The evidence, taken most favorably for the plaintiff, could be found to establish the following facts. On the seventh day of May, 1933, the defendant Miltimore was in the employ of the defendant company as an automobile-salesman in Milford, New Hampshire, wherе he resided. At the direction of the company he that day drоve one of the company’s cars into the Commonwealth of Massachusetts, in an attempt to locate a prоspective customer. Pursuant to standing permission from the company, Miltimore *273 took along as guest-passengers his wife (the plaintiff) and their two children.
The Miltimores had the intention, after interviewing the customer, of proceeding to Boston and leaving оne of the children there. But before they undertook this enterрrise, and while Miltimore was still driving the automobile in Massachusetts in the сourse of his employment for the company in search of the customer, Miltimore felt drowsy, but continued to drive and fell asleep. In consequence the car went out of contrоl, crossed the middle line of the highway and collided with another car. As a result the plaintiff suffered the injuries complained of. She herself was asleep at the moment of the collision, and she had been sleeping without knowledge of what was going on during the last half-mile or so of the progress of the defendant’s car.
The plaintiff and her husband took their marital status into the Commonwеalth of Massachusetts, but “the incidents of that status are those prescribed by the law of the place where the transaсtions take place.” Though by the law of the forum the wife’s incapacity to recover for the tort of her husband has beеn abolished, the lex loci delicti must determine her right to recover in the present action against her husband. Gray v. Gray, 87 N. H. 82. Since that law does not permit her to recover from her husband (Lubowitz v. Taines, 198 N. E. Rep. 320), a verdict was properly directed for the defendant Miltimore.
However, the law оf Massachusetts permits the wife to recover from her husband’s еmployer in such case, even though she cannot recоver from her husband. Pittsley v. David, 11 N. E. Rep. (2d), 461. Upon the authority of the case just сited, the plaintiff cannot rely upon her husband’s breach of the law of the road, but is restricted to her claim that he was grossly negligent. The question of the sufficiency of the evidence to wаrrant a finding of gross negligence was neither briefed nor argued. The defendant having waived it, we do not consider it. Sunapee Dam Corporation v. Alexander, 87 N. H. 397, 403.
The defendant has not, however, waived the question of the plaintiff’s contributory nеgligence. The mere fact that the plaintiff went to sleeр does not bar recovery.
Button
v.
Crowley,
Judgment for the defendant Miltimore: new trial as to the defendant corporation.