Massachusetts general laws annotated



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MA ST 231 s 85A

M.G.L.A. 231 § 85A


MASSACHUSETTS GENERAL LAWS ANNOTATED

PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES

TITLE II. ACTIONS AND PROCEEDINGS THEREIN

CHAPTER 231. PLEADING AND PRACTICE

PRACTICE

EVIDENCE, LIABILITY, ETC.
Copr. © West Group 2000. All rights reserved.
Current through 1999 1st First Annual Session
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§ 85A. Prima facie evidence of owner's responsibility for operation of motor vehicle
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.
<General Materials (GM) ‑ References, Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
1985 Main Volume
St.1928, c. 317, § 1.
CROSS REFERENCES
Motor vehicles, generally, see c. 90, § 1 et seq.
Notice in actions growing out of motor vehicle accidents, see c. 90, § 34F
Reckless, unauthorized or drunken driving, see c. 90, § 24.
Rules of pleading, see R.Civ.P. Rule 8 et seq.
Suits to reach and apply, obligation of liability insurance companies, see c. 214, § 3.
Theft or concealment of motor vehicles, see c. 266, § 28.
Venue of transitory actions, see c. 223, § 2.
AMERICAN LAW REPORTS
Who is "owner" within statute making owner responsible for injury or death inflicted by operator of automobile. 74 ALR3d 739.
Construction and application of statute imposing liability expressly upon motor vehicle lessor for damage caused by operation of vehicle. 41 ALR4th 993.
LAW REVIEW AND JOURNAL COMMENTARIES
Burden of proof. Frederick A. McDermott, 7 Ann.Surv.Mass.L., Boston College, p. 235 (1961).
Developments in the law of evidence, 1932: Operation of rebuttable presumptions. (1933) 46 Harv.L.Rev. 1138.
Law of parent and child in New England (1956) 36 B.U.L.Rev. 622.
Massachusetts agency statute in motor vehicle accident cases. Elmer Brown (1933) 13 B.U.L.Rev. 687.
Operation of statutory presumption of owner's consent to operate motor vehicle. (1952) 65 Harv.L.Rev. 1077.
Presumptions. W. Barton Leach and Paul J. Liacos (1967) 52 Mass.L.Q. 122.
Product liability enters the 1990's. Raymond J. Kenney, Jr., 75 Mass.L.Rev. 70 (1990).
Service of process. (1961) 46 Mass.L.Q. 46.
Vehicle presumptions. Thomas F. Lambert, Jr. (1960) 25 NACCA L.J. 193.
LIBRARY REFERENCES
2000 Electronic Pocket Part Update
Comments.
Automobile negligence, agency, see Bishop, 17A Massachusetts Practice §

18.33 (4th ed.).

Automobile negligence, check list of plaintiff's case, see Bishop, 17A

Massachusetts Practice § 18.61 (4th ed.).

Burden of persuasion, see Bishop, 17C Massachusetts Practice § 58.4 (4th

ed.).


Identification of defendant, see, Kenney and Farris, 11 Massachusetts

Practice §§ 2.9, 6.4 (3d ed.).

Motor vehicles, agency statutes, see M.P.S. vol. 17B, Bishop, §§ 650, 1817.

Negligence, defenses, see M.P.S. vol. 37A, Nolan and Sartorio, § 401 et seq.

Owner, operator of motor vehicle, negligence, see M.P.S. vol. 37A, Nolan and

Sartorio, § 390.

Presumptions and burden of proof, motor vehicles, agency statutes, see

Bishop, 17C Massachusetts Practice § 58.240 (4th ed.).

Prima facie evidence, see Alperin and Shubow, 14B Massachusetts Practice §

13.58 (3d ed.).

Proof of negligence, res ipsa loquitor, see Bishop, 17 Massachusetts

Practice § 17.5 (4th ed.).

Texts and Treatises
20 Mass Jur, Insurance § 17:34.

Mass Jur, Personal Injury and Torts §§ 21:64‑21:73, 21:88, 22:2.

8 Am Jur 2d, Automobiles and Highway Traffic §§ 583 et seq.

Trial Handbook for Massachusetts Lawyers (3rd Ed.) §§ 9:1, 17:5, 17:29.


