Shriear v. Feigelson

Decision Date09 April 1924
Citation143 N.E. 307,248 Mass. 432
PartiesSHRIEAR v. FEIGELSON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Worcester County; Wm. A. Burns, Judge.

Action of tort by Samuel Shriear against Benjamin Feigelson and another. Verdict for plaintiff, and defendants bring exceptions. Exceptions sustained, and judgment ordered for defendants.

1. Partnership k153(1)-One of two partners owning automobile held not liable for negligence of other.

Where partners owned an automobile, and on alternate Sundays it was used in turn by them in their separate affairs, and an accident took place on Sunday, the partner who was not entitled to the automobile on that day was not liable for injuries to a third party.

2. Negligence k136(18)-Evidence of gross negligence of owner of automobile held insufficient to go to jury in guest's action.

In an action by guest in automobile for injuries received in a collison with a post, evidence held not to show any gross negligence on the part of the defendant, and verdict should have been directed for him.

3. Negligence k22 1/2-Host only liable for gross negligence in driving.

A guest in an automobile cannot recover for negligence against his host, unless he can prove gross negligence.

John F. McGrath, of Fitchburg, and J. Joseph MacCarthy, of Worcester, for plaintiff.

Frank P. Ryan, of Worcester, for defendants.

WAIT, J.

The plaintiff was injured when an automobile, in which he was riding, collided with a post which stood a little beyond the edge of the road along which the car was moving.

The declaration was in three counts, all for the same cause of action. The first count described the plaintiff as ‘an occupant of the defendants' automobile in company with the defendants and certain other persons.’ The second count alleged that ‘the defendants invited and requested him to ride in an automobile of the defendants, and the plaintiff accepted the invitation of the defendants and rode in said automobile.’ The third count alleged that the plaintiff ‘employed the defendants for hire to cnvey him in the defendants' automobile.’

[1] The car was owned by the defendants, who were partners in a wool business. It was used in their business; and, on alternate Sundays, it was used, in turn, by Feigelson and by Goldberg in their separate affairs. The accident took place on a Sunday on which Feigelson was using the car. There was no evidence and no contention that Goldberg was present, or that he had any concern in what the occupants of the car were doing.

Upon these facts Teague v. Martin, 228 Mass. 459, 117 N. E. 844, establishes that no liability on the part of the defendant Goldberg exists. The question of Goldberg's liability, however, was not properly raised. The bill of exceptions shows that the attention of the trial judge was not called to this aspect of the case by any request for a ruling, and that the motions that a verdict be directed do not clearly present the question.

The occupants of the car at the time of the accident were Mr. Feigelson, his daughters Lillian, Rose and Mary, the plaintiff and Mr. Germain who was driving. All except Mr. Germain were thrown from the car. Lillian Feigelson was killed, and the others were injured. Since the accident, Rose Feigelson has married the plaintiff, and Mary Feigelson has married Mr. Germain.

The case was, in fact, defended by the insurer of the car. It comes before us, after verdict for the plaintiff against the defendants named in the writ, upon defendants' exceptions to the admission and rejection of evidence, to the refusal of certain requests for instructions, and to the refusal to direct verdicts upon the first and second counts. The court directed a verdict for the defendants upon the third count, because there was no contention made at the trial that the defendants were acting for hire, or that the plaintiff was anything other than an invited guest of Mr. Feigelson. No suggestion is made to us that this order was improper.

It is not necessary to consider the rulings in the admission and rejection of evidence.

[2] The third request for ruling, ‘That the plaintiff has failed to prove that the defendants were grossly negligent,’ should have been given, and a verdict for the defendants should have been directed.

The testimony, taken most favorably for the plaintiff, shows that on Sunday, September 13, 1919, a sister of Mr. Feigelson was to be married at Chelsea. The Feigelson family went from Worcester to be present at the wedding. Mrs. Feigelson, with her daughters, were to go by the automobile. The plaintiff was asked to accompany them, and Mr. Germain was also invited to go and to drive the car. Both the plaintiff and...

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25 cases
  • Cook v. Cole
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 12, 1931
    ...struck a tree, did not show gross negligence on the part of the defendant. Burke v. Cook, 246 Mass. 518, 141 N. E. 585;Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307. There was no evidence that he was not paying attention to his driving. It does not appear that the operator was asleep o......
  • Krueger v. Taylor, Civ. A. No. 3353.
    • United States
    • U.S. District Court — District of Columbia
    • March 5, 1941
    ...157 Va. 30, 160 S.E. 77; Young v. Dyer, 161 Va. 434, 170 S.E. 737; Carroll v. Miller, 175 Va. 388, 9 S.E.2d 322; Shriear v. Feigelson, 248 Mass. 433, 143 N.E. 307; Bank v. Satran, 266 Mass. 253, 165 N.E. 117; Cook v. Cole, 273 Mass. 557, 174 N.E. 271; Lefebvre v. Howell, 288 Mass. 253, 192 ......
  • Winslow v. Tibbetts, s. 5466-5468.
    • United States
    • Maine Supreme Court
    • October 25, 1932
    ...of proof of facts magnifying the degree of negligence is noted, and cases fortified by such proof are distinguished. In Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307, gross negligence was not inferred from the mere unexplained fact that a guest was injured while riding in an automobile......
  • Meaney v. Doyle
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 26, 1931
    ...to be grossly negligent. Kirby v. Keating (Mass.) 171 N. E. 671. Cases like Burke v. Cook, 246 Mass. 518, 141 N. E. 585;Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307;Marcienowski v. Sanders, 252 Mass. 65,145 N. E. 275;Bertelli v. Tronconi, 264 Mass. 235, 162 N. E. 307;Bank v. Satran, 2......
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