317 Mass. 771

November 29, 1944

Exceptions overruled. This is an action of tort to recover compensation for personal injuries sustained by the plaintiff while riding as a gratuitous guest in an automobile owned and operated by the defendant. The case was referred to an auditor. After his report was filed the plaintiff was permitted to amend her declaration by adding a third count based on the allegation that the defendant's automobile was illegally registered. The case was tried to a jury on the auditor's report and other evidence. The defendant excepted to the admission of the report in evidence because the third count had not been before the auditor. There was no error in this respect. The auditor's report was competent evidence on the counts which were before him. The jury returned a verdict for the plaintiff on the first count based on gross negligence and on the third count. Under leave reserved the judge entered a verdict for the defendant on the third count. To the denial of her motion for entry of verdict for her on the first count the defendant excepted. There was no error. The ultimate findings of the auditor that the defendant was grossly negligent at the time of the accident and that the plaintiff was then in the exercise of due care were not inconsistent with any of his subsidiary findings and hence remained evidence throughout the trial and were sufficient to require the submission of the case to the jury on the first count, the second count having been waived. Cook v. Farm Service Stores, Inc. 301 Mass. 564. There was no error in the denial of the defendant's motion for a new trial since no abuse of discretion is shown.


317 Mass. 771

December 7, 1944

Exceptions overruled. Judgment for the defendant. This is an action of tort brought in the Superior Court by three minors by their next friends to recover compensation for personal injuries alleged to have been caused by wanton, wilful and reckless operation of a motor vehicle by the defendant, its agent, servant or employee. There are also counts for consequential damages. The plaintiffs excepted to the direction of a verdict for the defendant. There was evidence that the minor plaintiffs were injured as a result of jumping from an automobile, owned and operated by one Pappalardo and registered in his name, upon which the minor plaintiffs were riding. It is agreed that they "were trespassers as to him." There was evidence that at the time the minor plaintiffs were injured said Pappalardo was collecting premiums for the defendant. But whether or not the evidence warranted a finding that wanton, wilful and reckless conduct of Pappalardo had a causal relation to the injuries sustained by the minor plaintiffs, the evidence did not warrant a finding that the defendant was legally responsible for such conduct. See Hardaker's Case, 274 Mass. 7; Child's Case, 274 Mass. 97. The evidence that the "defendant carried a so-called non-ownership liability policy insuring the defendant against liability

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to it arising from the operation of motor vehicles by its agents," with the other evidence in the case, did not warrant such a finding. See Salsman v. Frisch, 276 Mass. 228; Hannon v. Schwartz, 304 Mass. 468, 470.