1985 Main Volume
Automobiles k192(1), 242(5), 244(32).

Negligence k121(1), 134(1).

C.J.S. Motor Vehicles §§ 428 et seq., 511.24, 511.25, 517(4).

C.J.S. Negligence §§ 204, 243, 246.

Comments.
Agency, see M.P.S. vol. 11, Martin and Hennessey, § 121 et seq.

Legislative control over rules of evidence, see M.P.S. vol. 19, Hughes, § 6.

Ownership of motor vehicle not prima facie evidence of responsibility where

owner is plaintiff, see M.P.S. vol. 11, Martin and Hennessey, § 343.

Practice and procedure in motor vehicle cases, see M.P.S. vol. 12, Martin and

Hennessey, § 1031 et seq.

Reasons for creation of presumptions, see M.P.S. vol. 19, Hughes, § 42.

Registered owner is prima facie responsible, see M.P.S. vol. 11, Martin and

Hennessey, § 124.

Wrongful death actions, see M.P.S. vol. 11, Martin and Hennessey, §§ 181,



186.
NOTES OF DECISIONS


Accident report 19

Admissibility of evidence, generally 26

Affirmative defenses 22

Agent or servant

Agent or servant ‑ Generally 8

Agent or servant ‑ Questions of fact 34

Agent or servant, owner's liability for acts of third persons

Agent or servant, owner's liability for acts of third persons ‑ Acts

permitted by agent or servant, generally 16

Agent or servant, owner's liability for acts of third persons ‑ Sales agents 17

Agent or servant, weight and sufficiency of evidence

Agent or servant, weight and sufficiency of evidence ‑ Generally 28

Agent or servant, weight and sufficiency of evidence ‑ Authority 29

Bailment 9

Burden of proof 24

Consequential damages 37

Construction and application 2

Construction with other laws 3

Damages 36, 37

Damages ‑ In general 36

Damages ‑ Consequential damages 37

Employees, owner's liability for acts of third persons 14

Evidence

Evidence ‑ Generally 25

Evidence ‑ Weight and sufficiency 27‑31

Fact questions 33‑35

Guests 18

Identity and ownership of vehicles

Identity and ownership of vehicles ‑ Generally 10

Identity and ownership of vehicles ‑ Questions of fact 35

Imputed negligence 11

Instructions 32

Law governing 6

Liability of persons other than owners 12

Negligence, weight and sufficiency of evidence 31

Operation of vehicle 7

Owner's liability for acts of third persons 13‑17

Owner's liability for acts of third persons ‑ In general 13

Owner's liability for acts of third persons ‑ Acts permitted by agent or servant, generally 16

Owner's liability for acts of third persons ‑ Employees 14

Owner's liability for acts of third persons ‑ Parent and child 15

Owner's liability for acts of third persons ‑ Purchasers or sales agents 17

Ownership, weight and sufficiency of evidence 30

Ownership and identity of vehicles

Ownership and identity of vehicles ‑ Generally 10

Ownership and identity of vehicles ‑ Questions of fact 35 Parent and child, owner's liability for acts of third persons 15

