Massachusetts general laws annotated
Presumptions and burden of proof
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- 25. Evidence, generally
- 26. Admissibility of evidence, generally
- 27. Weight and sufficiency of evidence‑‑In general
- 28. ‑‑‑‑ Agent or servant, generally, weight and sufficiency of evidence
- 29. ‑‑‑‑ Authority of agent or servant, weight and sufficiency of evidence
- 30. ‑‑‑‑ Ownership, weight and sufficiency of evidence
- 31. ‑‑‑‑ Negligence, weight and sufficiency of evidence
- 32. Instructions
24. Presumptions and burden of proof If car owned by dealer, bearing its dealer plates, is involved in accident, dealer is prima facie responsible for driver's conduct, and dealer has burden of proving that driver was not its servant or agent in driving car. Mitchell v. Hastings & Koch Enterprises, Inc. (1995) 647 N.E.2d 78, 38 Mass.App.Ct. 271, review denied 648 N.E.2d 1286, 420 Mass. 1102. This section which makes evidence that a defendant is the registered owner of a motor vehicle prima facie evidence of a master‑servant relationship between the defendant and operator of the vehicle and imposes on the defendant a burden of proving the nonexistence of that relationship simply states a rule of evidence and does not change the substantive law of negligence. Cheek v. Econo‑Car Rental System of Boston, Inc. (1985) 473 N.E.2d 659, 393 Mass. 660. Plaintiffs injured in defendant's automobile allegedly owned by defendant and driven by another had burden to show that driver had authority, actual or apparent, to invite persons such as plaintiffs. Gallo v. Veliskakis (1970) 259 N.E.2d 568, 357 Mass. 602. This section placing burden of proof on registered owner of automobile to show absence of responsibility for driver's negligence does not change the substantive law, but does dispense with proof that person operating automobile was servant of registered owner acting within scope of his employment and makes it possible for jury to find that he was such servant without other evidence to that effect and to disbelieve any evidence that he was not. Arrigo v. Lindquist (1949) 85 N.E.2d 782, 324 Mass. 278. Under this section the person in whose name motor vehicle is registered has the burden of proving that at time of collision it was not being operated by a person for whose conduct he was responsible. Fitiles v. Umlah (1948) 77 N.E.2d 212, 322 Mass. 325. In automobile collision case, registration of automobile in name of corporate defendant as owner was prima facie evidence that operator of the automobile was a person for whose conduct corporate defendant was legally responsible, and burden was upon corporate defendant to prove that the operator was not such a person. Le Blanc v. Pierce Motor Co. (1940) 30 N.E.2d 684, 307 Mass. 535. In automobile accident case, fact that one of the automobiles was owned and registered in corporate defendant's name was prima facie evidence that such automobile at time of accident was being operated by an employee of corporate defendant within scope of his employment. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394. Defendants, after plaintiffs established prima facie case of liability for automobile driver's conduct arising from registration, had burden to prove contrary. Ferreira v. Franco (1930) 173 N.E. 529, 273 Mass. 272. Presumption against violation of statute prohibiting owner from allowing certain persons to operate automobile was not evidence to be weighed against prima facie evidence of defendant's legal responsibility for driver's conduct based on registration. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. Where G.L.1921, c. 231, § 85A, which made registered owner prima facie legally responsible for automobile driver's conduct, was inapplicable, plaintiff had burden to prove driver was defendant's agent acting within scope of authority. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. G.L.1921, c. 231, § 85A which made automobile registration prima facie evidence of owner's responsibility for driver's acts did not establish mere "presumption". Thomes v. Meyer Store (1929) 168 N.E. 178, 268 Mass. 587. G.L.1921, c. 231, § 85A did not purport to change the substantive law of negligence in any manner whatever. It merely shifted the burden of proof from the plaintiff to the defendant and required the latter to prove that at the time of the collision or accident the person operating the motor vehicle was not engaged in the business of the employer. The statute did not impair or modify the fundamental rights of a defendant, who was at liberty to overcome the prima facie evidence created by the statute by other evidence. Smith v. Freedman (1929) 167 N.E. 335, 268 Mass. 38. One suing automobile owner for minor son's negligence had burden to prove son acted as agent. Dennis v. Glynn (1928) 159 N.E. 516, 262 Mass. 233. Notwithstanding St.1903, c. 473, provided that for the purposes of the issuance, transfer, and revocation of certificates, and the enforcement of the act, automobiles should be identified by their register