312 Mass. 628 | Mass. | 1942
This action of tort to recover compensation for personal injuries comes before us on the defendant’s appeal from an order of the Appellate Division dismissing the report of the judge.
There was evidence that on October 4, 1941, the defendant drove his automobile to the plaintiff’s home where the latter and his wife entered the vehicle. By prearrangement, they and the defendant were to attend a beano party, to be held in Eagles Lodge Hall on West Street, Haverhill. It was the intention of all three “to attend the beano game in the afternoon, have supper together, and then to go home in the defendant’s car. It was a social occasion. Each . . . was to pay his own cost for playing beano and eating supper.” Arriving at a parking area on West Street adjacent to the “Lodge Hall,” the defendant started to park his vehicle in a space between two other parked automobiles. He had some difficulty in so doing and “went
The judge granted all of the plaintiff’s requests for rulings to the effect, so far as here material, that the “host and guest relationship between the plaintiff and the defendant had ceased at the time of the accident.” He denied the requests of the defendant, in substance, that at the time of the plaintiff’s injury the relationship just referred to had not ceased, and that the “plaintiff cannot recover unless on proof of gross negligence.” The judge granted the defendant’s request for a ruling that' as matter of law there was “no evidence that the defendant was guilty of gross negligence.” In connection with his action upon the requested rulings, the judge found certain of the facts hereinbefore set forth as disclosed by the evidence and further found that in “the act of turning the front wheels of . . . [the] automobile, the defendant’s foot slipped from the brake pedal to the accelerator,” thus causing the automobile to bound forward and injure the plaintiff. The judge also found that the “gratuitous undertaking, which the defendant assumed, ended when the plaintiff got out of the automobile at . . . [the] parking area,” that the defendant was negligent, that the plaintiff was in the exercise of due care at the time of the accident, and found for the plaintiff.
The decisive question is whether at the time of the accident the plaintiff was a mere guest, in which event the defendant would not be liable in the absence of gross negligence; or whether that relationship had ceased, in which
In the instant case the evidence discloses that there was a definite arrangement, entirely gratuitous, to transport the plaintiff and his wife to the hall in question; that they and the defendant were to attend the beano game, have supper, and thereafter the plaintiff and his wife were to be driven home by the defendant in his automobile. It would seem obvious that the parking of the automobile was necessarily incidental to the accomplishment of the gratuitous undertaking, in order to carry out its prearranged purpose. Head v. Morton, 302 Mass. 273. Donahue v. Kelley, 306 Mass. 511. Ethier v. Audette, 307 Mass. 111. The case of Fone V. Elloian, 297 Mass. 139, relied upon by the plaintiff, is distinguishable on the facts. In that case the outward journey to a pond had been completed, the truck involved had been parked for ten minutes after its arrival, and “Everyone [had] got off ... no further journey was immediately contemplated . . . [and] The plaintiff was free to go where he chose and to do as he wished.” (Pages 139-140.) In the present case the outward journey had not been ended, the automobile had not been parked, and the gratuitous undertaking had not been completed in an essential part. The action of the judge in granting the plaintiff’s requested rulings, that the relationship of host and guest between the parties had ceased at the time of the accident and that proof of gross negligence was not essential to recovery, and in
Order of the Appellate Division reversed.
Judgment to he entered for the defendant.
