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ri/11077925.json

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+"{\"id\": \"11077925\", \"name\": \"William B. GALLOWAY v. ROGER WILLIAMS UNIVERSITY\", \"name_abbreviation\": \"Galloway v. Roger Williams University\", \"decision_date\": \"2001-05-25\", \"docket_number\": \"No. 2000-25-Appeal\", \"first_page\": \"148\", \"last_page\": \"150\", \"citations\": \"777 A.2d 148\", \"volume\": \"777\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:29:43.115312+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present WILLIAMS, C.J., BOURCIER, FLANDERS, and GOLDBERG, JJ.\", \"parties\": \"William B. GALLOWAY v. ROGER WILLIAMS UNIVERSITY.\", \"head_matter\": \"William B. GALLOWAY v. ROGER WILLIAMS UNIVERSITY.\\nNo. 2000-25-Appeal.\\nSupreme Court of Rhode Island.\\nMay 25, 2001.\\nAnthony F. Muri, Providence, For Plaintiff.\\nMark Nugent, Moira E. Reynolds, Providence, Paul V. Sullivan, For Defendant.\\nPresent WILLIAMS, C.J., BOURCIER, FLANDERS, and GOLDBERG, JJ.\", \"word_count\": \"1212\", \"char_count\": \"7738\", \"text\": \"OPINION\\nPER CURIAM.\\nThis case came before the Supreme Court on April 3, 2001, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The plaintiff, William B. Galloway (plaintiff or Galloway), has appealed the entry of summary judgment with respect to negligent misrepresentation, fraudulent misrepresentation, breach of contract and promissory estoppel against the defendant, Roger Williams University (defendant or university). After hearing the arguments of counsel and reviewing the record and memoranda submitted by the parties, we are of the opinion that cause has not been shown. We shall therefore decide the issues raised on appeal at this time.\\nIn June 1991, plaintiff was hired initially as director of admissions for the university. Later that year he was named dean of admissions. In 1994, plaintiff was present ed with the university's personnel policy manual and signed an acknowledgment of its receipt. The manual provides in part:\\n\\\"The contents of this Manual are not to be construed as a part of any employment agreement with an employee and do not alter labor agreement provisions. Any employee [sic] employment and compensation can be terminated by the University or the employee at any time with or without notice and cause. Additionally, the policies and practices described herein are subject to change unilaterally without notice to employees by the University as deemed advisable and/or necessary.\\\"\\nIn a separate section entitled \\\"Employee Discipline and Termination,\\\" the manual states that, notwithstanding any other provision of the personnel policy, \\\"the University reserves the right to terminate any individual's employment and compensation at any time, for any cause, with or without notice.\\\"\\nIn 1993, Anthony Santoro (Santoro) became the president of the university. According to Galloway, his relationship with Santoro began harmoniously but became strained over time. The plaintiff maintained that this deterioration began in February 1995, when he and Santoro disagreed about admissions standards. The dispute arose because Santoro was against accepting students whose Scholastic Aptitude Test (SAT) scores fell below 750. Galloway did not agree with this litmus test, and maintained that each student should be evaluated individually and not exclusively on SAT scores. Galloway argued that the university also should consider other barometers of a student's potential, including teacher recommendations, learning disabilities and whether the candidate spoke and read English as a second language. Another dispute took place between plaintiff and Santoro at an admissions committee meeting in February 1996. At this meeting, plaintiff offered prospective students for admission and/or scholarships. Every student that Galloway presented was rejected by San-toro and the other committee members. Galloway maintained that he was then invited into Santoro's private office and asked why he was pushing so hard for these prospective candidates. The plaintiff maintained that he subsequently was advised by the vice president of finance at the university to stop disagreeing with Santoro.