(dissenting, with Liacos and Abrams, JJ., joining). I dissent. The court is simply wrong in concluding that the first trial judge considered that a finding of agency was compelled. She never said that it was compelled. In fact, all that the first trial judge said material to the issue was that “[t]his prima facie evidence (of agency) was not controverted by the defendant at the trial of this matter.” This statement is accurate. The “controverting” evidence came from the plaintiff, who “testified that the car was leased by the driver from the defendant, the car’s registered owner.” Though the source of the evidence is immaterial for purpose of determining whether there was any evidence, as the opinion points out, the judge was correct in noting that the evidence of the lease relationship was supplied by the plaintiffs testimony. Such a factor is highly material in determining whether the judge made an erroneous finding. She was not compelled to believe such testimony. As a trier of fact, she was free to accept or reject this testimony in much the same way as a jury would be free to accept or reject testimony.
If it is possible to single out the one blatantly erroneous statement in the court’s opinion it has to be: “[T]he Appellate Division had before it a case in which the judge had ruled erroneously that she was legally compelled to find the defendant responsible for Harrison’s gross negligence despite strong indications in the evidence that the only relationship between the defendant and Harrison was that of bailor and bailee.” Ante at 663-664. *665This statement is not supported by the record. The trial judge correctly interpreted the provisions of G. L. c. 231, § 85A. The trial judge also found that the motor vehicle was registered in the name of the defendant at the time of the accident. The judge’s findings indicate that the force of the statutory prima facie evidence of agency had not been overcome. The evidence presented failed to persuade her that the agency created by registration of the motor vehicle in the name of the defendant was sufficiently rebutted. See Nugent v. Classic Car Corp., 379 Mass. 913 (1979). See also P.J. Liacos, Massachusetts Evidence 50-51 (5th ed. 1981). Although the plaintiff’s statements as to the lease of the motor vehicle from the defendant were evidence, that evidence does not warrant a conclusion that the judge’s findings were clearly erroneous. See Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974); Freyermuth v. Lutfy, 376 Mass. 612, 615 (1978). The first trial judge committed no error.
The effect of today’s opinion is to eviscerate G. L. c. 231, § 85A, and, without trying to vaticinate, I believe this opinion may well return to haunt us.