370 Mass. 863

June 9, 1976

These are appeals under G. L. c. 278, Sections 33A-33G. The defendant was charged in indictment No. 86640 with assault and battery by means of a dangerous weapon, to wit, a knife (G. L. c. 265, Section 15A), and in indictment No. 87777 with assault with intent to commit murder while being armed (G. L. c. 265, Section 18). He was sentenced to the Massachusetts Correctional Institution at Walpole for a period of not more than eighteen years and not less than twelve years on indictment No. 87777, and received a concurrent sentence of not more than ten years and not less than seven and one-half years on indictment No. 86640. The defendant argues that the two indictments and subsequent convictions violated his rights under the double jeopardy clause of the United States Constitution by subjecting him to duplicitous punishment. He further argues that his motion to dismiss the indictments should have been allowed on the ground of unconstitutional, intentional underinclusion of women in the grand jury which returned the indictments. As to the double jeopardy issue, this case is on all fours with Salemme v. Commonwealth, ante, 421 (1976), decided this day. The two indictments, which allege crimes under the same two statues involved in the Salemme case (G. L. c. 265, Sections 15A, 18), are not identical and did not subject the defendant to duplicitous punishment. Salemme v. Commonwealth, supra. Further, even if the two offenses were shown to be identical, no prejudice could be shown because the sentences imposed were concurrent sentences. See Kuklis v. Commonwealth, 361 Mass. 302 , 309 (1972); Green v. United States, 274 F.2d 59, 61 (1st Cir. 1960); S. C. 365 U.S. 301, 306 (1961). Compare the Salemme case, where the sentences were consecutive. As to the assertion of error in the allegedly unconstitutional intentional underinclusion of women in the grand jury which indicted him, the defendant, a male, relies on Taylor v. Louisiana, 419 U.S. 522 (1975), but the rule of that case has been held by the Supreme Court "not to be applied retroactively, as a matter of federal law, to convictions obtained by juries empaneled prior to the date of that decision." Daniel v. Louisiana, 420 U.S. 31, 32 (1975). This court, with particular reference to grand juries, has followed the Daniel decision and has held that the Taylor decision was effective prospectively only. Brunson v. Commonwealth, 369 Mass. 106 (1975). There was no error.

Judgments affirmed.

Home LOTTIE PADUANO & others [Note 1] vs. GREGORY F. TEFFT.

370 Mass. 863

July 8, 1976

On August 13, 1970, the plaintiff and her three children for whom she brings suit were guest passengers in a car owned and operated by the defendant. The vehicle left the road, thereby causing each of the four personal injuries. At trial, the judge denied the defendant's motion for a directed verdict made at the close of all the evidence (Mass. R. Civ. P.

Page 864

50 [a], 365 Mass. 814 [1974]). The jury, responding by special verdict to questions put to them (Mass. R. Civ. P. 49 [a], 365 Mass. 812 [1974]), found that the defendant was not guilty of gross negligence; they were unable to agree whether he was guilty of ordinary negligence (although it is stipulated that there was evidence to support such a finding against him). The jury was discharged. On motion for judgment in accordance with the motion for a directed verdict (Mass. R. Civ. P. 50 [b], 365 Mass. 814 [1974]), the judge directed entry of judgment for the defendant, applying the traditional rule of law that the standard of duty toward a guest passenger, as distinguished from a passenger for hire, was that of refraining from gross negligence. Wheatley v. Peirce, 354 Mass. 573 , 576 (1968). The plaintiff took her appeal to the Appeals Court and we transferred the case here. In Kolofsky v. Heath, ante, 856 (1976), we held that the legislation abolishing the Wheatley rule and introducing a standard of ordinary negligence as to guest passengers (G. L. c. 231, Section 85L, inserted by St. 1971, c. 865, Section 1) applied only to causes of action arising after January 1, 1972 (see c. 865, Section 2). The plaintiff-appellant in the present case advances an argument not made in the Kolofsky case, namely, that the principle of Mounsey v. Ellard, 363 Mass. 693 (1973), eliminating the old distinction between licensees and invitees for purposes of actions to enforce a landlord's duty of care, should extend also to efface the distinction between guest passengers and passengers for hire in actions to enforce an operator's duty of care; and should, moreover, be given retroactive effect under Bouchard v. DeGagne, 368 Mass. 45 (1975). We refrain from entering on a discussion of the relevance, or lack of it, of the Mounsey principle to the field of motor vehicle torts, since we believe that the language of the legislation (St. 1971, c. 865, Section 2) -- "This act shall take effect on January the first, nineteen hundred and seventy-two and shall apply only to causes of action arising after said date" -- is to be read as assuming and confirming the existence of the traditional rule of the Wheatley case and changing it only as from January 1, 1972. This excludes any possibility that might otherwise exist for bringing the Mounsey principle to bear on a case like the present where the accident antedated the January 1, 1972, deadline. Cf. Higgins v. Emerson Hosp., 367 Mass. 714 , 715 (1975); Carpenter v. Suffolk Franklin Sav. Bank, ante, 314, 327 (1976); Piotti v. Commonwealth, ante, 386, 387-388 (1976).

Judgment affirmed.


[Note 1] Raymond, Lisa, and Christina Bernier.