Karpowicz v. Manasas

• Citation: 275 Mass. 413,176 N.E. 497
• Parties: KARPOWICZ v. MANASAS (two cases). SAME v. SEDER (two cases.)
• Decision Date: 03 June 1931
• Court: United States State Supreme Judicial Court of Massachusetts

275 Mass. 413

176 N.E. 497

KARPOWICZ

v.MANASAS (two cases).

SAME

v.SEDER (two cases.)

Supreme Judicial Court of Massachusetts, Worcester.

June 3, 1931.

Exceptions from Superior Court, Worcester County; Raoul H. Beaudeau, Judge.

Two separate actions by Mary Karpowicz, p. p. a., against Edward J. Manasas, and against Esther K. Seder, and two separate actions by George Karpowicz against the same defendants. The cases were tried together. Verdict for plaintiff in each action. On defendants' exceptions.

Exceptions sustained.James C. Donnelly, of Worcester, for plaintiffs.

S. A. Seder and S. Lurier, both of Worcester, for defendants.

SANDERSON, J.

Two of these actions are by Mary Karpowicz, a minor, to recover for injuries received on March 15, 1928, caused by the alleged negligence of the defendant Edward J. Manasas, the driver of the automobile owned by the defendant Seder. The actions of George Karpowicz are for consequential damages resulting from the injuries received by his daughter, Mary Karpowicz. The four actions, begun in 1929, were tried together. The bill of exceptions states that there was evidence which would warrant the jury in finding that Edward J. Manasas, the operator of the automobile, was negligent. The defendant Seder admitted that the automobile involved in the accident was owned by her and that Manasas was in her employ as a chauffeur.

The plaintiff Mary Karpowicz testified, in substance, that, when about to cross the street, on which she had been walking, she looked both ways and saw no automobile; that after leaving the curb she looked in one direction and saw no automobile and then looked in the other and saw the automobile in question far enough away so that she thought she could cross the street to go home; that, when about a third of the distance across, she suddenly heard the noise of the automobile and thought at first she would run bank because she thought there would be ‘a chance’ and she started back, taking three or four steps, and when very close to the curb she was hit; she heard no horn but only the noise of the approaching automobile. The evidence tended to prove that the accident occurred close to the curbing on the left side of the street in the direction in which the automobile was being driven.

At the close of the plaintiffs' evidence the defendant Seder rested in the case of Mary Karpowicz and presented a motion for a directed verdict in that case. Her exception was saved to the denial of this motion. She also presented a similar motion in the case of George Karpowicz but apparently without resting. She gained no rights by the denial of the latter motion. Goodell v. Sviokcla, 262 Mass. 317, 318, 159 N. E. 728. The record states that the ‘defendants, Edward J. Manasas and Egnas J. Manasas, continued by evidence being presented on their behalf.’ At the close of all the evidence a motion for a directed verdict was made in each case where Manasas was named as defendant, and each motion was denied subject to the exception of the defendant. The motion for a directed verdict in the case of George Karpowicz against Seder was not renewed at the close of the evidence. The motions for directed verdicts in so far as they were based upon the contention that no recovery can be had because the injured plaintiff was not in the exercise of due care must be overruled. Upon her own statement of the occurrence the question whether the defendants had maintained the burden of proving her contributory negligence was for the jury. O'Connell v. McKeown (Mass.) 170 N. E. 402.

One of the principal contentions of the defendant Seder seems to be that St. 1928, c. 317, § 1, does not apply in either case against her, because in that of Mary Karpowicz there was no evidence that the automobile was registered in her name, and in the case of George Karpowicz the action is for consequential damages. In Wilson v. Grace, 173 N. E. 524, this court decided that an action for consequential damages does not come within the terms of the statute. The plaintiff George Karpowicz concedes that in his case against Seder the trial judge erred in ruling that because of this statute the burden was on the defendant to prove that the automobile was not being operated at the time of the accident by a person for whose acts she was legally responsible. The terms of the statute in so far as material are: ‘In all actions to recover damages for injuries to the person * * * arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defense to be set up in the answer and proved by the defendant.’ We interpret the statement in the bill of exceptions that there was no evidence that the automobile was registered in the name of Esther K. Seder to mean that no certificate of such registration was introduced and that no witness testified that it was so registered. The statute could hardly be interpreted to mean that, when evidence not believed by the fact finding tribunal is introduced, the foundation has been laid for the prima facie evidence to which the statute refers. The prima facie evidence rule would seem to be applicable only when the fact of registration is proved by the evidence. In Thomes v. Meyer Store, Inc., 268 Mass. 587, at page 589, 168 N. E. 178, 179, the court said, that the statute required the inference of the one fact from the proof of the others, and that the statute in the cases described makes registration of the motor vehicle in the name of the defendant as owner prima facie evidence of the further fact, and that ‘It is to be observed that the effect of this statute is to create certain specified facts when proved as prima facie evidence of a further important fact.’ In Wilson v. Grace (Mass.) 173 N. E. 524, at page 527, the court used this language: ‘It merely, as a matter of trial procedure * * * makes the fact that the automobile ‘was registered in the name of the defendant as owner’ prima facie evidence.' In the case last cited the fact of registration was established by agreement of parties, not by the introduction of evidence. The statute requires motor vehicles to be registered in the name of the owner. G. L. c. 90, § 2. There was no evidence tending to prove that Mrs. Seder's motor vehicle was not properly registered. In this state of the evidence the jury would be bound to find in the case of Mary Karpowicz against Seder that the automobile was registered in the owner's name. Trombley v. Stevens-Duryea Co., 206 Mass. 516, 518, 92 N. E. 764. Such registration would be established by the undisputed evidence as to ownership and as to operation upon a public way by the owner's chauffeur, and the inference to be drawn therefrom based upon the fact that people generally obey the law and are therefore presumed to comply with the statutory requirements imposed upon them. The fact of registration being thus established, the statute is applicable. Doherty v. Inhabitants of Ayer, 197 Mass. 241, 248, 83 N. E. 677,14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355; Trombley v. Stevens-Duryea Co., supra; Jubilee Yacht Club v. Gulf Refining Co., 245 Mass. 60, 62, 140 N. E. 280. The absence of responsibility on the part of the defendant Seder for the acts of her chauffeur would therefore by virtue of the statute become a matter of affirmative defence. Thomes v. Meyer Store, Inc., supra; Wilson v. Grace, supra. The exception to the part of the charge in which the judge referred to the statute must be overruled in so far as the case of Mary Karpowicz against Seder is concerned, and the verdict could not have been directed in the defendant's favor in that case.

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