Opinion
November 29, 1944.
J.L. Fitzpatrick, for the defendant.
A.F. Lyon, for the plaintiff.
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.