Home DENISE GRIFFIN & another vs. AMERICAN MOBILE CORPORATION & another.

359 Mass. 758

June 4, 1971

The plaintiffs, Denise Griffin, a minor, and her mother, Mary C. Lepore, brought this action of tort against the defendants, American Mobile Corporation, and its employee, David Gleitsman. After the close of the evidence the trial judge, subject to the plaintiffs' exceptions, directed verdicts for the defendants. The evidence most favorable to the plaintiffs is summarized: Gleitsman operated an ice cream truck owned by American Mobile Corporation. On the day of the accident, five or six teen-age friends of Gleitsman helped him load the truck and they accompanied him on his route as they had on other occasions. The minor plaintiff and other youngsters purchased ice cream being sold from the truck by Gleitsman's friends while he remained in the driver's seat. Denise observed the boys engaging in "horseplay" inside the truck when it arrived. Upon completion of sales the operator called out from the driver's seat and asked if anyone wanted a ride. Denise accepted the invitation. Although she had never been on the truck before she had observed others riding on the truck. Accompanied by a friend she sat in the truck on the "window shelf" with her legs dangling outside the vehicle. The boys inside the truck called them names and one of them pushed the plaintiff from the moving truck which by then had moved a distance of about twenty-five to thirty feet and had reached a speed of about five miles an hour. Gleitsman stopped the truck within five to ten feet. The plaintiffs concede that Denise Griffin was a gratuitous guest on the defendant's truck. In these circumstances the defendants were liable only for gross negligence. There was no evidence of gross negligence by the defendants. Bagley v. Burkholder, 337 Mass. 246 , 248. Motta v. Mello, 338 Mass. 170 , 172. Moreover, the plaintiffs did not establish that Gleitsman had authority to invite persons such as the minor plaintiff to ride on the vehicle, O'Leary v. Fash, 245 Mass. 123 ; Falden v. Crook, 342 Mass. 173 , 176-177 (child thrown from ice cream truck), or that the boys on the truck were the agents of the defendant American Mobile Corporation. Hollidge v. Duncan, 199 Mass. 121 , relied on by the plaintiffs, is not applicable. The judge correctly directed verdicts for the defendants.

Exceptions overruled.

Home COMMONWEALTH vs. CHRISTOPHER J. DAVIS.

359 Mass. 758

June 4, 1971

The defendant appeals under G. L. c. 278, Sections 33A-33G, from convictions by a jury on charges of assault with a dangerous weapon and carrying a pistol in an automobile without a license to do so, in violation of G. L. c. 269, Section 10. A third conviction was placed on file without sentence, and the appeal from that conviction is not properly before us. Commonwealth v. Locke, 338 Mass. 682 , 684. Commonwealth v. Cosolito, ante, 467, 469. Any assignments not expressly waived, but not argued, are deemed waived. Commonwealth v. Foley, 358 Mass. 233 . The defendant assigns as error the placing of the burden on him to prove that he was licensed or authorized to carry a pistol and argues that this is "inconsistent with Massachusetts cases and statutes . . . and contravenes his basic rights." However, this is the very procedure established by G. L. c. 278, Section 7, and we do not believe it is unconstitutional. Commonwealth v. McCarty, 141 Mass. 420 , 422. Commonwealth v. Nickerson, 236 Mass. 281 , 305. Commonwealth v. Dzewiacin, 252 Mass. 126 , 130-131. General Laws c. 269, Section 10, prescribes certain inherently dangerous acts, and G. L. c. 278, Section 7, allows the defendant to show that his conduct is within an exception to the proscription. Commonwealth v. Nickerson, supra. The defendant also

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argues that the trial judge erred by denying counsel permission to handle a pistol, clip, and cartridge casing introduced as exhibits at the trial and by making certain comments concerning the handling of the pistol in the court room. The record shows no abuse of discretion by the judge, who explained the need to exercise caution in a crowded court room. The defendant's counsel was afforded sufficient opportunity to inspect the objects in question and was given the opportunity to cross-examine the officer who had seized the pistol and the ballistics expert who examined it. The comments to which the defendant took exception appear to us to be inconsequential and were not prejudicial. Commonwealth v. Mele, 358 Mass. 225 , 230. There was no error.

Judgments affirmed.