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
There was evidence that on October 23, 1927, an automobile owned by Morris Wilson was struck on a public way by 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 $400 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 were 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 ease brought by Sophie Wilson was denied rightly.
St. 1928, c. 317, § 1, added a new 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
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,
The defendant set up in his answer the affirmative defence 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
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.
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,
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 Grace was under sixteen years of age so that he could not have been licensed to operate motor vehicles and could not have operated one legally without a license. G. L. c. 90, §§ 8, 10. But the only evidence of the age of Louis Grace was his testimony, which the jury might have disbelieved. Furthermore, even if this testimony was believed, the presumption of the defendant’s innocence was not evidence to be weighed against the prima facie evidence that Louis Grace was operating the automobile as the agent of the defendant, acting within the scope of his authority. Duggan v. Bay State Street Railway,
2. The motion for a directed verdict on count one of the declaration in the case brought by Morris Wilson was denied rightly. This count is “ to recover damages for injuries ... to property,” within the meaning of § 85A,
The motion for a directed verdict on count three of this declaration, however, should have been granted. The case stated in this count — to recover the plaintiff’s medical expenses incurred by reason of his wife’s injuries — is not within G. L. c. 231, § 85A. In view of the construction of similar words in earlier statutes, of which the Legislature must be taken to have been cognizant, the phrase “ damages for injuries to the person ” must be interpreted to mean damages which are the result of a direct injury to the person of the plaintiff and not to include those which, as here, were sustained by the plaintiff in consequence of direct injury to the person of another. Harwood v. Lowell,
The plaintiff’s burden, under count three, of proving that Louis Grace was the agent of the defendant was not sustained." Apart from the statute, ownership of the automobile by the defendant and registration in his name as owner were not sufficient to prove the agency of the operator. Trombley v. Stevens-Duryea Co., supra. Nash v. Lang,
In the case brought by Sophie Wilson the exceptions must be overruled. In the case brought by Morris Wilson the verdict on counts one and three was for $340, but it was agreed by the parties at the argument that if a verdict for the defendant ought to have been directed on the third count judgment should be entered for the plaintiff for $15. It follows that judgment must be so entered.
So ordered.