
    Emery R. Williams vs. Benton Park Package Store, Inc.
    September 24, 1973.
    
      Louis Kerlinsky for the plaintiff.
    
      Thomas J. Donoghue for the defendant.
   This is an action of contract for breach of warranty arising out of the sale of a can of beer containing an insect. The case was tried to a District Court judge after having been transferred to the District Court under the provisions of G. L. c. 231, § 102C. There was a finding for the plaintiff in a nominal amount. At the trial in the Superior Court upon retransfer, the finding of the District Court was admitted in evidence, and there was testimony that the plaintiff drank some of the beer, observed an insect in the beer can and shortly thereafter became ill. At the conclusion of the plaintiffs case the judge, subject to the plaintiffs exception, directed the jury to return a verdict for the defendant. The only question for our decision is whether that action by the judge was correct. The decision of the District Court was “prima facie evidence upon such matters as are put in issue by the pleadings” (G. L. c. 231, § 102C) and was evidence warranting a verdict for the plaintiff. Lubell v. First National Stores, Inc. 342 Mass. 161, 164 (1961). See Fulton v. Gauthier, 357 Mass. 116, 118 (1970). The case should have been submitted to the jury.

Exceptions sustained.  