Guerin v. Mongeon

• Court: Rhode Island Supreme Court
• Writing for the Court: STEARNS, J.
• Citation: Guerin v. Mongeon, 49 R.I. 414, 143 A. 674 (R.I. 1928)
• Decision Date: 30 November 1928
• Parties: GUERIN v. MONGEON.

143 A. 674

GUERIN

v. MONGEON.

Supreme Court of Rhode Island.

Nov. 30, 1928.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Julia Guerin against Cyrille Mongeon. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted, with direction.

John R. Higgins, of Woonsocket, for plaintiff.

Raphael L. Dalgnault, of Woonsocket, for defendant.

STEARNS, J. This is an action for negligence to recover damages for personal injuries. Plaintiff, a passenger in an automobile on Clinton street, in Woonsocket, was injured as a result of a collision between the automobile in which she was riding and an automobile owned by defendant and operated by his son Norman. After a jury trial, and a verdict for the plaintiff, defendant's motion for a new trial was denied by the trial justice. The case is here on bill of exceptions.

The one exception relied upon is to the refusal to direct a verdict for the defendant. The other exceptions are waived. The real controversy is with respect to the liability of defendant; negligent operation is clearly proved.

Norman Mongeon, at the time of the accident (July 16, 1927), worked in his father's grocery store, serving customers and delivering such orders as were required. On the night of the accident, defendant returned to his store about 6:30 p. m. He had been busy during the day attending to his real estate business, and left his automobile on the street in front of the store, as he had often done before. He remained in the store while his son went out to deliver an order of groceries. His son took defendant's automobile and set out to deliver the groceries. After he had gone a short distance, he met some friends, and, at their request, agreed to take them to their home, which was a mile distant, in a direction away from the route he should have taken to make his delivery. It was while he was thus engaged that the collision occurred.

Defendant testified that his son had no authority to use his automobile and that he had forbidden him to use it, although he admitted that his son had used it on several occasions before this time. The evidence of the right of the son to use the automobile was conflicting, and was a question of fact. Assuming, however, that the son did have the right to use the automobile, at the time when the collision occurred he was engaged on his own business, and not that of his father, his employer; he had departed for the time being from the course of his employment. Under the rules of the common law, his father, his employer, was not then responsible for his negligence. Colwell v. Ætna Bottle & Stopper Co., 33 R. I. 531, 82 A. 388; Northup v. Robinson, 33 R. I. 496, 82 A. 392; Anderson v. Miller (R. I.) 142 A. 616. But, as this accident happened after the enactment in April, 1927, of chapter 1040, Pub. Laws 1927-28, the liability of the owner of the automobile must now be determined by the provisions of that statute, in conjunction with such rules of the common law as are applicable.

Section 3, chapter 1040, is as follows:

"Sec. 3. Whenever any motor vehicle shall be used or operated upon any public highway of this state with the consent of the owner or lessee or bailee thereof, express or implied, or under any agreement with such owner or lessee or bailee, express or implied, the operator...