LEE POSNER & another vs. N. BENJAMIN MINSKY, executor.

SPIEGEL, J. This is an action of tort for personal injuries sustained by Lee Posner (hereinafter called the plaintiff) as a result of a motor vehicle accident. The declaration is in four counts. Count 1 is based on gross negligence; count 3 on ordinary negligence. In counts 2 and 4, Joseph Posner, the plaintiff's husband, seeks consequential damages. These counts are likewise based on gross negligence and ordinary negligence, respectively. The plaintiff was a passenger in a car driven by the defendant's testatrix.

The case was referred to an auditor, who found for the defendant on each of the counts. Subsequently, the case was tried to a jury on the auditor's report and other evidence. The jury returned verdicts for the defendant on all counts. The case is here on the exceptions of the plaintiffs and of the defendant.

We summarize the evidence most favorable to the plaintiffs. On February 23, 1961, the defendant's testatrix, Mrs. Sophie Minsky, wanted to drive from her home in Pittsfield to attend a flower show in Springfield. She telephoned the plaintiff, who was a friend of hers, and stated that she had "misplaced" her license and was unable to find it. She asked the plaintiff to "come and ride" with her to the show so that Mrs. Minsky could drive on the plaintiff's license. The plaintiff was busy baking but Mrs. Minsky "talk[ed her] into" going. Mrs. Minsky called for the plaintiff at 10:30 A.M. and they began the trip to Springfield.

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Mrs. Minsky was driving. The weather was rainy and foggy when they entered the Massachusetts Turnpike at the Lee Interchange. The posted speed limit had been reduced from sixty to thirty miles an hour. After traveling about forty miles Mrs. Minsky brought the car to a stop "in the middle of the road." The plaintiff remonstrated and said, "Don't stop here. This is too foggy. . . . We get killed." "Cars going [to] bump you." A few minutes later the car was struck in the rear by a large trailer truck. Mrs. Minsky died as a result of the accident and the plaintiff was severely injured.

I. THE PLAINTIFFS' EXCEPTIONS.

The plaintiffs contend that the trial judge "erroneously instructed the jury that in order for the defendant to be liable to the plaintiffs for ordinary negligence, the plaintiff had to confer an actual benefit on the defendant's testatrix, even though the plaintiff believed she was conferring the benefit requested by the defendant's testatrix."

In the original charge, to which no exceptions were taken, the jury were correctly instructed in regard to the plaintiff's status as a passenger.

After the jury had retired and deliberated for some time, the jury requested further instructions as to the definition of "benefit," the degree of benefit necessary, and the degree to which the conferring of a benefit must have been the motive for Mrs. Posner's riding as a passenger. The judge again correctly charged the jury, and no exception was taken.

After further deliberation, the jury asked the following question: "Must the benefit be actually performed by the plaintiff or does the mere thought that she was performing a benefit suffice according to law?" (We note that there was evidence that after the accident Mrs. Minsky was taken to a hospital and that a valid driver's license was found in her wallet.) The judge then instructed the jury as follows: "Well, there has to be a benefit conferred on the defendant by the plaintiff. Actually conferred. If you go out with a

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friend and you think you are doing her a favor and you're not really doing it -- that isn't enough. The benefit has to be conferred in order to make it a benefit being conferred." To this instruction the plaintiffs excepted. After a brief period of time, the jury returned the verdicts for the defendant.

There was evidence from which the jury could infer that Mrs. Minsky, perhaps unknowingly, had her driver's license with her at the time of the accident. If such an inference were drawn, under the rule of law enunciated in the judge's answer to the last question it would follow that because the plaintiff actually conferred no benefit upon Mrs. Minsky the plaintiff could not recover for Mrs. Minsky's ordinary negligence. A guest in an automobile is not owed a duty of due care by his host, and cannot recover for injuries due to ordinary negligence. Massaletti v. Fitzroy, 228 Mass. 487. However, where a passenger travels in an automobile in order to confer a benefit upon a host, the passenger may recover for ordinary negligence. Taylor v. Goldstein, 329 Mass. 161, 164-165, and cases cited. It has been held that one riding in order to furnish the driver with the protection of one's license to drive is conferring such a benefit, and the driver is liable for ordinary negligence. Semons v. Towns, 285 Mass. 96, 100. In the case at bar, there was evidence from which the jury could find that the plaintiff rode with Mrs. Minsky on the mutual understanding that she was conferring a similar benefit. We can find no case in which an identical question is raised. The weight of the case law, however, indicates that it is the state of mind of the passenger and host, and not the actual conferring of a benefit, that is determinative. The question is one of status, often put in terms of whether the passenger has the status of an invitee, an analogy from the law governing the liability of landowners. See Taylor v. Goldstein, 329 Mass. 161, 164; Falden v. Crook, 342 Mass. 173, 175; Tomaino v. Newman, 348 Mass. 433, 436. The status of a business invitee is determined by the purpose for which the premises are entered and the expectations of both host and invitee as to the purposes

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of the visit. See Plummer v. Dill, 156 Mass. 426, 427. If by some fortuity not contemplated by the parties, the purpose of a business visit is frustrated, the status of a business invitee for tort recovery purposes would not be affected. We are of opinion that the workings of the "benefit" rule in automobile accident cases must proceed on a similar footing. In the instant case, to say that the plaintiff's status as an invitee in the automobile is affected by Mrs. Minsky's unknowing possession of her license is to ignore the consensual origin of that status. The judge's answer to the jury's last question misstated the law.

