MARY KARPOWICZ vs. EDWARD J. MANASAS. SAME vs. ESTHER K. SEDER. GEORGE KARPOWICZ vs. EDWARD J. MANASAS. SAME vs. ESTHER K. SEDER.

SANDERSON, J. Two of these actions are by Mary Karpowicz, a minor seventeen years of age, to recover for injuries received on March 15, 1928, caused by the alleged negligence of the defendant Edward J. Manasas, the driver of the automobile owned by the defendant Seder. The actions of George Karpowicz are for consequential damages resulting from the injuries received by his daughter, Mary Karpowicz. The four actions, begun in 1928 and 1929, were tried together. The bill of exceptions states that there was evidence which would warrant the jury in finding that Edward J. Manasas, the operator of the automobile, was negligent. The defendant Seder admitted that the automobile involved in the accident was owned by her and that Manasas was in her employ as a chauffeur.

The plaintiff Mary Karpowicz testified, in substance, that, when about to cross the street on which she had been walking, she looked both ways and saw no automobile; that after leaving the curb she looked in one direction and saw no automobile and then looked in the other and saw the automobile in question far enough away so that she thought she could cross the street to go home; that, when about a third of the distance across, she suddenly heard the noise of the automobile and thought at first she would run back because she thought there would be "a chance" and she started back, taking about four steps, and when very close to the curb she was hit; she heard no horn but only the noise of the approaching automobile. The evidence tended to prove that the accident occurred close to

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the curbing on the left side of the street in the direction in which the automobile was being driven.

At the close of the plaintiffs' evidence the defendant Seder rested in the case of Mary Karpowicz and presented a motion for a directed verdict in that case. Her exception was saved to the denial of this motion. She also presented a similar motion in the case of George Karpowicz but apparently without resting. She gained no rights by the denial of the latter motion. Goodell v. Sviokcla, 262 Mass. 317, 318. The record states that the "defendants, Edward J. Manasas and Egnas J. Manasas, continued by evidence being presented on their behalf." At the close of all the evidence a motion for a directed verdict was made in each case where Manasas was named as defendant, and each motion was denied subject to the exception of the defendant. The motion for a directed verdict in the case of George Karpowicz against Seder was not renewed at the close of the evidence.

The motions for directed verdicts in so far as they were based upon the contention that no recovery can be had because the injured plaintiff was not in the exercise of due care must be overruled. Upon her own statement of the occurrence the question whether the defendants had maintained, the burden of proving her contributory negligence was for the jury. O'Connell v. McKeown, 270 Mass. 432, 435.

One of the principal contentions of the defendant Seder seems to be that § 85A added to G. L. c. 231 by St. 1928, e. 317, § 1, does not apply in either case against her, because in that of Mary Karpowicz there was no evidence that the automobile was registered in her name, and in the case of George Karpowicz the action is for consequential damages. In Wilson v. Grace, 273 Mass. 146, this court decided that an action for consequential damages does not come within the terms of the statute. The plaintiff George Karpowicz concedes that in his case against Seder the trial judge erred in ruling that because of this statute the burden was on the defendant to prove that the automobile was not being operated at the time of the accident by a person for whose acts she was legally responsible.

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The terms of the statute in so far as material are: "In all actions to recover damages for injuries to the 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." We interpret the statement in the bill of exceptions that there was no evidence that the automobile was registered in the name of Esther K. Seder to mean that no certificate of such registration was introduced and that no witness testified that it was so registered. The statute could hardly be interpreted to mean that, when evidence not believed by the fact finding tribunal is introduced, the foundation has been laid for the prima facie evidence to which the statute refers. The prima facie evidence rule would seem to be applicable only when the fact of registration is proved by the evidence. In Thomes v. Meyer Store Inc. 268 Mass. 587, the court said, at page 589, that the statute required the inference of the one fact from the proof of the others, and that the statute in the cases described makes registration of the motor vehicle in the name of the defendant as owner prima facie evidence of the further fact, and that "It is to be observed that the effect of this statute is to create certain specified facts when proved as prima facie evidence of a further important fact." In Wilson v. Grace, 273 Mass. 146, the court used this language at page 151: "It merely, as a matter of trial procedure . . . makes the fact that the automobile "was registered in the name of the defendant as owner prima facie evidence." In the case last cited the fact of registration was established by agreement of parties, not by the introduction of evidence. The statute requires motor vehicles to be registered in the name of the owner. G. L. c. 90, § 2. There was no evidence tending to prove that Mrs. Seder's motor vehicle was not

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properly registered. In this state of the evidence the jury would be bound to find in the case of Mary Karpowicz against Seder that the automobile was registered in the owner's name. Trombley v. Stevens-Duryea Co. 206 Mass. 516, 518. Such registration would be established by the undisputed evidence as to ownership and as to operation upon a public way by the owner's chauffeur, and the inference to be drawn therefrom based upon the fact that people generally obey the law and are therefore presumed to comply with the statutory requirements imposed upon them. The fact of registration being thus established, the statute is applicable. Doherty v. Ayer, 197 Mass. 241, 248. Trombley v. Stevens-Duryea Co., supra. Jubilee Yacht Club v. Gulf Refining Co. 245 Mass. 60, 62. The absence of responsibility on the part of the defendant Seder for the acts of her chauffeur would therefore by virtue of the statute become a matter of affirmative defence. Thomes v. Meyer Store Inc., supra. Wilson v. Grace, supra. The exception to the part of the charge in which the judge referred to the statute must be overruled in so far as the case of Mary Karpowicz against Seder is concerned, and the verdict not have been directed in the defendant's favor in that case.

