(ON REHEARING.) I see no reason for receding from the position taken in the former opinion. Plaintiff was at her home. Mrs. McCoy had been in a hospital. She was being taken to the home of Mrs. Dupuis. She wanted plaintiff to come to take care of her. She sent her son to plaintiff's home to get her. When plaintiff came with him she came to Mrs. Dupuis' where defendant's wife was. Afterward Mrs. McCoy was removed to her own home and plaintiff went there to take care of her. When her services were completed she was paid and defendant started to take her home. In doing so he traversed the same route, as far as he went, plaintiff had traveled in coming to his home. She went back to Mrs. Dupuis where plaintiff was first brought and where she had left some of her clothing, and where she cared for Mrs. McCoy, and from there started to take plaintiff home. On this trip the accident occurred.
It is claimed plaintiff was a guest. If so, then in every case where one is taking a hired girl home she is a guest, and not an employee. Plaintiff was not a guest within the holdings of the court in Lyttle v. Monto, 248 Mass. 340 (142 N.E. 795);Loftus v. Pelletier, 223 Mass. 63 (111 N.E. 712); Jackson v.Queen, 257 Mass. 515 (154 N.E. 78); Kruy v. Smith,108 Conn. 628 (144 A. 304); Russell v. Parlee, 115 Conn. 687 (163 A. 404); Smith v. Fall River Joint Union High SchoolDistrict, 118 Cal.App. 673 (5 Pac. [2d] 930).
In the first case it was held that a boy asked by the driver of a truck to show him the way was not his guest; in the second, that a nurse going with a doctor to care for an indigent patient was not a *Page 701 guest; in the third, that a purchaser of merchandise riding in a truck at seller's request to show the driver the place of delivery was not a guest; in the fourth where a woman was engaged in doing housework and was injured while being driven to defendant's home for that occupation, it was said:
"The legislature when it used the word 'guest' did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or owner of the car."
Substantially the same rule was followed in Russell v.Parlee, supra. Going and getting plaintiff and returning her to her home were a part of the terms of employment as shown by the testimony and by acts of the parties. She was sent for by defendant and was being taken home by defendant when the accident occurred. Bringing her and taking her back were part of an arrangement for her employment — part of the consideration for her coming to work — was a benefit, real or supposed, both to herself and to her employer; and where the employer is being benefited by one taking a journey to work or from work, the employee cannot be called a guest or gratuitous passenger. Plaintiff was being transported for the mutual benefit of herself and the defendant and was not a guest. I am unable to distinguish this case, in principle, from Kruy v.Smith, supra.
Judgment reversed, with costs and new trial ordered.
FEAD, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with POTTER, J.