
    Melrose Appliance Center, Inc. & another vs. Eastern Erection Company, Inc. & another.
    July 2, 1968.
   This action of tort was brought to recover for damage allegedly sustained by the plaintiffs as the result of a fire in Melrose on July 12, 1960. The case was tried to an auditor who found for the plaintiffs against both defendants. At the jury trial the plaintiffs offered the auditor’s report and rested, as did the defendant Joseph Maggiore & Sons, Inc. (Maggiore). The defendant Eastern Erection Company, Inc. (Eastern) offered further evidence. The plaintiffs excepted to the denial of (1) motions for directed verdicts against both defendants; (2) certain requests; and (3) their motion for a new trial against the defendant Eastern, which the jury found not liable. The defendant Maggiore excepted to the denial of its motion for directed verdicts. There was error in denying the plaintiffs’ motions for directed verdicts against Maggiore. The auditor’s report, uncontradicted in any respect, was in evidence. In the circumstances of this case, all findings of fact on liability and damages were prima facie evidence possessing an artificial legal force which compelled the conclusion that the evidence was true and required “the judge to give effect to its unquestionable truth by a ruling or a direction to the jury.” Cook v. Farm, Serv. Stores, Inc. 301 Mass. 564, 566, and cases cited. See Clark v. Turke, 345 Mass. 516. The plaintiffs seek a new trial as against Eastern, arguing that the instructions to the jury so clouded the case against Eastern as it went to them that they returned verdicts which reflected their confusion. We agree. Substantial justice requires a new trial between the plaintiffs and Eastern. Tuttle v McGeeney, 344 Mass. 200, 208. Pilos v. First Natl. Stores Inc. 319 Mass. 475, 479. Maggiore’s exceptions are overruled. The plaintiffs’ exceptions to the denial of their motions for directed verdicts are sustained as to Maggiore and overruled as to Eastern. Judgments are to be entered on the auditor’s report in favor of the plaintiffs against Maggiore. There is to be a new trial between the plaintiffs and Eastern.

Edward J. Barshak for the defendant Joseph Maggiore & Sons, Inc.

Andrew G. Meyer (Wendell J. Leary with him) for the plaintiffs.

Joseph J. Walsh (William J. Dailey, Jr., with him) for the defendant Eastern Erection Co., Inc.

So ordered.  