Wilson v. Grace

• Decision Date: 25 November 1930
• Parties: WILSON v. GRACE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 146

173 N.E. 524

WILSON

v.GRACE (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 25, 1930.

Exceptions from Superior Court, Worcester County; Whiting, Judge.

Separate actions by Morris Wilson and by Sophie Wilson against Samuel Grace. In the first case, defendant's motions for a directed verdict as to the first and third counts in the declaration were denied, and as to the second and fourth counts were granted, and, in the second action, defendant's motion for a directed verdict as to the first count of the declaration was denied, and the motion as to the second count was granted. A verdict was rendered in each case for the plaintiff, and defendant brings exceptions to the denial of his motions.

Exceptions overruled in the second case, and, in the first case, judgment directed to be entered in accordance with opinion.S. A. Seder and S. Lurier, both of Worcester, for plaintiffs.

S. B. Milton and C. C. Milton, both of Worcester, for defendant.

FIELD, J.

These are actions of tort. They were tried by a judge and a jury with two other actions brought by these plaintiffs against Louis Grace. The plaintiff Sophie Wilson seeks to recover for personal injuries received by her when the automobile owned by her husband, Morris Wilson, in which she was sitting, was struck by the defendant's automobile, operated by Louis Grace. Her declaration was in two counts. The plaintiff Morris Wilson seeks to recover for damages to his automobile and for the medical expenses of his wife. His declaration was in four counts, the first and second for property damage, the third and fourth for medical expenses. In each case the defendant filed a motion for a directed verdict on each count of the declaration. In the case of Sophie Wilson the motion as to the first count of the declaration was denied and the motion as to the second count was granted. In the case of Morris Wilson the motions as to the first and third counts were denied and the motions as to the second and fourth counts were granted. The defendant excepted to the denial of his motions. February 3, 1930, a verdict was rendered in each case for the plaintiff.

There was evidence that on October 23, 1927, an automobile owned by Morris Wilson was struck on a public way be an automobile driven by one Louis Grace, and damaged, that Sophie Wilson, who was sitting in her husband's automobile, ‘was injured as a result of the impact,’ and that her husband, ‘expended over four hundred dollars in medical expenses for services rendered to his wife as a result of this accident.’ The defendant agreed that the automobile driven by Louis Grace was owned by the defendant and registered in his name as owner. It was agreed further ‘that the evidence was sufficient to warrant the jury in finding that the driver of the defendant's car was negligent and that the plaintiff Sophie Wilson was in the exercise of due care at the time of the accident.’ The defendant contends, however, that the jury was not warranted in finding that at the time of the accident his automobile was ‘being operated by and under the control of a person for whose conduct the defendant was legally responsible.’

1. The motion for a directed verdict on count one of the declaration in the case brought by Sophie Wilson was denied rightly.

[1] St. 1928, c. 317, § 1, added a new section, section 85A, to G. L. c. 231, which provided that ‘In all actions to recover damages for injuries to the person or to property or for the death of a 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 defence to be set up in the answer and proved by the defendant.’ This section became operative September 1, 1928. St. 1928, c. 317, § 3. Since it is procedural in its nature it applies to cases where, as here, the cause of action arose before, and the trial took place after, its passage. Smith v. Freedman (Mass.) 167 N. E. 335;Thomes v. Meyer Store, Inc. (Mass.) 168 N. E. 178;Haun v. Le Grand (Mass.) 168 N. E. 180. The case brought by Sophie Wilson, being an action ‘to recover damages for injuries to the person,’ is within the terms of the statute.