\\nThe plaintiff maintained that in March 1996, he met with Michael Schipper (Schipper), vice president of human resources, to inquire whether he was in danger of being terminated. Schipper, according to Galloway, assured him that his job was secure. During this same time frame, plaintiff was approached by a search firm engaged in filling the position of dean of admissions at Newbury College in Brookline, MA. Galloway informed the firm that he was not interested in pursuing a new position because he was happy with his present employment at the university. The plaintiff further alleged that at a meeting on June 1, 1996, Santoro informed him that he would be reappointed to his position as dean of admissions for the next academic year. However, on July 1, 1996, plaintiff's employment with the university came to an abrupt end.\\nIn September 1996, plaintiff filed an action in Superior Court alleging negligent misrepresentation, fraudulent misrepresentation, breach of contract and promissory estoppel. On November 2, 1999, a justice of the Superior Court granted defendant's motion for summary judgment on all claims in the complaint on the ground that plaintiff was an at-will employee and, therefore, the action could not be sustained. Final judgment was entered on November 17, 1999. Galloway has appealed.\\nDiscussion\\nOn appeal, plaintiff contended that the motion justice impermissibly engaged in issue resolution in granting the university's motion for summary judgment. Additionally, Galloway asserted that his arguments with respect to the tort, estoppel and contract claims were sustainable notwithstanding the fact that he was an at-will employee of the university. We deem these claims to be without merit.\\nThe law in Rhode Island is well settled that this Court will review a grant of summary judgment on a de novo basis. Marr Scaffolding Co. v. Fairground Forms, Inc., 682 A.2d 455, 457 (R.I.1996). \\\"In conducting such a review, we are bound by the same rules and standards as those employed by the trial justice.\\\" M & B Realty, Inc. v. Duval, 767 A.2d 60, 63 (R.I.2001) (citing Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996)). The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of a factual dispute. See Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996). This Court has held that we will affirm a grant of summary judgment if, after reviewing the evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and plaintiff is entitled to judgment as a matter of law. See Woodland Manor III Associates v. Keeney, 713 A.2d 806, 810 (R.I.1998).\\nThe law in Rhode Island is clear that employees such as plaintiff \\\"who are hired for an indefinite period with no contractual right to continued employment are [considered] at-will employees [who are] subject to discharge at any time for any permissible reason or for no reason at all.\\\" DelSignore v. Providence Journal Co., 691 A.2d 1050, 1051 n. 5 (R.I.1997); see also Pacheo v. Raytheon Co., 623 A.2d 464, 465 (R.I.1993) (stating that \\\"[i]t is not the role of the courts to create rights for persons whom the Legislature has not chosen to protect\\\"). Here, the record discloses that Galloway did not have a written contract with the university and was aware that he was an at-will employee who could be terminated without notice or cause. Further, Galloway acknowledged that he was aware that the university could unilaterally change its policies with respect to the hiring and retention of its employees. We are satisfied that were the facts of this case exactly as Galloway has contended, he nonetheless had actual notice, based on his receipt of the manual, that as an at-will employee he could be terminated at any time, with or without cause. Therefore, we conclude that the trial justice was correct in finding that Galloway's reliance on the so-called promises of Schipper and Santoro was neither reasonable nor actionable.\\nAccordingly, the plaintiffs appeal is denied and dismissed and the judgment appealed from is affirmed. The papers in this case are remanded to the Superior Court.\\nJustice LEDERBERG did not participate.\"}"

ri/11162431.json