number, and their owners ascertained from the certificate, the common law controlled, and there was no presumption, from a person's mere physical possession of an automobile of another, that he operated it as the servant or agent of the owner; and to bind the owner for negligent operation such relation had to be shown. Trombley v. Stevens‑Duryea Co. (1910) 92 N.E. 764, 206 Mass. 516. Under this section burden of showing illegality of registration of defendant's automobile is on plaintiff. Cochrane v. Easter (App. Div. 1955) 9 Mass.App.Dec. 85. In suit arising from the collision of two vehicles, trial court erroneously ruled that M.G.L.A. c. 231, § 85A created an irrebuttable presumption which required a finding as a matter of law that the owner of vehicle was legally responsible for the acts of its employee who was driving the vehicle. Universal Underwriters Ins. Co. v. Howlett (App. Div. 1991) 1991 Mass.App.Div. 148. 25. Evidence, generally Even though there was evidence tending to rebut prima facie evidence supplied by registration of truck in defendant's name that driver of truck at time of accident was a person for whose conduct defendant was legally responsible, it was for trial judge to decide how much of such evidence he would believe, whether it came from witnesses called by defendant or from witness called by plaintiffs. Laskey v. Railway Exp. Agency (1950) 94 N.E.2d 256, 326 Mass. 339. 26. Admissibility of evidence, generally 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 under which registration creates presumption of owner's responsibility did not preclude admission of testimony dealing with lack of driver's agency. Segal v. Yates (1969) 253 N.E.2d 841, 356 Mass. 449. In actions for damages to plaintiff's interstate bus which was stopped at the curbing and which was struck from rear by defendants' automobile, testimony of superintendent of building and properties of intrastate bus company about bus stop beyond which the bus was stopped was admissible in connection with a description of general scene of accident, and this testimony and a regulation of state registry of motor vehicles that no person shall stop bus on state highway at any place other than a bus stop when a nearby bus stop is available had probable relevance and an apparent connection with the case. Woodcock v. Trailways of New England, Inc. (1959) 162 N.E.2d 658, 340 Mass. 36. Where parties in court action to recover for injuries and property damage sustained in collision between truck and other motor vehicles stipulated that a truck owned by defendant was operated at time of collision by driver who was in the employ of defendant, and defendant at no time asked to be relieved from the stipulation, and there was no showing that stipulation was improvidently made or that in the interests of justice is should have been discharged, court properly excluded evidence to effect that defendant was not an owner within purview of this section and was merely a lessee. Lynch v. Kaufman (1952) 105 N.E.2d 848, 329 Mass. 762. Where plaintiff introduced defendant's answers to interrogatories stating that defendant had heard that her automobile had been involved in an accident and defendant's report to registry of motor vehicles stating that automobile had been stolen and had been involved in an accident involving a pedestrian, and defendant did not seek to limit scope of report, report and answers, although in form of hearsay, were evidence that defendant's automobile was one involved in accident causing plaintiff's injuries rendering applicable this section creating prima facie evidence that automobile was being operated under control of person for whose conduct defendant was legally responsible. Pochi v. Brett (1946) 65 N.E.2d 195, 319 Mass. 197. In action against registered owner of tractor and trailer for damages resulting from negligent operation thereof in interstate commerce while under lease to another company, ruling of Bureau of Motor Carriers of Interstate Commerce Commission that a carrier hiring a motor vehicle should do so by lease providing for transfer to lessee of exclusive control of vehicle and operator was immaterial and exclusion thereof was not error. 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. In actions against corporate defendant and its salesman for injuries received when plaintiff's automobile collided with automobile owned and registered in corporate defendant's name and driven by salesman, declarations made by salesman concerning happening of accident were not competent evidence against corporate defendant and were rightly limited to cases against salesman. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394. 