Parties 21

Passengers, guests or occupants 18

Presumptions and burden of proof 24

Purchasers or sales agents, owner's liability for acts of third persons 17

Questions of fact 33‑35

Questions of fact ‑ In general 33

Questions of fact ‑ Agent or servant 34

Questions of fact ‑ Identity and ownership of vehicles 35

Registration 20

Report of accident 19

Retroactive effect 5

Review 38

Scope of law 4

Servant or agent

Servant or agent ‑ Generally 8

Servant or agent ‑ Questions of fact 34

Servant or agent, owner's liability for acts of third persons

Servant or agent, owner's liability for acts of third persons ‑ Acts

permitted by servant or agent, generally 16

Servant or agent, owner's liability for acts of third persons ‑ Sales agents 17

Servant or agent, weight and sufficiency of evidence

Servant or agent, weight and sufficiency of evidence ‑ Generally 28

Servant or agent, weight and sufficiency of evidence ‑ Authority 29

Sufficiency of evidence 27‑31

Third persons, owner's liability for acts of third persons 13‑17

Validity 1

Variance between pleading and proof 23

Vehicles, identity and ownership

Vehicles, identity and ownership ‑ Generally 10

Vehicles, identity and ownership ‑ Questions of fact 35

Vehicles, operation 7

Weight and sufficiency of evidence 27‑31

Weight and sufficiency of evidence ‑ In general 27

Weight and sufficiency of evidence ‑ Agent or servant, generally 28

Weight and sufficiencyof evidence ‑ Authority of agent or servant 29

Weight and sufficiency of evidence ‑ Negligence 31

Weight and sufficiency of evidence ‑ Ownership 30

1. Validity
G.L.1921, c. 231, § 85A which made registration prima facie evidence of automobile owner's responsibility for driver's acts was not arbitrary or irrational. Thomes v. Meyer Store (1929) 168 N.E. 178, 268 Mass. 587.
2. Construction and application
A "garage" is, primarily at least, a building for the storing of motor vehicles, and an airplane is not a "motor vehicle" under this section; that term, in common and statutory usage, being identified with surface vehicles; and, under zoning bylaw authorizing a garage for two cars as accessory use for land in single‑residence district, garage could not be used for storage of seaplane belonging to owners of residential property abutting pond. Building Inspector of Falmouth v. Gingrass (1959) 154 N.E.2d 896, 338 Mass. 274.
This section providing that registration of motor vehicle in defendant's name is evidence of his responsibility for conduct of driver was not applicable in personal injury action, where truck was not registered in name of defendant as owner. Ouellette v. Bethlehem‑Hingham Shipyard (1947) 73 N.E.2d 592, 321 Mass. 390.
This section making registered owner of automobile prima facie legally responsible for driver's conduct is procedural in nature and relates to evidence only and not to substantive rights, and gives to the fact that an automobile involved in an accident was at the time registered in name of defendant as owner the prima facie evidential effect that automobile was then being operated by and under control of a person for whose conduct defendant is legally responsible. Dineasoff v. Casey (1940) 29 N.E.2d 25, 306 Mass. 555.
In the case of Legarry v. Finn Motor Sales (1939) 23 N.E.2d 1011, 304 Mass. 446, the court said: "Section 85A was important remedial legislation. It was obviously intended to do away with the difficulty which under the law as it had previously stood was often encountered by injured persons in trying to make formal proof that the driver was operating in the owner's behalf at the time of an accident. The truth about this matter would be known to the defendant and the evidence would normally be within his control. The truth would commonly be unknown to the plaintiff and often very difficult of ascertainment by him. It may well have been thought that greater justice would be done and more responsible control over motor vehicles established by shifting the burden. Registration as owner could be used as a means of accomplishing these results. The law in this Commonwealth would thus be brought into approximate conformity with that manifested by judicial decision in a number of other jurisdictions. Thomes v. Meyer Store, Inc., 268 Mass. 587, 589, 168 N.E. 178. See cases collected in 74 A.L.R. 951. Compare Arnold v. Brereton, 261 Mass. 238, 241, 158 N.E. 671, decided before the enactment of section 85A. The objects sought can best be attained by a liberal construction and a wide application of the act throughout the field and would be in part defeated by limitation to special classes of cases. The evils to be overcome would seem to exist in connection with vehicles owned by dealers no less than in connection with those owned by persons not dealers, and the remedy would seem equally appropriate. Chapter 231, § 85A, should therefore be held to apply where the vehicle involved in an accident is owned by a dealer and is 'regarded as registered' under c. 90, § 5, if the words of section 85A, will fairly admit of that construction."