"A charge is to be considered as a whole in order to determine whether it is legally correct, rather than tested by fragments." Lockwood v. Boston Elev. Ry. 200 Mass. 537, 544. The defendant contends that the jury were correctly guided by earlier instructions. A reading of the whole charge, however, convinces us that the judge did not instruct the jury in regard to the precise issue raised by the jury's final question except in his answer to that question.

We deal with the remaining exceptions, since the same problems may arise at a new trial. At the trial, the defendant called Posner, the male plaintiff, and examined him in regard to another action begun in the United States District Court by the plaintiffs against other parties, including the driver of the trailer truck. The following questions and answers were admitted over the plaintiffs' objections. COUNSEL FOR THE DEFENDANT: "Have you been examined before trial by any of the lawyers in that case?" THE JUDGE: "I take it this is offered . . . for the reason of finding out if he has, then testing his credibility and only for that reason at the moment?" COUNSEL FOR THE DEFENDANT: "That is all -- at the moment." THE WITNESS: ". . . No, I have not." COUNSEL FOR THE DEFENDANT: "You have not? Did you in preparing for that trial tell your attorney that the motor vehicle in which your wife was a passenger was parked on the extreme right side of Massachusetts Turnpike Authority in the east bound lane?" THE WITNESS: "It was my wife and I both -- you see, I had

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to -- my wife had to tell me the information." COUNSEL FOR THE DEFENDANT: "Let me try it this way for a minute. Did your wife say that you, in turn, tell your attorney, is that what you are getting at?" THE WITNESS: "She had to tell me then I told them."

The plaintiffs argue that the defendant sought to introduce evidence of the pendency of another action solely to prejudice the plaintiffs' case before the jury. They attack the admission of this line of testimony on the grounds that the complaint itself could not have been introduced, and that there was no prior inconsistent testimony of either plaintiff. It is apparent from the record, however, that the inquiries into the existence of an action in the Federal Court were preliminary questions preparatory to subsequent interrogation regarding possible admissions, which could have refuted previous testimony. No attempt was made to introduce the pleadings. See Jennings v. Bragdon, 289 Mass. 595, 598. In addition, the judge restricted the purpose of the cross-examination by stating that the questions were admitted solely on the issue of credibility. He also instructed the jury to disregard the case pending in the Federal Court. [Note 1] The position of the vehicle was a question of importance in the case. The plaintiff had testified first that the car was stopped "in the middle of the road," and then that "I don't remember anything -- exactly." The examination of Posner indicated that the plaintiff had transmitted another version of the car's position through him to their attorney. The scope of inquiry into matters testing the accuracy, veracity, and credibility of a witness rests largely in the sound discretion of the judge. Commonwealth v. Makarewicz, 333 Mass. 575, 593, and cases cited. We cannot say that the judge abused his discretion.

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II. THE DEFENDANT'S EXCEPTIONS.

The defendant excepted to the judge's denial of his motion to strike portions of the report of the auditor. The portions objected to were the auditor's conclusions that the defendant's testatrix was negligent, although not grossly negligent. The defendant maintains that these findings were not supported by the subsidiary findings of the auditor. These findings in essence paralleled the plaintiffs' version of the events, except for the auditor's finding that the accident occurred in the emergency lane. We are satisfied that the subsidiary findings supported the conclusions of the auditor.

The defendant also excepted to the admission in evidence of a pamphlet entitled "Rules and Regulations for the Use of the Massachusetts Turnpike Authority." He argues that the provisions of G. L. c. 233, Section 75, as amended through St. 1943, c. 190, Section 1, [Note 2] do not authorize its admission because the Massachusetts Turnpike Authority is not a "department, commission, board or officer" of the Commonwealth, but "has an existence separate and apart from that of the Commonwealth." There is no question that the Authority is a creature of the Commonwealth, and indeed it has been likened to a municipal corporation for some purposes. Massachusetts Turnpike Authy. v. Commonwealth, 347 Mass. 524. We see no reason to treat the Authority, which is "a public instrumentality performing an essential governmental function," supra, at 525, differently for the purposes of G. L. c. 233, Section 75. There was no error.

The defendant also claims error in the judge's denial of a motion to direct a verdict for the defendant on each of the counts. He contends that "the evidence did not warrant a finding that the acts or omissions of the defendant's testatrix constituted gross negligence or that such acts or omissions were the legal cause of injury or damage to the plaintiffs." We do not agree. We are of opinion that there was evidence

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which would warrant the jury in so finding. Whether conduct amounts to gross negligence must be decided according to the peculiar features of each case. Bruno v. Donahue, 305 Mass. 30, 34.

It necessarily follows that there was likewise no error in denying the defendant's motion for directed verdicts on the counts for ordinary negligence.

The plaintiffs' exceptions as to counts 1 and 2 are overruled. The plaintiffs' exceptions as to counts 3 and 4 are sustained and the new trial is to be confined to counts 3 and 4. The defendant's exceptions are overruled.

So ordered.