27. Weight and sufficiency of evidence‑‑In general In action by taxicab passenger against taxicab company and driver of taxicab for injuries sustained in automobile accident, evidence was insufficient to establish that individual defendant was the driver of the taxicab involved in the accident. Lodge v. Congress Taxi Ass'n, Inc. (1960) 165 N.E.2d 94, 340 Mass. 570. In action against alleged partners doing business as used automobile dealers for negligent operation of automobile by one of them, act of one partner in attaching dealer's license tag to the automobile caused the automobile to be registered in the name of the partnership and was prima facie evidence that, at time of accident, it was being operated by and in the control of the partnership. Bachand v. Vidal (1951) 101 N.E.2d 884, 328 Mass. 97. Where pedestrian, suing automobile owner for personal injuries, introduced owner's answers to interrogatories, the pedestrian was not bound by owner's answer that automobile had been stolen but jury were at liberty to disregard the owner's testimony, and answers to interrogatories respecting theft, in view of this section, creating prima facie evidence that automobile was being operated by a person for whose conduct owner was legally responsible. Pochi v. Brett (1946) 65 N.E.2d 195, 319 Mass. 197. A statement that automobile is registered in defendant's name as owner would constitute prima facie evidence under this section that automobile was being operated at time of accident under control of a person for whose conduct defendant is legally responsible. Bagin v. Craven (1944) 57 N.E.2d 563, 316 Mass. 758. The jury may disbelieve testimony tending to controvert the effect of automobile registration as prima facie evidence, in death action, that automobile was being operated by one for whose conduct registrant was legally responsible, even though witnesses giving such testimony were called by plaintiff. Legarry v. Finn Motor Sales (1939) 23 N.E.2d 1011, 304 Mass. 446. The fact that an automobile was registered in the name of defendant is by this section prima facie evidence that it is being operated by a person for whose conduct defendant is legally responsible. Boyas v. Raymond (1939) 20 N.E.2d 411, 302 Mass. 519. A registered owner's ownership of automobile involved in an accident is evidence that he is responsible for the manner of its operation. Fallon v. Darney (1938) 15 N.E.2d 462, 300 Mass. 365. In action for injury sustained in collision by automobile with truck, that truck was registered in name of defendants was sufficient evidence for jury's finding that defendants were liable for conduct of third party driving truck. Solomon v. Dabrowski (1936) 3 N.E.2d 744, 295 Mass. 358. In action for injuries by automobile, jury could rely on statutory prima facie responsibility, notwithstanding testimony of registered owner's nonresponsibility for operator's negligence. Greenburg v. Gorvine (1932) 181 N.E. 128, 279 Mass. 339. Defendants' admission that truck at time of accident was registered in their name was prima facie evidence of legal responsibility for driver's conduct. Ferreira v. Franco (1930) 173 N.E. 529, 273 Mass. 272. Defendant's admission that automobile was registered in his name as owner at time of accident was prima facie evidence of legal responsibility for driver's conduct. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. Evidence merely that plaintiff was operating an automobile on a main street and that a taxicab emerged from a side street without stopping and collided with plaintiff's automobile was insufficient to warrant a finding that taxicab was being operated by defendant or by one for whose conduct he was responsible, and that taxicab was owned by or registered to defendant, or that operator of taxicab was negligent. Atkins v. Martin Jordan, Inc. (App. Div. 1966) 36 Mass.App.Dec. 67. Evidence that operator of motor truck bearing a distinctive name to designate a kind of business was insufficient to prove who owned the truck or that the operator was agent of the owner especially where no demand was made on defendant to admit agency and there was no evidence of registration of the truck. Spina v. Lucas (App. Div. 1961) 20 Mass.App.Dec. 135. 28. ‑‑‑‑ Agent or servant, generally, weight and sufficiency of evidence Fact that plaintiffs suing owner of automobile involved in accident were aided by prima facie evidence of agency did not deprive trial court of power to set aside verdict against owner if weight of the other evidence tended to prove that no agency relationship existed. Bergdoll v. Suprynowicz (1971) 268 N.E.2d 362, 359 Mass. 173. In action against alleged partners in a used automobile business for damages arising out of failure of one of them to exercise care in securing automobile in its position against curb after having driven it to test it for resale purposes, evidence was sufficient to sustain jury's finding that automobile had been used by one of the partners on partnership business. Bachand v. Vidal (1951) 101 N.E.2d 884, 328 Mass. 97. Apart from G.L.1921, c. 231, § 85A, proof of ownership of automobile and registration in defendant's name would not establish agency of operator of automobile at time of accident. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. Affirmative defense that operator of automobile was not acting as defendant's agent or servant would not warrant ruling as matter of law that prima facie evidence of agency arising from registration in defendant's name was overcome. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. Proof of registration of a motor vehicle creates prima facie evidence that the operator of the vehicle was acting as the agent of the person named as the registrant in the registration and such registrant, when a defendant, has the burden of overcoming prima facie the inference and proving the lack of the agency. Plescia v. Cavanaugh (App. Div. 1969) 42 Mass.App.Dec. 204. 29. ‑‑‑‑ Authority of agent or servant, weight and sufficiency of evidence Evidence supported finding of liability of dealership under agency theory for negligent conduct of driver of vehicle owned by dealership and bearing dealership plates, notwithstanding dealership's contention that vehicle had been stolen; alleged theft was not reported until three days after underlying accident, driver denied stealing car, and driver was personal friend of one of dealership's principals. Mitchell v. Hastings & Koch Enterprises, Inc. (1995) 647 N.E.2d 78, 38 Mass.App.Ct. 271, review denied 648 N.E.2d 1286, 420 Mass. 1102. Plaintiffs injured in automobile driven by defendant's nephew could not rely on registration in defendant's name for prima facie evidence of nephew's authority and at same time rely on evidence that defendant had declared that he had given automobile to nephew as evidence of nephew's authority to invite plaintiffs. Gallo v. Veliskakis (1970) 259 N.E.2d 568, 357 Mass. 602. Registration of automobile in name of corporate owner was prima facie evidence that corporation was legally responsible for conduct of driver, but was not evidence that owner had authorized driver to invite passenger to ride in automobile. Rowland v. Auto Service (1954) 123 N.E.2d 470, 332 Mass. 107. Evidence did not establish that owner of automobile who authorized husband of deceased to use it, invited deceased to ride in automobile or authorized husband to take deceased with him, and hence owner was not liable for injuries to deceased. Welch v. O'Leary (1934) 191 N.E. 377, 287 Mass. 69. Proof that automobile driver was in general employment of owner of automobile was not sufficient proof that driver was acting within employment. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413. Proof that automobile driver was in owner's general employ, and that driver was going to meet owner's husband, did not establish driver was acting within employment. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413. Uncontradicted testimony of driver and defendant showing driver was operating automobile without defendant's authority would not be binding on plaintiff and jury. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146. 30. ‑‑‑‑ Ownership, weight and sufficiency of evidence Dealer could not be held liable under agency theory for accident involving motorcycle bearing dealer's plate absent any evidence that motorcycle was in fact owned by dealer; plate alone did not import ownership, and evidence revealed that it was possible that driver had obtained plate indirectly through dealer's employee. Mitchell v. Hastings & Koch Enterprises, Inc. (1995) 647 N.E.2d 78, 38 Mass.App.Ct. 271, review denied 648 N.E.2d 1286, 420 Mass. 1102. Testimony of plaintiff that he saw defendant's insignia on truck from which a spare tire had fallen, striking plaintiff's following vehicle, was insufficient, without proof that defendant was owner of truck, to establish defendant's responsibility to plaintiff. Jacobs v. Hertz Corp. (1970) 265 N.E.2d 588, 358 Mass. 541. Evidence was sufficient to sustain findings that automobile involved in collision was owned by driver's mother under whose name vehicle was registered and that son had purchased automobile as agent of mother and was driving with her consent notwithstanding statements by mother and son to insurer that son had purchased automobile with his own money and that registration had been effected in mother's name only because son was a minor. Jertson v. Hartley (1961) 174 N.E.2d 663, 342 Mass. 597. In action by taxicab passenger against taxicab company and driver of taxicab for injuries sustained in automobile accident, wherein application for renewal of hackney licenses filed with police department by taxicab company was admitted in evidence, evidence was sufficient to establish that taxicab company was the owner of the vehicle involved in the accident and that it had properly registered the vehicle in its name. Lodge v. Congress Taxi Ass'n, Inc. (1960) 165 N.E.2d 94, 340 Mass. 570. In tort action for personal injuries sustained by plaintiff when he was knocked down by a passing automobile after getting out of his parked automobile, evidence sustained finding that defendant was the registered owner, if not the operator, of the automobile that struck plaintiff so as to be liable for plaintiff's injuries. Fallon v. Darney (1938) 15 N.E.2d 462, 300 Mass. 365. Evidence was insufficient to sustain finding automobile striking pedestrian was owned by defendant. Atlas v. Silsbury‑Gamble Motors Co. (1932) 180 N.E. 127, 278 Mass. 279. Evidence that name and address of the registrant of a motor vehicle involved in an accident are the same as the person on whom and the place at which the sheriff served the writ in the action, warrants a finding that defendant named in the writ is the same person as was served by the sheriff and who was involved in the accident. Albano v. Smith (App. Div. 1969) 43 Mass.App.Dec. 116. 