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+"{\"id\": \"11162431\", \"name\": \"Montee DEBAR et al. v. WOMEN AND INFANTS HOSPITAL et al.\", \"name_abbreviation\": \"Debar v. Women & Infants Hospital\", \"decision_date\": \"2000-11-29\", \"docket_number\": \"No. 99-91-Appeal\", \"first_page\": \"1182\", \"last_page\": \"1189\", \"citations\": \"762 A.2d 1182\", \"volume\": \"762\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T20:23:49.074101+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: WEISBERGER, C.J., and LEDERBERG, BOURCIER, and GOLDBERG, JJ.\", \"parties\": \"Montee DEBAR et al. v. WOMEN AND INFANTS HOSPITAL et al.\", \"head_matter\": \"Montee DEBAR et al. v. WOMEN AND INFANTS HOSPITAL et al.\\nNo. 99-91-Appeal.\\nSupreme Court of Rhode Island.\\nNov. 29, 2000.\\nMark H. Grimm, Providence, for Plaintiff.\\nDavid W. Carroll, Timothy P. Gallogly, Providence, for Defendant.\\nPresent: WEISBERGER, C.J., and LEDERBERG, BOURCIER, and GOLDBERG, JJ.\", \"word_count\": \"4123\", \"char_count\": \"25924\", \"text\": \"OPINION\\nBOURCIER, Justice.\\nThis case comes before us on appeal following entry of judgment as a matter of law in favor of the defendants in a Superi- or Court medical malpractice and wrongful death action.\\nIn December 1991, Flexman Johnson and Montee Debar (plaintiffs) filed a civil action against Women and Infants Hospital and several of its physicians (defendants), alleging their negligence in failing to order a timely cesarean section to have caused the death of their infant. All the physicians named in the complaint specialized in obstetrics and gynecology and treated plaintiff Debar during the final stages of her pregnancy. In October 1998, a Superior Court justice granted the defendants' Super.R.Civ.P. 50 motion for judgment as a matter of law after excluding the testimony of one of the plaintiffs expert witnesses.\\nOn appeal, the plaintiffs assert that the trial justice abused his discretion in (1) excluding the testimony of their expert witness on causation, (2) denying their motion to reopen voir dire of the expert witness, (3) denying their motion to continue the case, (4) denying their motion to stay the decision excluding the expert testimony pending an appeal, and (5) denying their motion for a new trial. For the reasons hereinafter set out, we reverse, vacate the judgment and order a new trial.\\nI\\nFacts and Case Travel\\nOn the afternoon of June 5, 1989, plaintiff Debar, almost forty two weeks pregnant and suffering from gestational diabetes, went to the defendant Women and Infants Hospital for an ultrasound. The ultrasound revealed diminished amniotic fluid in the amniotic sac, which may lead to decelerations in the fetal heart rate and to a decrease in oxygen flow to the fetus. Such a decrease in oxygen may in turn cause asphyxia, leading the fetus to gasp for air. This gasping for air is said to cause aspiration of meconium into the fetus's lungs, which if not expelled can prevent breathing and ultimately lead to cardiac arrest. The plaintiff Debar subsequently was admitted to the hospital's emergency room.\\nFollowing a decision to induce labor, the plaintiff Debar's fetus in fact suffered from decelerations in its heart rate. From 4:30 p.m. on the day of her admission and into the following morning, a fetal heart rate monitor strip recorded decelerations in the fetal heart rate. By 3:50 a.m., the defendants observed thick meconium present in the fetus. From approximately 6:45 a.m. to 7 a.m., the fetus suffered more severe decelerations. Despite these decelerations and the presence of meconium, the defendants elected not to order a cesarean section. Instead, a blood sample was ordered taken from the fetus's scalp to determine whether the fetus remained at risk for meconium aspiration. The blood sample revealed the fetus's pH level to be within normal range. The defendants subsequently ordered an amnioinfusion to reduce the risk of further decelerations. .\\nDespite the efforts of the defendants, at approximately 7:40 a.m. and 8 a.m., the fetus suffered severe decelerations. After this last series of decelerations, the defendants finally ordered a cesarean section at 8:15 a.m. On delivery by cesarean section at 8:38 a.m., the baby was found to have aspirated meconium into her lungs. The baby was pronounced dead approximately thirty-seven minutes after \\u2022 delivery. An autopsy determined that the cause of death was cardiac arrest as a result of meconium aspiration syndrome and bilateral pneumothoraces.\\nDuring trial, the plaintiffs had introduced the testimony of Dr. Thomas Bar-den, who testified that the defendants had deviated from the accepted standard of medical care in fading to perform a cesarean section at or about the time of the 6:45 a.m. decelerations. He testified that he believed that if a cesarean section had been performed at that time the baby would have survived this episode \\\"long enough that at least it would be sustainable.