable to find it. She asked the plaintiff to 'come and ride' with her to the show so that Mrs. Minsky could drive on the plaintiff's license. The plaintiff was busy baking but Mrs. Minsky 'talk(ed her) into' going. Mrs. Minsky called for the plaintiff at 10:30 A.M. and they began the trip to Springfield. Mrs. Minsky was driving. The weather was rainy and foggy when they entered the Massachusetts Turnpike at the Lee Interchange. The posted speed limit had been reduced from sixty to thirty miles an hour. After traveling about forty miles Mrs. Minsky brought the car to a stop 'in the middle of the road.' The plaintiff remonstrated and said, 'Don't stop here. This is too foggy. * * * We get killed.' 'Cars going (to) bump you.' A few minutes later the car was struck in the rear by a large trailer truck. Mrs. Minsky died as a result of the accident and the plaintiff was severely injured.

I. THE PLAINTIFFS' EXCEPTIONS.

The plaintiffs contend that the trial judge 'erroneously instructed the jury that in order for the defendant to be liable to the plaintiffs for ordinary negligence, the plaintiff had to confer an actual benefit on the defendant's testatrix, even though the plaintiff believed she was conferring the benefit requested by the defendant's testatrix.'

In the original charge, to which no exceptions were taken, the jury were correctly instructed in regard to the plaintiff's status as a passenger.

After the jury had retired and deliberated for some time, the jury requested further instructions as to the definition of 'benefit', the degree of benefit necessary, and the degree to which the conferring of a benefit must have been the motive for Mrs. Posner's riding as a passenger. The judge again correctly charged the jury, and no exception was taken.

After further deliberation, the jury asked the following question: 'Must the benefit be actually performed by the plaintiff or does the mere thought that she was performing a benefit suffice according to law?' (We note that there was evidence that after the accident Mrs. Minsky was taken to a hospital and that a valid driver's license was found in her wallet.) The judge then instructed the jury as follows: 'Well, there has to be a benefit conferred on the defendant by the plaintiff. Actually conferred. If you go out with a friend and you think you are doing her a favor and you're not really doing it--that isn't enough. The benefit has to be conferred in order to make it a benefit being conferred.' To this instruction the plaintiffs excepted. After a brief period of time, the jury returned the verdicts for the defendant.

There was evidence from which the jury could infer that Mrs. Minsky, perhaps unknowingly, had her driver's license with her at the time of the accident. If such an inference were drawn, under the rule of law enunciated in the judge's answer to the last question it would follow that because the plaintiff actually conferred no benefit upon Mrs. Minsky the plaintiff could not recover for Mrs. Minsky's ordinary negligence. A guest in an automobile is not owed a duty of due care by his host, and cannot recover for injuries due to ordinary negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C, 264. However, where a passenger travels in an automobile in order to confer a benefit upon a host, the passenger may recover for ordinary negligence. Taylor v. Goldstein, 329 Mass. 161, 164--165, 107 N.E.2d 14, and cases cited. It has been held that one riding in order to furnish the driver with the protection of one's license to drive is conferring such a benefit, and the driver is liable for ordinary negligence. Semons v. Towns, 285 Mass. 96, 100, 188 N.E. 605. In the case at bar, there was evidence from which the jury could find that the plaintiff rode with Mrs. Minsky on the mutual understanding that she was conferring a similar benefit. We can find no case in which an identical question is raised. The weight of the case law, however, indicates that it is the state of mind of the passenger and host, and not the actual conferring of a benefit, that is determinative. The question is one of status, often put in terms of whether the passenger has the status of an invitee, an analogy from the law governing the liability of landowners. See Taylor v. Goldstein, 329 Mass. 161, 164, 107 N.E.2d 14; Falden v. Crook, 342 Mass. 173, 175, 172 N.E.2d 686; Tomaino v. Newman, 348 Mass. 433, 436, 204 N.E.2d 126. The status of a business invitee is determined by the purpose for which the premises are entered and the expectations of both host and invitee as to the purposes of the visit. See Plummer v. Dill, 156 Mass. 426, 427, 31 N.E. 128. If by some fortuity not contemplated by the parties, the purpose of a business visit is frustrated, the status of a business invitee for tort recovery purposes would not be affected. We are of opinion that the workings of the 'benefit' rule in automobile accident cases must proceed on a similar footing. In the instant case, to say that the plaintiff's status as an invitee in the automobile is affected by Mrs. Minsky's unknowing possession of her license is to ignore the consensual origin of that status. The judge's answer to the jury's last question misstated the law.

'A charge is to be considered as a whole, in order to determine whether it is legally correct, rather than tested by fragments.' Lockwood v. Boston Elev. Ry., 200 Mass. 537, 544, 86 N.E. 934, 936, 22 L.R.A.,N.S., 488. The defendant contends that the jury were correctly guided by earlier instructions. A reading of the whole charge, however, convinces us that the judge did not instruct the jury in regard to the precise issue raised by the jury's final question except in his answer to that question.

We deal with the remaining exceptions, since the same problems may arise at a new trial. At the trial, the defendant called Posner, the male plaintiff, and examined him in regard to another action begun in the United States District Court by the plaintiffs against other parties, including the driver of the trailer truck. The following questions and answers were admitted over the plaintiffs' objections. COUNSEL FOR THE DEFENDANT: 'Have you been examined before trial by any of the lawyers in that case?' THE JUDGE: 'I take it this is offered * * * for the reason of finding out if he has, then testing his credibility and only for that reason at the moment?' COUNSEL FOR THE DEFENDANT: 'That is all--at the moment.' THE WITNESS: '* * * No, I have not.' COUNSEL FOR THE DEFENDANT: 'You have not? Did you in preparing for that trial tell your attorney that the motor vehicle in which your wife was a passenger was...