By force of the statute the agreement that the automobile, operated by Louis Grace at the time of the accident, was registered in the name of the defendant as owner was ‘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’ in each case became ‘an affirmative defence to be set up in the answer and proved by the defendant.’ This statute did not change the substantive law. Smith v. Freedman (Mass.) 167 N. E. 335. It does not impose upon the owner of an automobile liability for the negligence of an unauthorized operator, whether or not such operator is a thief or is violating G. L. c. 90, § 24, as amended by St. 1926, c. 253, by using ‘a motor vehicle without authority knowing that such use is unauthorized.’ It merely, as a matter of trial procedure, (a) puts upon the owner the burden of proving that the automobile was not ‘being operated by and under the control of a person for whose conduct * * * [he] was legally responsible,’ with the attendant risk of liability if he does not sustain this burden (Smith v. Freedman, supra), and (b) makes the fact that the automobile ‘was registered in the name of the defendant as owner’ prima facie evidence (as it was not before the passage of the statute. Trombley v. Stevens-Duryea Co., 206 Mass. 516, 519, 92 N. E. 764) that the automobile was ‘being operated by and under the control of’ such a person. Thomes v. Meyer Store, Inc. (Mass.) 168 N. E. 178.

The defendant set up in his answer the affirmative defense that ‘the operator of his automobile was not acting as his agent or servant,’ but it could not have been ruled as matter of law, in accordance with his contention, that the prima facie evidence of agency was overcome and the affirmative defense proved.

It is true that the testimony of Louis Grace and the defendant, uncontradicted apart from the statute, tended to show that Louis Grace was operating the automobile without authority from the defendant, but they were not the plaintiff's witnesses-as to a plaintiff's own witnesses, see Connors v. Cunard Steamship Co., Ltd., 204 Mass. 310, 321, 90 N. E. 601,26 L. R. A. (N. S.) 171, 134 Am. St. Rep. 662,17 Ann. Cas. 1051; Haun v. Le Grand, supra-and the plaintiff was not bound by their testimony. The jury could disbelieve it. Lindenbaum v. New York, New Haven & Hartford Railroad Co., 197 Mass. 314, 323, 84 N. E. 129, and cases cited. Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235.

[8] In the course of his testimony Louis Grace stated in substance, that, in a conversation with Morris Wilson, he told Wilson that he did not have permission from the defendant to use the automobile, Wilson asked the witness to have the defendant report to the insurance company that the witness had such permission ‘so he could make a case out of it,’ but the witness refused to do so, and Wilson also asked him to have his father report that the witness was using his truck at the time of the accident. Wilson previously testified that he had had a conversation with Louis Grace, but did not state what was said. The defendant, relying upon Attorney General v. Pelletier, 240 Mass. 264, 316, 134 N. E. 407, contends that Wilson's failure to testify in refutation of this testimony of Louis Grace was an admission of its truth, binding upon the plaintiff for whom, it is argued, Wilson was acting at the time of the conversation and at the trial. Without discussing other aspects of this contention it is sufficient to say that such failure to testify, at most, was evidence for the consideration of the jury from which unfavorable inferences could be drawn. Even if Wilson's failure to testify was ‘conduct in the nature of an admission’ (Attorney General v. Pelletier, supra, see, also, Proctor v. Old Colony Railroad Co., 154 Mass. 251, 253, 254, 28 N. E. 13;Howe v. Howe, 199 Mass. 598. 603,85 N. E. 945,127 Am. St. Rep. 516), it was not an admission, conclusiveas matter of law, that the conversation was reported correctly by Louis Grace nor that the statement said to have been made by him during the course of it, that he was operating the automobile without permission, was true. Such conduct ‘does not amount to an estoppel.’ See Proctor v. Old Colony Railroad Co., supra. Moreover, even if the conversation was reported correctly it was a question of fact whether Wilson's conduct during the course of it was an admission of the truth of Louis Grace's statement of his lack of authority. Greenfield Bank v. Crafts, 2 Allen, 269, 273;Commonwealth v. Harvey, 1 Gray, 487, 489; Proctor v. Old Colony Railroad Co., supra.

The defendant contends that as matter of law the prima facie evidence that Louis Grace was authorized to use his automobile is overcome by the presumption that the defendant was innocent of violating G. L. c. 90, § 12, as amended by St. 1923, c. 464, § 5 and St. 1925, c. 201, § 1, providing that ‘no person shall allow a motor vehicle owned by him or under his control to be operated by any person who has no legal right so to do.’ This argument rests upon the assumption that at the time of the accident Louis...