31. ‑‑‑‑ Negligence, weight and sufficiency of evidence Evidence that defendant had expressed sorrow over accident and stated that medical bills would be taken care of showed natural expression of sympathy which had no probative value as admission of responsibility or liability in action for injury sustained by plaintiffs in automobile driven by defendant's nephew. Gallo v. Veliskakis (1970) 259 N.E.2d 568, 357 Mass. 602. That motorist came from direction automobile striking pedestrian had gone and stopped at scene of accident did not sustain finding he caused injury. Atlas v. Silsbury‑Gamble Motors Co. (1932) 180 N.E. 127, 278 Mass. 279. Mere happening of accident where circumstances immediately preceding it are left to conjecture, is not sufficient to prove negligence on part of operator of vehicle. Gowing v. Vita Pac Prepackaging Corp. (App. Div. 1962) 23 Mass.App.Dec. 174. Evidence was sufficient to prove identity of driver of truck and of his negligence so as to render him liable for personal injury and property damages sustained by plaintiff. Spina v. Lucas (App. Div. 1961) 20 Mass.App.Dec. 135. 32. Instructions Where defendant denied that his automobile was involved in collision, though plaintiffs identified registration number of colliding automobile as that of defendant's automobile, and liability for resulting injuries and property damage depended upon credibility of their testimony, this section and § 85B of this chapter, making evidence that colliding automobile was registered in name of defendant as owner prima facie evidence that it was being operated by and under the control of a person for whose conduct defendant was legally responsible, were not in point, and charge as to defendant's burden of proving that he was not responsible for control of colliding automobile or conduct of operator was objectionable as tending to confuse jury as to burden of proof on main issue of identity of colliding automobile. Decoteau v. Truedsson (1959) 162 N.E.2d 772, 339 Mass. 759. In action for injuries and property damage sustained in automobile collision, charge was insufficient to clearly and adequately instruct jury concerning principles applicable to main issue of whether other automobile involved in collision was that of defendant. Decoteau v. Truedsson (1959) 162 N.E.2d 772, 339 Mass. 759. In actions against express company for injuries sustained by plaintiffs when truck registered in defendant's name struck rear of parked automobile in which plaintiffs were sitting, defendant's request that there was no evidence that defendant's truck was operated by or under control of a person for whose conduct defendant was legally responsible, other than prima facie evidence that truck was registered in name of defendant as owner, was properly refused in view of evidence. Laskey v. Railway Exp. Agency (1950) 94 N.E.2d 256, 326 Mass. 339. In actions against express company for injuries sustained by plaintiff when truck registered in defendant's name struck rear of parked automobile in which plaintiffs were sitting, defendant's request that fact that driver at time of accident had been called on the two preceding days to take place of regular driver who was sick did not authorize driver to do any work for defendant on day of accident after regular driver had returned and was doing his regular work was properly refused under evidence. Laskey v. Railway Exp. Agency (1950) 94 N.E.2d 256, 326 Mass. 339. In actions against express company for injuries sustained by plaintiffs when truck registered in defendant's name struck rear of parked automobile in which plaintiffs were sitting, defendant's request that fact that driver at time of accident had been told by defendant's agent to report for work on day of accident did not authorize driver to do any work for defendant unless he was told what work he was to do was properly refused in view of evidence. Laskey v. Railway Exp. Agency (1950) 94 N.E.2d 256, 326 Mass. 339. In actions against express company for injuries sustained by plaintiffs when truck registered in defendant's name struck rear of parked automobile in which plaintiffs were sitting, defendant's request for a finding in its favor if its agent and cashier at its Melrose office had not authorized driver to be operating truck at time of accident was properly refused, since it was possible that driver might have been authorized to drive truck by some other duly empowered agent of defendant at some time and at some manner not disclosed. Laskey v. Railway Exp. Agency (1950) 94 N.E.2d 256, 326 Mass. 339. 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