Thompson v. Sides

• Decision Date: 05 June 1931
• Citation: 275 Mass. 568,176 N.E. 623
• Parties: THOMPSON v. SIDES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 568

176 N.E. 623

THOMPSON

v.SIDES.

Supreme Judicial Court of Massachusetts, Essex.

June 5, 1931.

Exceptions from Superior Court, Essex County; A. E. Pinanski, Judge.

Action by Margaret Thompson against Winfield M. Sides. Verdict for defendant. On plaintiff's exceptions.

Exceptions sustained.

W. M. Espovich, of Haverhill, for plaintiff.

Matthew A. Cregg and Hugh A. Cregg, both of Lawrence, for defendant.

CARROLL, J.

This action is to recover for personal injuries and for damage to an automobile owned by the plaintiff and registered in her name. At the time of the collision with the defendant's vehicle, the plaintiff was in the front seat of her automobile sitting beside her husband who was operating it. They were going from Haverhill to Newton to spend the week-end with the plaintiff's sister. The case was tried with a cross-action. The record shows that as the plaintiff and her husband proceeded along the highway, she ‘looked out around and in front of her, and when the collision with the automobile operated by the defendant seemed imminent she raised her arm.’ There was evidence which would have warranted the finding that the defendant was negligent. The jury found for the defendant.

The plaintiff asked the judge to instruct the jury: ‘To constitute a common enterprise the occupant must have an equal right of control with the driver, and an equal right to direct the conduct of the undertaking.’ The judge, in his charge, instructed the jury, ‘If she [the plaintiff] was there in that car engaged in a joint enterprise or a common undertaking with him [her husband], even if he was not her agent she would be bound by his conduct.’ The jury were further instructed, in substance, that if there was a joint undertaking and the plaintiff's husband was lacking in proper care, it would be imputed to her; that if this relation did not exist and the plaintiff was her husband's guest, she would not be bound by his lack of care; that she could recover if she was exercising due care for herself and there was no joint enterprise.

There was no evidence that the plaintiff and her husband were engaged in a joint enterprise so that his lack of care would be imputed to her. The elements necessary to establish a joint undertaking were wanting. All that appears is that the husband and his wife were on a trip to Newton to spend the week-end with the plaintiff's sister. The fact that they were riding together for pleasure is not enough to establish a joint enterprise. As was said in Barry v. Harding, 244 Mass. 588, at pages 592, 593, 139 N. E. 298, 300: ‘the evidence does not warrant a finding that the plaintiff had an equal right with the driver in respect of the control of the automobile; * * * it does not warrant a finding that he had power to control the means, or an equal right to direct the conduct of the undertaking.’ Donoghue v. Holyoke Street Railway Co., 246 Mass. 485, 141 N. E. 278;Dumas v. Ward, 251 Mass. 497, 146 N. E. 709;Caron v. Lynn Sand & Stone Co. (Mass.) 170 N. E. 77.

[3] Sufficient instructions were not given to the jury as to the essential elements of a joint enterprise. In effect, they were told that if there was a joint enterprise the plaintiff could not recover. The jury could have found, if the followed the instructions, that the plaintiff...