Wheatley v. Peirce

Decision Date28 June 1968
Citation238 N.E.2d 858,354 Mass. 573
PartiesRobert E. WHEATLEY v. Thomas B. PEIRCE, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Timothy H. Donohue, Boston, for defendant.

Edward J. Barshak, Boston, for plaintiff.

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

KIRK, Justice.

In this action of tort for personal injuries in a single count alleging negligence in the operation of a motor vehicle the jury awarded damages to the plaintiff. The case is before us on the defendant's exceptions to the denial of his motion for a directed verdict, to the refusal to give requested instructions and to portions of the charge.

We summarize the evidence, all of which, so far as it relates to events preceding the accident, came from the defendant Peirce. On June 20, 1964, the plaintiff (Dr. Wheatley) and Peirece, theretofore strangers, were, with their wives, among the guests at a dinner party given by a third person at Marblehead. After dinner the two men discussed sports cars. Dr. Wheatley owned an eight cylinder Daimler. Peirce owned a four cylinder Alpine Sunbeam. Both cars were two seaters, were operated manually by floor shifts with clutches and had four speeds. Peirce told Dr. Wheatley that he had never seen a Daimler. Dr. Wheatley invited Peirce to drive his Daimler. Peirce accepted. Both men rode in the car. Peirce got behind the wheel and did all the driving. Peirce had been a resident of Marblehead for several years; he was familiar with the streets of the town and with the causeway which connects the mainland and Marblehead Neck. He drove through the narrow, winding streets of Old Marblehead going up and down hills. It is a congested area in which persons have difficulty driving all kinds of cars. Dr. Wheatley suggested that they go out to the causeway where they could drive faster. Peirce then drove across the causeway to Marblehead Neck as he had done many times before. At the end of the causeway he turned the Daimler around so that it was headed back toward Marblehead. The car was 'at a dead stop.' Peirce knew that at the other end of the causeway, about one-half or three-fourths of a mile away, there was a sharp curve, about a seventy degree turn bordered by a chain link fence. Peirce was unable to say how fast the car was traveling at any point on the cuaseway before the accident happened. He remembered nothing from the time he started back over the causeway to the point of the accident, except that in a conversation with Dr. Wheatley when they had just started up to return across the causeway, Dr. Wheatley said, 'open it up.' Peirce could not say what gear the car was in at that point. The Daimler was found upside down with the chain link fence wrapped around it. Dr. Wheatley was beneath the vehicle. On the roadway were two tracks of tire burn marks, 416 feet long, the right hand track three feet to the left of the painted double center line in the road. At the end of the burn marks in the direction of the mainland were solid brake marks thirty-one feet long. The posted speed was twenty-five miles an hour.

Dr. Wheatley's injuries resulted in a retrograde amnesia which deprived him of memory of all that took place from the time they left Old Marblehead until he regained consciousness at the hospital. It is not disputed that a finding of negligence was warranted.

1. Peirce's main contention is that on the evidence, he, as the defendant operator, owed to Dr. Wheatley as plaintiff owner and passenger, only the duty to refrain from gross negligence, and that since gross negligence was neither alleged nor proved he was entitled to a directed verdict. He asks us to hold that the judge's instruction that on the evidence Peirce owed to Dr. Wheatley the duty to exercise reasonable care was error.

We are aware of no case which deals with the proposition advanced by the defendant Peirce, and the diligence of counsel has produced none. 1 Accordingly, we deal with the contention as an original proposition.

In this Commonwealth an exemption from the standard of reasonable care which must generally be observed by one person to another has been made in favor of one who undertakes gratuitously to benefit another. Both the general rule and the exemption from it are common law developments. See Ruel v. Langelier, 299 Mass. 240, 242, 243, 12 N.E.2d 735. The exemption arises from the existence of a special relationship. Fone v. Elloian, 297 Mass. 139, 140--141, 7 N.E.2d 737. The exemption establishes that the duty, owed by one who enters upon a gratuitous undertaking for the benefit of another, is as to that other, only to refrain from gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 508, 118 N.E. 168, L.R.A.1918C, 264; Bagley v. Burkholder, 337 Mass. 246, 248 149 N.E.2d 143. Over...

To continue reading

Request your trial
11 cases
  • Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 10, 1972
    ...for Wheatley in the amount of $18,000. After exceptions taken by Peirce were overruled in the Supreme Judicial Court (Wheatley v. Peirce, 354 Mass. 573, 238 N.E.2d 858), Transamerica satisfied in full the execution issued against Peirce for $22,693.23 and also paid $2,453.67 for legal servi......
  • Evans v. Lorillard Tobacco Co., 042840A
    • United States
    • Massachusetts Superior Court
    • February 7, 2007
    ...the only duty owed is "the duty to refrain from gross negligence." Kolofsky v. Heath, 370 Mass. 856, 856 (1976), citing Wheatley v. Peirce, 354 Mass. 573, 576 (1968). negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care......
  • Goldsmith v. Marsh U.S. (In re GlassHouse Techs.)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • September 30, 2022
    ... ... 1983); see also Mass. Asset Fin. Corp. v. Harter, ... Secrest & Emery, LLP , 430 F.3d 59, 62 (1st Cir ... 2005) (citing Wheatley v. Peirce, 238 N.E.2d 858, ... 860 (Mass. 1968) ("A person undertaking a nongratuitous ... duty, such as one for pay, has a duty to ... ...
  • Massachusetts Asset v. Harter, Secrest, 04-2541.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 1, 2005
    ...A person undertaking a nongratuitous duty, such as one for pay, has a duty to refrain from ordinary negligence. Wheatley v. Peirce, 354 Mass. 573, 238 N.E.2d 858, 860 (1968). In contrast, a person undertaking a gratuitous duty must refrain only from gross negligence. Id. Therefore, in order......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT