Forrey v. Dedham Taxi, Inc.

• Decision Date: 30 January 1985
• Citation: 473 N.E.2d 726,19 Mass.App.Ct. 955
• Parties: Barbara FORREY v. DEDHAM TAXI, INC.
• Court: Appeals Court of Massachusetts

Page 726

473 N.E.2d 726

19 Mass.App.Ct. 955

Barbara FORREY v. DEDHAM TAXI, INC.

Appeals Court of Massachusetts Norfolk.

Submitted on Briefs Oct. 9, 1984.

Decided Jan. 30, 1985.

Albert Auburn, Wellesley, for plaintiff.

Francis J. Scannell, Boston, for defendant.

Before GRANT, CUTTER and PERRETTA, JJ.

RESCRIPT.

In awarding the plaintiff damages on her complaint against the defendant for negligence, the District Court judge found that as a result of the defendant's negligence, the plaintiff had sustained injuries for which she incurred reasonable and necessary medical expenses, in excess of $500, for her care and treatment. See G.L. c. 231, § 6D. At the trial in the Superior Court, upon the defendant's retransfer under G.L. c. 231, § 102C, the plaintiff introduced in evidence the District Court decision and, under G.L. c. 233, § 79G, certified copies of her medical bills in the amount of $680.00, as well as, by stipulation, additional medical and pharmaceutical bills in the amount of $198.00. She then rested. The defendant's only witness was the plaintiff, who testified to the nature of the injuries, the dates of her consultations with her attorney and doctors, and her loss of earnings.

When the defendant rested, the plaintiff requested that the jury be instructed that "there being no affirmative evidence that the bills were not necessary or reasonable, the finding of the [District Court] trial judge that the bills were fair and reasonable must stand." The trial judge refused to give the plaintiff's requested instruction, and when the jury found for the defendant, he denied the plaintiff's motions under Mass.R.Civ.P. 50(b) & 59, 365 Mass. 814-815, 827 (1974). The reason given by the trial judge for his various rulings is as follows: "The finding of the [D]istrict [C]ourt judge and the amount of damages were admissible as prima facie evidence. This entitled the plaintiff to go to the jury regardless of the state of the defendant's case. However, the jury was entitled to make its own determination of the facts required for deciding whether or not the plaintiff had sustained her burden of proof...."

1. Under G.L. c. 231, § 102C (as appearing in St.1978, c. 478, § 262), the effect of the District Court decision after retransfer to the Superior Court is that the decision is "prima facie evidence upon such matters as are put in issue by the pleadings." See Lubell v. First Natl. Stores, Inc., 342 Mass. 161, 163, 172 N.E.2d 689 (1961); Fulton v. Gauthier, 357 Mass. 116, 117-118, 256 N.E.2d 419 (1970). Unless the prima facie evidence is rebutted by evidence to the contrary, a verdict for the prevailing party at the District Court trial is required as matter of law. Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 566, 17 N.E.2d 890 (1938). Universal C.I.T. Credit Corp. v. Ingel, 347 Mass. 119, 125, 196 N.E.2d 847 (1964). O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

The defendant's case was insufficient to rebut the plaintiff's prima facie evidence. "It is settled that mere disbelief of testimony does not constitute evidence to the contrary, case lacking adequate affirmative proof is insufficient to support a verdict in favor of the party with the burden on the issue." Kunkel v. Alger, 10 Mass.App. 76, 86, 406 N.E.2d 402 (1980), and cases therein cited. See Methuen Constr. Co. v. J. & A. Builders, Inc., 4 Mass.App. 397, 401, 349 N.E.2d 357 (1976); Sylon Indus., Inc. v. Trim Knit, Inc., 13 Mass.App. 970, 971, 432 N.E.2d 533 (1982). Contrast Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786-787, 443 N.E.2d 1302 (1982). The plaintiff was entitled to the requested instruction. See Fulton v. Gauthier, 357 Mass. at 117-118, 256 N.E.2d 419; Garrity v. Valley View Nursing Home, Inc., 10 Mass.App. 822, 406 N.E.2d 423 (1980).

2. This case is before us on a report, under Mass.R.Civ.P. 64, 365 Mass. 831-832 (1974), in which the trial judge states: "If there was error in the Court's ruling on the plaintiff's requests for instructions to the jury or to the denial of the aforesaid motions, then it is agreed by all parties that judgment be entered for the plaintiff on the decision of the [D]istrict [C]ourt." The parties'...