The records of St. Vincent Hospital were introduced without any evidence to prove that the hospital was supported in whole or in part by contributions from the Commonwealth or from any town, or that it was an incorporated hospital offering treatment to patients free of charge or an incorporated hospital conducted as a public charity. In the absence of such evidence tending to bring the hospital within any of the designated classifications, the records were not admissible. G. L. c. 233, § 79; c. Ill, § 70. Delaney v. Framingham Gas, Fuel &Power Co. 202 Mass. 359, 365. Clark v. Beacon Oil Co. 271 Mass. 27, 29. Sullivan v. Morse, 271 Mass. 501, 503. The testimony of a doctor that he was in charge of the case at the hospital and that the entries and records were made under his supervision and direction did not make them competent evidence. The nature of the treatment of Mary

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Karpowicz and her medical history were shown in these records, and among the items for which George Karpowicz sought to recover was a bill of this hospital and a charge for medical treatment by a physician while his daughter was there. We cannot say that the substantial rights of the defendants were not injuriously affected by this error in the admission of evidence and the exception to its admission must be sustained.

In the action of Mary Karpowicz against Edward J. Manasas the defendant was described in the writ as "Edward J. Manasas, otherwise known as Egnas J. Manasas." When Edward J. Manasas was on the stand he admitted that he was the defendant in that case, but the contention is made in his behalf that he is not the defendant in the action by George Karpowicz in which the name of the defendant in the writ is stated to be Egnas J. Manasas. The only testimony to prove Egnas J. Manasas to be a person other than Edward J. Manasas was that of Edward J. Manasas who testified that Egnas J. Manasas was his father. Each writ was shown by the return to have been served by leaving a summons at the defendant's last and usual place of abode, 155 Vernon Street, Worcester. Jones v. Walker, 15 Gray, 353. Joyce v. Thompson, 230 Mass. 254. Edward J. Manasas testified that his home was at that number. No evidence was offered to prove that a man by the name of Egnas J. Manasas made his home at the same place. On September 9, 1930, a motion to amend the writ was filed in the case of George Karpowicz against Egnas J. Manasas by adding after that name the words "otherwise known as Edward J: Manasas," and this motion was allowed without objection on November 18, 1930. In the same case, on November 20, 1930, at the close of the defendant's argument, a motion was allowed, subject to the defendant's exception, amending the writ and declaration by striking out the name Egnas J. Manasas and leaving only the name of Edward J. Manasas as the defendant in the case. In this action the plaintiff was seeking consequential damages because of the injury to his daughter caused by the automobile driven by Edward J. Manasas.

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No one else by the name of Manasas so far as the evidence disclosed had anything to do with the accident. Edward J. Manasas appeared in the case by counsel and the same counsel appeared in the case in which Egnas J. Manasas was named as defendant. It is apparent from the whole course of the trial that the real defendant in this action for consequential damages, as in one of the actions for personal injuries, was Edward J. Manasas. The evidence would justify a finding that both writs were served by being left at the last and usual place of abode of Edward J. Manasas; that he knew, notwithstanding the error in the name, that the summons was meant for him. Edward J. Manasas admittedly was represented by counsel in the action for personal injuries. His liability for the accident was contested. He has been given every opportunity to defend his rights as fully as if he had been correctly named in the writ. He made no objection to being described in the first writ as "otherwise known as Egnas J. Manasas," nor to the amendment apparently made before or during the trial adding his name in a similar way as an alias in the case in which Egnas J. Manasas had been named in the writ. In all of the circumstances we think that the last amendment was justified to correct an error in the defendant's name and that he has been brought into court by process and not deprived of any of his legal rights by the amendment. Dindio v. Meshaka, ante, 112. Liddell v. Middlesex Motor Co., ante, 346, 352-353. Grannis v. Ordean, 234 U. S. 385, 394, 395. The case is distinguishable from Cohen v. Levy, 221 Mass. 336. The exception to the allowance of the motion to amend must be overruled.

In the case of George Karpowicz against Seder, the plaintiff was not entitled to the benefit of § 85A added to G. L. c. 231 by St. 1928, c. 317, and apart from that statute the evidence would not justify a finding that Manasas at the time of the accident was acting within the scope of his employment by the defendant. "The law of Massachusetts is well settled that proof that the driver of a motor vehicle was in the general employ of the defendant at the moment of the accident, and that the defendant was

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owner of the vehicle, is not enough to prove that the driver was then acting within the scope of his employment." Washburn v. R. F. Owens Co. 252 Mass. 47, 53. The additional fact that he was going to meet the husband of his employer would not be enough to prove that he was so acting. Fleischner v. Durgin, 207 Mass. 435. Hartnett v. Gryzmish, 218 Mass. 258, 261, 262. Vallavanti v. Armour & Co. 260 Mass. 417. Kwedares v. Knoel, 261 Mass. 91.

In the case of George Karpowicz against Seder the exception to the part of the charge in which the judge said, in substance, that there was evidence that Manasas was acting within the scope of his employment for the defendant at the time of the accident must be sustained. Because of the sustaining of this exception and of the exception to the admission of the hospital records, other exceptions need not be considered. The questions raised by them are not likely to be presented in the same way at another trial. In each case the entry must be

Exceptions sustained.