
    Harvey Newgent vs. Colonial Contractors & Builders, Inc.
    Middlesex.
    December 9, 1964.
    March 1, 1965.
    Present: Wilkins, C.J., Whittemore, Cutter, Kirk, & Rearbon, JJ.
    
      Practice, Civil, Action transferred to District Court, New trial, Requests, rulings and instructions. Evidence, Prima facie evidence. Law or Pact.
    
    Upon retransfer of an action to the Superior Court for trial following that court’s transfer of it to the District Court pursuant to Gr. L. c. 231, § 102C, the effect of the District Court judge’s decision of the action as “prima facie evidence upon such matters as . . . [were] put in issue by the pleadings” was a question of law which could be raised at the trial in the Superior Court, and, where it was not raised there, failure of the Superior Court judge to deal with it was not ground for securing a new trial as of right. [584r-585]
    Where an action was retransferred to the Superior Court for trial following that court’s transfer of it to the District Court pursuant to Gr. L. c. 231, § 102C, and during the Superior Court trial the defendant’s counsel stated that the District Court judge had found for the defendant and the Superior Court judge then told the jury that he would explain to them later “just what relation that has to what we are doing here,” but thereafter the effect of the District Court decision was not raised by counsel nor dealt with by the judge, and there was a verdict for the plaintiff, there was no abuse of discretion in the denial of a motion by the defendant for a new trial grounded on “the failure of the Court to instruct the jury that the . . . [decision] of the District Court was prima facie evidence in favor of the defendant.” [585]
    Contbact. Writ in the Superior Court dated June 19, 1961.
    Following transfer to the Second District Court of Eastern Middlesex and retransfer to the Superior Court, the action was tried before Oourdin, J.
    
      John W. Lynch for the defendant.
    
      Francis B. McNamara, Jr., for the plaintiff.
   Kiek, J.

This action of contract for a real estate broker’s commission was commenced in the Superior Court, and thereafter, under G-. L. c. 231, § 102C (inserted by St. 1958, c. 369, § 3), was transferred for trial to the appropriate District Court where a findingwas made for the defendant. Neither party claimed a report to the Appellate Division. There is no suggestion that any error of law was committed in the District Court. Upon request of the plaintiff, under Gr. L. c. 231, § 102C, the case was retransferred to the Superior Court for trial by jury. The judge did not charge, was not requested to charge, and no exception was taken to his omission to charge the jury, as the statute provides, that the decision of the District Court1 ‘ shall be prima facie evidence upcm'such matters as are put in Issue by the pleadings. ’ ’

The jury returned a verdict for the plaintiff. The defendant seasonably filed a motion for a new trial because of “the failure of the Court to instruct the jury that the verdict of the District Court was prima facie evidence in favor of the defendant. ’ ’ The defendant’s exception to the denial of its motion raises the only question in the case. The defendant contends that the failure to charge the jury as provided in the above quoted language of the statute deprived the Superior Court of jurisdiction. It argues that a jury in the Superior Court cannot proceed to a verdict unless the decision or finding of the District Court judge is before the jury with an explanation of its legal effect. We have considered the contention, and find no merit in it.

In Lubell v. First Natl. Stores, Inc. 342 Mass. 161, 163-164, the court concisely stated the objectives,'mechanics and operational effect of Gr. L. c. 231, § 102C, and, at page 165, referred to St. 1960, c. 303, in amendment thereof. Specifically, it was said, beginning on page 163: “ (3) The 6 decision,’ in the event of retransfer, is to be prima facie evidence in the Superior Court. (4) No other ‘findings’ ofthe District Court judge shall be admissible as evidence in the Superior Court. This- fourth point distinguishes *102C from Gr. L. (Ter. Ed.) c. 221, § 56, relating to reports of auditors, where the phrase, ‘prima facie evidence,’ also appears.”

The distinction between the report of an auditor and the decision of a District Court judge is obviously important. Under Gr. L. c. 221, § 56, the auditor makes only findings of fact, not rulings of law, and his report is subject to review by the court which appointed him so that findings of fact “based upon an erroneous opinion of law, or upon inadmissible evidence,” may be excluded from consideration by the jury. Under Gr. L. c. 231, § 102C, however, “the decision of the District Court judge, ... so far as admissible . . . would consist of a very few words . . . [and] would.be evidence warranting a finding for the” party who prevailed in the District Court. “His decision might be based upon an alleged error of law, such as the admission or exclusion of evidence, or . . . the denial of requests.” Lubell v. First Natl. Stores, Inc. 342 Mass. 161,164. Accordingly, it was held, in effect, in the Lubell case, that the Legislature must have intended, in the light of constitutional requirements, that the decision of the District Court judge, to be admissible in the Superior Court as prima facie evidence, must be the result -of a trial in the District Court where no report was claimed or where, on review by the Appellate Division, no reversible error was found. It was decided also that the review of issues of law raised at the District Court trial was appropriately in the Appellate- Division and ultimately, if need be, in this court after trial in the Superior Court upon retransfer.

At the trial in the District Court of the case now before us, no question of law was saved. Therefore, upon re-transfer of the case to the Superior Court, the decision of the District Court judge was admissible and was-entitled to be weighed by the jury as “prima facie evidence upon such matters as . . . [were] put in issue by the pleadings.” It does not follow, however, that the defendant should be granted a new trial for want of an instruction as to the evidential value of the decision of the District Court judge. The case was in the Superior Court for trial on the merits, subject to the practices and procedures which govern trials in that court, one of which is that “ [q]uestions of law which might have been raised at the trial on the merits . . . cannot be raised as of right on a motion for a new trial.” Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152, 154. The value of the District Court judge’s decision, as prima facie evidence, was a question of law. 1 ‘ That expression has acquired a definite legal meaning in this Commonwealth.” Cook v. Farm Serv. Stores, Inc. 301 Mass. 564, 566. If the defendant wanted an instruction given to the jury as to its meaning it should have asked for it in the form of a request, or, at the end of the charge, invited the judge’s attention to the omission. Sawyer v. Worcester Consol. St. Ry. 231 Mass. 215, 219. It did neither. It cannot now as of right demand a new trial because of the omission. The issue is not one of jurisdiction but is one of trial practice.

"What we have said disposes of the issue of law raised. We add a word about the discretionary aspect of the motion for a new trial. During the trial, the defendant’s counsel stated that the case had been tried in the District Court and that a finding for the defendant had been made. The judge then told the jury that he would explain to them later “just what relation that has to what we are doing here.” Before the arguments, the judge asked if there were any requests. The defendant’s counsel replied that he had none. After the charge, the judge said, “Gentlemen, if I have overlooked anything I will be glad to hear you.” The reply of the defendant’s counsel related only to the agreed amount of damages. No abuse of discretion in the denial of the motion can be found in these circumstances.

Exceptions overruled.  