This section providing that registration of motor vehicle in defendant's name is evidence of responsibility for conduct of operator in action for injuries to person, property, or for death, does not apply to suit to reach liability of insurer after judgment. Jones v. Cella (1933) 187 N.E. 294, 284 Mass. 154.
St.1928, c. 317, § 1 which made registered owner of automobile prima facie responsible for driver's conduct was inapplicable to action in which owner was plaintiff. Thompson v. Sides (1931) 176 N.E. 623, 275 Mass. 568.
Where presumption obtained that automobile was registered in owner's name, St.1928, c. 317, § 1 which made registered owner prima facie responsible for driver's conduct was applicable. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413.
Legislature in enacting G.L.1921, c. 231, § 85A constituting complete reversal of common law could not be presumed to have intended to go beyond purpose manifested by words used. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
"Prima facie evidence," within G.L.1921, c. 231, § 85A making automobile registration prima facie evidence of owner's responsibility, required verdict or finding in accordance with its effect, if uncontroverted. Thomes v. Meyer Store (1929) 168 N.E. 178, 268 Mass. 587.
St.1928, c. 317, effective September 1, 1928, adding § 85A to G.L. c. 231, and providing that in personal injury cases arising out of accident or collision involving motor vehicle, evidence that motor vehicle was registered in name of defendant as owner shall be prima facie evidence that it was being operated by and under control of person for whose conduct defendant was legally responsible, was a remedial statute relating only to the burden of proof, and applicable to all causes coming on for trial after effective date of act, and is not limited to those in which cause of action arises after such date. Smith v. Freedman (1929) 167 N.E. 335, 268 Mass. 38.
3. Construction with other laws
St.1958, c. 598, § 5, providing that if the vehicle is operated within tunnel property in violation of any provision of the rules and regulations and the identity of the operator of such vehicle cannot be determined, the person in whose name such vehicle is registered shall be deemed prima facie responsible for such violation permitted, but did not oblige, trial judge in bench trial to draw from the basic agreed fact, that the defendant was the registered owner of the car, the inferred or presumed fact that the defendant was "responsible" for the undisputed intentional evasion of the toll by the operator of the vehicle. Com. v. Pauley (1975) 331 N.E.2d 901, 368 Mass. 286, appeal dismissed 96 S.Ct. 181, 423 U.S. 887, 46 L.Ed.2d 119.
St.1958, c. 598, § 5 promulgated by the Massachusetts Turnpike Authority providing that if a vehicle is operated within tunnel property in violation of any provision of the rules and regulations and the identity of the operator of such vehicle cannot be determined, the person in whose name such vehicle is registered shall be deemed prima facie responsible for such violation was valid and permitted the trial judge, as trier of fact, to find defendant guilty beyond a reasonable doubt of acting with intent to evade payment of toll, although trial judge was not obligated to do so. Com. v. Pauley (1975) 331 N.E.2d 901, 368 Mass. 286, appeal dismissed 96 S.Ct. 181, 423 U.S. 887, 46 L.Ed.2d 119.
Provisions of this section under which registration of motor vehicle in name of defendant is prima facie evidence of driver's agency and § 85B of this chapter creating presumption of owner's responsibility from registration are procedural in nature relating solely to evidence and not to substantive rights, and operate to render unnecessary proof of driver's agency only where defendant is properly made subject to jurisdiction of court; they are not intended to extend scope of provisions of c. 90, § 3A, for service of process upon registrar of motor vehicles. Segal v. Yates (1969) 253 N.E.2d 841, 356 Mass. 449.
Ruling of Bureau of Motor Carriers of Interstate Commerce Commission that a carrier hiring motor vehicle should do so by lease providing for transfer to lessee of exclusive control over vehicle and operator, did not supersede this section making registration of motor vehicle in name of owner prima facie evidence that vehicle is being operated under control of a person for whose conduct registered owner is legally responsible. Garfield v. Smith (1945) 59 N.E.2d 287, 317 Mass. 674, certiorari denied 65 S.Ct. 1568, 325 U.S. 879, 89 L.Ed. 1995, certiorari denied 65 S.Ct. 1569, 325 U.S. 879, 89 L.Ed. 1995.
4. Scope of law
This section making evidence that a motor vehicle at time of accident was registered in name of defendant as owner prima facie evidence that it was being operated by person for whose conduct defendant was legally responsible does not establish that the driver was defendant's agent within provisions of the statute authorizing substituted service upon the Registrar of Motor Vehicles where a motor vehicle has been operated within the commonwealth by defendant either by himself or by his agent. Wilson v. Hazard, D.C.Mass.1956, 145 F.Supp. 23.
