[Download] "Epstein v. Simco Trading Co." by Supreme Judicial Court of Massachusetts " eBook PDF Kindle ePub Free
eBook details
- Title: Epstein v. Simco Trading Co.
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 25, 1937
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
QUA, Justice. This is an action for personal injury caused by the negligence of the driver of an automobile truck in which the plaintiff was riding. The defendant has raised and argued only two questions, although these are presented by the record in various forms. The questions are whether there was any evidence to support the findings of the jury (1) that the driver of the truck was acting as the servant of the defendant, and (2) that the plaintiff was riding as a 'business invitee' and not as a guest of the defendant. The case was tried upon an auditor's report and upon oral evidence which the defendant had reserved the right to introduce in accordance with Rule 88 of the Superior Court (1932). The auditor found in favor of the plaintiff on both issues. His findings of fact were prima facie evidence at the trial. G.L.(Ter.Ed.) c. 221, § 56; Ballou v. Fitzpatrick, 283 Mass. 336, 338, 186 N.E. 668. If we assume, but without intimating any opinion, that, as the defendant contends, testimony by the plaintiff himself at the trial necessarily inconsistent with the auditor's finding would bind the plaintiff and destroy the auditor's report, we do not discover that there was such testimony. It follows that the findings of the jury were warranted unless the subsidiary findings of the auditor are such as to vitiate his ultimate findings. Robinson v. Hooker, 174 Mass. 490, 55 N.E. 178; Brooks v. Davis (Mass.) 1 N.E.2d 17; Kohutynski v. Kohutynski (Mass.) 5 N.E.2d 345.