Home RAYMOND J. LYNCH vs. HAROLD KAUFMAN, administrator (and three companion cases [Note 1]).

329 Mass. 762

May 2, 1952

Exceptions overruled. This is one of four actions of tort to recover for personal injuries and property damage sustained in a collision between a motor truck operated by one Roberts, an employee of Rand Express Freight Lines, Inc. (hereinafter called the defendant), and three other motor vehicles. A verdict was returned for the plaintiff in each case. The only exception argued relates to a question of evidence, and arose in these circumstances. At the pre-trial hearing it was stipulated by the parties that "an automobile owned by the defendant, Rand Express Freight Lines, Inc., was being operated by Earl G. Roberts who was in . . . [its] employ." Both at the pre-trial hearing and at the trial the defendant took the position that Roberts was not acting within the scope of his employment at the time of the accident. The plaintiffs introduced a certified copy of a New York registration certificate showing that the truck involved in the accident was registered in the defendant's name as owner. In an attempt to avoid the consequences of G. L. (Ter. Ed.) c. 231, Section 85A, the defendant sought to introduce evidence to the effect that the defendant was not an owner within the purview of Section 85A but was merely a lessee and that the definition of owner under the New York registration statute included lessees. The evidence was excluded on the ground that the defendant was bound by its pre-trial stipulation that it owned the truck involved in the accident. There was no error. Rule 57A of the Superior Court (1932). Capano v. Melchionno, 297 Mass. 1 , 14-15. Fanciullo v. B. G. & S. Theatre Corp. 297 Mass. 44 , 51. R. Dunkel, Inc. v. V. Barletta Co. 302 Mass. 7 , 9. The defendant at no time asked to be relieved from the stipulation, and there is nothing in the record to indicate that it was improvidently made or that in the interests of justice it ought to have been discharged. See Gurman v. Stowe-Woodward, Inc. 302 Mass. 442 , 448.


FOOTNOTES

[Note 1] The companion cases are Raymond J. Lynch vs. Rand Express Freight Lines, Inc., Edward F. Galanes vs. Rand Express Freight Lines, Inc., and Edward F. Galanes vs. Harold Kaufman, administrator.

Home NICHOLAS ORLIANZO vs. DANIEL DEFINIS & another.

329 Mass. 762

May 28, 1952

Orders denying jury issues affirmed. These are appeals from orders of the Probate Court denying jury issues in the matter of proof of the will of Constanzi DeFinis. The only issue argued is that of undue influence. Viewing the whole record and giving the decision of the probate judge the weight to

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which it appears to be entitled, we think that the expected evidence did not require the framing of that issue. The underlying principles have been recently restated. Laws v. Aschenbeck, 326 Mass. 7 , 11. Flynn v. Prindeville, 327 Mass. 266 . Morin v. Morin, 328 Mass. 33 , 34.