(DOWNLOAD) "Ballou v. Fitzpatrick" by Supreme Court of Minnesota ~ Book PDF Kindle ePub Free
eBook details
- Title: Ballou v. Fitzpatrick
- Author : Supreme Court of Minnesota
- Release Date : January 28, 1933
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
RUGG, Chief Justice. This is an action of tort wherein the plaintiff seeks to recover compensation for personal injuries and for damage to property resulting from a collision between her automobile driven by her husband and an automobile driven by the defendant. The case was referred to an auditor without provision that his findings of fact should be final. See Merrimac Chemical Co. v. Moore, 279 Mass. 147, 181 N.E. 219. Parties did not avail themselves of trial by jury. The case was marked for hearing at a jury-waived session of the court. No reservation was made by either party of the right to introduce further evidence. No evidence except the report of the auditor was introduced. Each party filed a motion for the entry of a favorable judgment on the auditors report. All this was in conformity to Rule 88 of the Superior Court (1932), which differs in material particulars from the pre-existing rule touching motion for judgment on an auditors report. What was said concerning such a motion under Rule 30 of the Superior Court (1923) in Wheeler v. Tarullo, 237 Mass. 306, 309, 310, 129 N.E. 610, is no longer applicable. Under the present rule a trial before a Judge upon the report of the auditor as the only evidence is contemplated. See Fisher v. Drew, 247 Mass. 178, 180, 141 N.E. 875, 30 A. L. R. 798. Superior Court Rules (1932) Annotated, page 273. An auditors report is prima facie evidence upon such matters as are embraced in the order of reference. G. L. (Ter. Ed.) c. 221, § 56. When it is the only evidence introduced, it cannot be disbelieved as may the uncontradicted evidence of a witness; it warrants and may even require a judgment in accordance with its Conclusion. Inhabitants of Wakefield v. American Surety Co. of New York, 209 Mass. 173, 176, 95 N.E. 350; Barrell v. Paine, 236 Mass. 157, 162, 128 N.E. 17; Lovell v. Commonwealth Thread Co., 280 Mass. 243, 182 N.E. 364. An auditors report, however, must be weighed like other evidence when a case is tried upon that report alone without other evidence. Circumstances and facts may be set forth in the report susceptible of supporting a different final Conclusion from that reached by the auditor. Where facts appear on the face of the report warranting more than one inference, it is open to the trial Judge or to the jury to draw whichever one appears the more reasonable. Fisher v. Doe, 204 Mass. 34, 41, 90 N.E. 592. The question of law presented by the plaintiffs exceptions, therefore, is whether the trial Judge, on a hearing restricted to the report of the auditor as the only evidence, committed reversible error in refusing to enter judgment in favor of the plaintiff and in ordering judgment for the defendant.
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