Ferreira v. Franco

• Decision Date: 25 November 1930
• Citation: 273 Mass. 272,173 N.E. 529
• Parties: FERREIRA v. FRANCO et al. (seven cases). DIAS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 272

173 N.E. 529

FERREIRA

v.FRANCO et al. (seven cases).

DIAS

v.SAME.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 25, 1930.

Exceptions from Superior Court, Bristol County; N. P. Brown, Judge.

Separate actions by Anthony S. Ferreira, by Mary S. Ferreira, by Dolanda S. Ferreira, by Joseph S. Ferreira, by Manuel S. Ferreira, Jr., by Frank S. Ferreira, Jr., by Frank Dias, administrator, and by Sara S. Ferreira, by their next friends, against Jose Franco and others. Defendants' motions for directed verdicts were denied, and verdicts rendered for plaintiffs, and defendants bring exceptions.

Exceptions overruled.

J. W. Nugent, of Fall River, for plaintiffs.

S. E. Bentley, of New Bedford, for defendants.

FIELD, J.

These are eight actions of tort brought by children, ranging from two to fourteen years of age, by their next friends, to recover damages for personal injuries. (One case is now being prosecuted by the administrator of the original plaintiff.) On July 4, 1928, a wagon in which these children were sitting was struck by a motor truck then being operated on a public highway. The wagon was upset and the children were thrown out and injured. The cases were tried in May, 1930. The defendants made motions for directed verdicts which were denied and there was verdicts for the plaintiffs. The cases come before us on the exceptions of the defendants to the denial of these motions and to the admission of evidence.

The bill of exceptions states: ‘The negligent operation of the truck and the due care of the plaintiffs was conceded. No question arises as to the pleadings. It was admitted by the defendants that at the time of the accident one Manuel Coelho an employee of the defendants was operating the automobile truck and that the automobile was owned by the defendants and registered in their names at the time of the accident.’

[4] The motions for directed verdicts were denied rightly. The only question at issue was whether the defendants were legally responsible for the conduct of Manuel Coelho, who was operating their truck at the time of the accident. As the trial took place after September 1, 1928, section 85A, added to G. L. c. 231 by St. 1928, c. 317, § 1, was applicable; see section 3. Smith v. Freedman, 268 Mass. 38, 167 N. E. 335.Wilson v. Grace, 266 Mass. --, 173 N. E. 524. The defendants set up in the answer in each case, as an affirmative defense, the absence of such responsibility. By force of the statute, the defendants' admission that at the time of the accident the motor truck was owned by them, registered in their names and operated by Coelho, was prima facie evidence that they were legally responsible for his conduct, and the burden of proving the contrary rested upon them. They introduced evidence tending to show that Coelho had no license to operate motor vehicles, and that when the accident occurred, though he was their employee, he was not acting within the scope of his employment. If believed, this...