Woods v. Woods

• Decision Date: 09 September 1936
• Parties: WOODS v. WOODS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 238

3 N.E.2d 837

WOODS v. WOODS.

Supreme Judicial Court of Massachusetts, Middlesex.

September 9, 1936

Action of tort by George William Woods against Frank H. Woods. From an order dismissing a report after a finding for defendant plaintiff appeals.

Affirmed.

Appeal from First District Court of Northern Middlesex; Clark, Judge.

S Abrams and W. J. Good, both of Boston, for appellant.

F. C. Haigis, of Boston, for appellee.

CROSBY, Justice.

This is an action to recover for personal injuries. The declaration is in three counts, all for the same cause of action The first count alleges that the plaintiff was a passenger for hire and was injured by negligence of the defendant; the second count alleges that the plaintiff at the time of the injury was a passenger on the defendant's truck, that he was employed by and on the business of one George H. Woods, that he was rightfully on the truck while it was being used and operated by the defendant in carrying on the business of said George H. Woods, and that he sustained personal injuries due to the negligence of the defendant; the third count alleges gross negligence on the part of the defendant. The answer of the defendant was a general denial and contributory negligence.

The trial judge found the following facts: The plaintiff and the defendant are brothers. The truck above referred to was owned and operated by the defendant. On March 31, 1934, the plaintiff, the defendant, their brother Russell, two sisters and George A. Gilson were assisting George H. Woods, the father of the plaintiff and defendant, in moving his household furniture and effects from the house then occupied by him to a tenement in the same town of Groton in this commonwealth. On this day the defendant worked all day, and the plaintiff began work between two and three o'clock in the afternoon. The plaintiff received his injuries while he was riding in a standing position on the platform of the truck. As the truck approached a place called the Legion Bungalow it left the macadam and went onto the dirt shoulder on the right side of the road at a point about forty feet from an electric light pole, at or near the bungalow and placed about eleven feet from the edge of the macadam, onto the land abutting the shoulder, and then hit or grazed the pole. It then went about one hundred feet and came to a stop. At or about the time the truck struck the pole, the plaintiff received a blow or impact severe enough to cause a black and blue area to appear on his right side between his hip and shoulder, and also a fracture of his right pelvis bone. During this trip the plaintiff was holding on to a hand-rack on the back of the cab with his right hand, and his right arm extended through the branches of a five foot fir tree to support it. With his left arm and hand he endeavored to support a radio set about five ffet high, which, about the time of the contact with the pole, fell striking the plaintiff and causing the injuries for which he seeks recovery. When the truck came to a stop the plaintiff told the defendant he was badly hurt. A doctor was called who found that the plaintiff's injury was a broken pelvis bone and injury to the ligaments. The defendant was sitting in the cab operating the truck. As he was approaching the pole above referred to, he met a truck coming in the opposite direction and he then drove to his right off the macadam onto the dirt shoulder. After the truck passed the defendant was overtaken by a passenger car which passed on his left near the pole above referred to. His right forward and rear wheels got off the dirt shoulder onto the abutting land, which was about a foot lower than the surface of the road, and they left a rut about three feet from the base of the pole. The judge stated that the testimony as to the speed of the defendant's truck was conflicting, witnesses called by the defendant placing it ‘ at around 15-20 miles per hour and the plaintiff placing it around 25-30 per hour at least.’ He found that the speed was between these estimates, and that the defendant applied his brakes as he approached the pole. He stated that upon conflicting testimony he was unable to find that the defendant was drunk at the time in question, or was driving his truck while under the influence of intoxicating liquor.

It is further recited in the judge's findings that there was no negligence of the plaintiff that contributed to his injuries; that ‘ As to the legal relation of the plaintiff to the defendant under the circumstances in question, I find they were then both engaged, with others, in the moving of their father's furniture and effects to his new place of residence’ ; that the father is eighty years of age and infirm; that the defendant, his brother Russell, his two sisters and George A. Gilson were not employed by the father ‘ for the purpose and all worked at the time without wish or expectation of compensation’ ; that the plaintiff claimed to be working for compensation, but the father denied that he was so working; that the defendant did not employ the plaintiff and there was accordingly no relation of master and servant between them.‘ I find that he impliedly, if not expressly, invited the plaintiff to ride gratis on the truck * * * in order to assist in transporting the load but without hiring the plaintiff to do so; and that such moving was done for the intended benefit of their father rather than that of the defendant.’ The judge found that the total damages sustained by the plaintiff, including his expense, loss of wages and suffering amount to $2,500.

In conclusion the judge made the following findings: ‘ The defendant's operation of the truck was faulty and he was negligent in the premises, especially in driving onto the dirt shoulder and abuting land at excessive speed. The defendant's negligence was ordinary in kind, not gross negligence. The plaintiff was not guilty of any contributory negligence in the premises; and he did not control, or have control of, the operation of the truck in question. The plaintiff, while riding on the defendant's truck, had the status of a guest riding gratuitously on the defendant's invitation therefor, express or implied * * * the plaintiff was not riding either as an agent, employee, or servant of the defendant or as a passenger for hire of the defendant. The defendant furnished the use of his truck and his own services for the purpose of moving his father's furniture without expectancy, or right, or compensation.’

The plaintiff claimed a report upon two rulings made by the judge during the course of the trial. An examination of these rulings fails to show any error.

The judge ruled upon certain requests presented by the plaintiff and by the defendant. They need not be considered separately. They have all been examined and we find no error by reason of the manner in which they were dealt with by the judge.

The judge made the following order: ‘ Judgment to be entered for the defendant when the...