Mendolia v. White
| Decision Date | 24 February 1943 |
| Citation | 313 Mass. 318,47 N.E.2d 294 |
| Parties | MENDOLIA v. WHITE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; F. W. Fosdick, Judge.
Action by Frank Mendolia, administrator of the estate of Angelo J. Mendolia, deceased, against Francis J. White, to recover for death of decedent in an automobile collision. Verdict was for plaintiff, and defendant brings exceptions.
Exceptions sustained.
Before FIELD, C. J., and LUMMUS, DOLAN, COX, and RONAN, JJ.
M. E. Viola, of Boston, and J. R. Corish, of Somerville, for plaintiff.
J. M. Graham, of Boston, for defendant.
One MacDonald asked the intestate, Angelo J. Mendolia, if he could take his automobile the next day for the purpose of visiting MacDonald's aunt, who lived in Raynham. Mendolia said that as he had nothing to do he would go along on the trip. Mendolia, according to the arrangements made the previous day, met MacDonald and with him drove to a hospital where a woman nurse, who was a friend of Mendolia, got into the automobile. They then proceeded to Attleboro where a woman friend of MacDonald joined the party. After a visit to MacDonald's aunt in Raynham they returned to Attleboro for the purpose of leaving MacDonald's friend at her home, and from there started, at about midnight, on the return trip to Boston. MacDonald asked Mendolia if he could drive. Mendolia stopped the automobile and then sat on the front seat at the right of the nurse. MacDonald left the rear seat and took his position back of the steering wheel. He was operating the automobile when it became involved in a collision in Boston with another automobile operated by the defendant. Mendolia was so severely injured that his death resulted. The defendant excepted to the refusal of the judge to permit him to ask MacDonald if he would have driven the automobile to his home, or to Mendolia's home, or to the hospital if Mendolia had requested him to do so; to the denial of two requests for instructions, one to the effect that Mendolia as the owner had the right of control of the automobile and there was no evidence that he had surrendered such right to MacDonald at the time of the accident, and the other, in substance, that if MacDonald was negligent and such negligence contributed to the accident, then the plaintiff could not recover; and to parts of the charge that were inconsistent with these two requests. The jury returned a verdict for the plaintiff.
The negligence of the operator of an automobile in which the owner is travelling is chargeable to the latter, in an action against a third person by the owner to recover damages, if at the time of the injury the owner had the right to control the operation of his automobile. The right to control the use of a chattel is one of the attributes of ownership and is possessed by the owner unless he has parted with it by a sale, bailment, loan or some other disposition of the chattel or unless there has been a contractual surrender or an abandonment of it to the person who is using the chattel. An informal agreement between the owner of an automobile and one who casually or voluntarily happens to be operating it while the owner is an occupant, as distinguished from an agreement with one who is regularly employed for compensation to operate it, seldom contains any reference to this matter of control and whether there has been a transfer from the owner to such an operator must frequently rest in the inferences that may be properly deduced from the conduct of the parties. Little more appears in this record than the bald fact that Mendolia granted MacDonald's request and permitted him to operate the automobile. Of course, that put MacDonald in charge of the steering and motive mechanism, but that fact by itself would be insufficient to show that in driving the automobile he was free from the supervision or direction of Mendolia. If the owner retained the power to control the operation of his automobile, then he was free to give such directions as he saw fit to the driver. There was evidence that Mendoliagave no directions or instructions to MacDonald, but the record does not disclose how long or...
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Miller v. United States
...possessed by the owner unless he has parted with it by surrender, abandonment, or otherwise, to the person using it. Mendolia v. White, 1943, 313 Mass. 318, 47 N.E.2d 294. The right of control as an incident of ownership continues in the owner-occupant in the absence of evidence that it has......
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Horowitz v. Bokron
...amplification and clarification of a part of the charge 1 in various respects, inviting the judge's attention to Mendolia v. White, 313 Mass. 318, 47 N.E.2d 294, and Menzigian v. LaRiviere, 334 Mass. 610, 137 N.E.2d 925. His exceptions were sufficient to 'put before us the full contest of t......
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