This section making evidence that a motor vehicle at time of an accident was registered in name of defendant as owner prima facie evidence that it was operated by a person for whose conduct defendant was legally responsible is intended only to be a rule of evidence applicable to the trial of cases already properly before the court and not to extend the scope of the statute for service of process on a nonresident by serving the Registrar of Motor Vehicles. Wilson v. Hazard, D.C.Mass.1956, 145 F.Supp. 23.
This section does not make owner prima facie liable for every accident in which automobile is involved and merely carries case to jury. Falden v. Crook (1961) 172 N.E.2d 686, 342 Mass. 173.
This section made registration in name of employer prima facie evidence that employer's truck driver in driving truck was agent of employer, but did not create prima facie proof that driver could enlarge employment to include giving rides to whomsoever he might choose. Falden v. Crook (1961) 172 N.E.2d 686, 342 Mass. 173.
This section states rule of evidence and not of liability, and does not make registration prima facie evidence that operator was empowered by owner to invite others to ride with him. Pistorio v. Williams Buick, Inc. (1960) 167 N.E.2d 850, 341 Mass. 155.
This section relating to prima facie evidence as to ownership of "motor vehicle" involved in accident or collision does not apply to an airplane. Rich v. Finley (1949) 89 N.E.2d 213, 325 Mass. 99.
This section placing burden of proof on registered owner of motor vehicle to show absence of responsibility for driver's negligence changes only the burden of proof and not the substantive law. Fitiles v. Umlah (1948) 77 N.E.2d 212, 322 Mass. 325.
This section making automobile owner's registration prima facie evidence of responsibility for driver's acts does not make owner prima facie liable for every accident in which his automobile was involved, but the legal responsibility is simply such responsibility as follows from the fact of agency and of action in the course of owner's business. Little v. Levison (1944) 55 N.E.2d 17, 316 Mass. 159.
In automobile accident case, this section making registered owner of automobile prima facie legally responsible for driver's conduct made evidence of registration of automobile in name of its owner at time of accident prima facie evidence that one operating automobile was agent of owner and engaged in owner's business, but statute did not make such registration prima facie evidence of anything else. Dineasoff v. Casey (1940) 29 N.E.2d 25, 306 Mass. 555.
G.L.1921, c. 231, § 85A meant that ownership and registry of automobile causing injury in defendant prima facie showed driver to be his agent acting within scope of his business, and that to such extent defendant was prima facie liable. Bruce v. Hanks (1931) 178 N.E. 728, 277 Mass. 268.
G.L.1921, c. 231, § 85A which made registered owner of automobile prima facie legally responsible for driver's conduct was procedural and did not change substantive law. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
5. Retroactive effect
G.L.1921, c. 231. § 85A which made registration prima facie evidence of responsibility for driver's acts was applicable to subsequent trials of accidents occurring before effective date of act. Haun v. Le Grand (1929) 168 N.E. 180, 268 Mass. 582; Smith v. Freedman (1929) 167 N.E. 335, 268 Mass. 38.
In action for injuries by automobile, St.1928, c. 317 which made registration in defendant's name prima facie evidence of operation under his responsibility was applicable though enacted after cause arose. Greenburg v. Gorvine (1932) 181 N.E. 128, 279 Mass. 339.
G.L.1921, c. 231, § 85A which made registered owner of motor vehicle prima facie legally responsible for driver's conduct was applicable to cases involving accidents before enactment. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
G.L.1921, c. 231, § 85A which made automobile owner's registration prima facie evidence of responsibility for driver's acts was applicable to subsequent trials involving prior accidents. Thomes v. Meyer Store (1929) 168 N.E. 178, 268 Mass. 587.
6. Law governing
In diversity action, effect of state statutory presumption of agency relationship between vehicle driver and registered owner had to be determined under state law. Richardson v. Matthews, D.Mass.1995, 882 F.Supp. 6.
In diversity action, federal summary judgment standard controlled question of whether Massachusetts statutory presumption of agency relationship between vehicle driver and registered owner was rebutted as a matter of law, notwithstanding existence of Massachusetts precedent making existence of agency relationship once presumption is raised a question for fact finder. Richardson v. Matthews, D.Mass.1995, 882 F.Supp. 6.
Where federal court's jurisdiction of action brought in Massachusetts for damages arising out of an automobile accident which occurred in Connecticut was based on diversity of citizenship, court was bound to apply a Massachusetts automobile owner responsibility statute to Connecticut accident in view the fact that Massachusetts courts would apply the statute to such accident. Cardell v. Morrison, D.C.Mass.1956, 138 F.Supp. 817.
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