Ferreira v. Franco Et Al. (Seven Cases‪)‬

FIELD, J. These are eight actions of tort brought by children, ranging from two to fourteen years of age, by their next friends, to recover damages for personal injuries. (One case is now being prosecuted by the administrator of the original plaintiff.) On July 4, 1928, a wagon in which these children were sitting was struck by a motor truck then being operated on a public highway. The wagon was upset and the children were thrown out and injured. The cases were tried in May, 1930. The defendants made motions for directed verdicts which were denied and there was verdicts for the plaintiffs. The cases come before us on the exceptions of the defendants to the denial of these motions and to the admission of evidence. The bill of exceptions states: 'The negligent operation of the truck and the due care of the plaintiffs was conceded. No question arises as to the pleadings. It was admitted by the defendants that at the time of the accident one Manuel Coelho an employee of the defendants was operating the automobile truck and that the automobile was owned by the defendants and registered in their names at the time of the accident.' The motions for directed verdicts were denied rightly. The only question at issue was whether the defendants were legally responsible for the conduct of Manuel Coelho, who was operating their truck at the time of the accident. As the trial took place after September 1, 1928, section 85A, added to G. L. c. 231 by St. 1928, c. 317, § 1, was applicable; see section 3. Smith v. Freedman, 268 Mass. 38, 167 N.E. 335. Wilson v. Grace, 273 Mass. 146, 173 N.E. 524. The defendants set up in the answer in each case, as an affirmative defense, the absence of such responsibility. By force of the statute, the defendants' admission that at the time of the accident the motor truck was owned by them, registered in their names and operated by Coelho, was prima facie evidence that they were legally responsible for his conduct, and the burden of proving the contrary rested upon them. They introduced evidence tending to show that Coelho had no license to operate motor vehicles, and that when the accident occurred, though he was their employee, he was not acting within the scope of his employment. If believed, this evidence warranted a finding that the prima facie evidence was overcome and the affirmative defense established. But the evidence was oral and even if contradicted only by the prima facie evidence might be disbelieved by the jury. Thomes v. Meyer Store, Inc. (Mass.) 168 N.E. 178; Haun v. LeGrand (Mass.) 168 N.E. 180; Wilson v. Grace, supra. Therefore, it could not have been ruled as matter of law that the defendants were not legally responsible for Coelho's conduct. Whether, apart from the statute, the evidence warranted a finding that Manuel Coelho was acting forof the truck and the due care of the plaintiffs was conceded. No question arises as to the pleadings. It was admitted by the defendants that at the time of the accident one Manuel Coelho an employee of the defendants was operating the automobile truck and that the automobile was owned by the defendants and registered in their names at the time of the accident.'