\\\" Nevertheless, he opined that \\\"whether [the infant] may have eventually died as a result of the consequences of the disease is not something that I should try to answer, because I'm not a pediatrician.\\\"\\nTo supplement the testimony of Dr. Barden and prove causation, the plaintiffs intended to rely exclusively upon the testimony of Dr. Daniel Adler, a board-certified pediatrician and pediatric neurologist. Doctor Adler was prepared to testify that had a cesarean section been ordered and performed at or about the same time of the 6:45 a.m. decelerations, the Debar fetus would have survived. He proposed to testify that after the 6:45 a.m. decelerations, the fetus aspirated substantial amounts of meconium into her lungs, particularly between 8 a.m. to 8:15 a.m.\\nAt,trial, Dr. Adler testified before the jury. He related that he was a graduate of the Albert Einstein College of Medicine (AECM) and had completed a pediatric residency at the Columbia-Presbyterian Medical Center, during which he treated newborns stricken with meconium aspiration syndrome. He also testified that he later completed a fellowship in pediatric neurology, during which he treated newborns in AECM's intensive care unit. Later, as 'a faculty member at AECM, Dr. Adler focused primarily on pathology. Subsequently, he was retained by a community hospital, doing the bulk of his work in pediatric epilepsy and in the community hospital's newborn intensive care unit. He testified that he had been retained as a consultant in numerous cases involving children with neurological problems arising from birth complications, usually caused by asphyxia.\\nDoctor Adler further testified that in the course of his experience, he had frequently reviewed \\\"every piece of data\\\" from pathology reports to obstetrical records in treating newborns with birth defects. As part of this analysis, Dr. Adler often interpreted fetal heart monitor strips, pathology slides, and fetal scalp pH levels. When plaintiffs' counsel sought to elicit the doctor's opinion about whether the defendants' failure to undertake an earlier cesarean delivery was a proximate cause of infant Debar's death, the defendants objected to Dr. Adler's proffered testimony on the ground that he lacked the requisite qualifications to offer an opinion on causa tion, and requested to voir dire the doctor. During the voir dire, Dr. Adler acknowledged that he did not consider himself an expert in the specialty of fetal monitoring or obstetrics.\\nUpon completion of the voir dire, the defendants objected to the doctor's being permitted to testify about the cause of infant Debar's death. Of his own accord, the trial justice then offered the following commentary:\\n\\\"I'm concerned with the overlap of the specialty of obstetrics and GYN with pediatrics. I can understand the pediatrician saying that he would like very much to understand something about the fetal life of the baby, but in matters that relate to the discipline of obstetrics, the pediatrician will usually defer \\u2014 and I think this witness has indicated that he defers to the obstetrician.\\\"\\nThe trial justice later concluded:\\n\\\"I think there is going to be and is an issue in this case concerning meconium, when it was aspirated . This condition, it seems to the Court to be far afield of this doctor's expertise. I'm not concerned by the label of pediatric neurology, but I noticed in reviewing with the court reporter that the doctor answered that he's not really involved in the delivery of the babies, but he takes over after that.\\\"\\nThe trial justice then sustained the defendants' objection to the proposed causation opinion from the doctor. The plaintiffs' counsel then proceeded to make an extended offer of proof about Dr. Adler's proposed opinion testimony, which the trial justice rejected.\\nThe plaintiffs' counsel thereafter immediately moved (1) to reopen the voir dire concerning Dr. Adler's qualifications, (2) to continue the case, allowing the plaintiffs an opportunity to retain a new expert, and (3) to stay the case pending appeal of the trial justice's ruling, all of which were denied. The trial justice then entertained and granted the defendants' Rule 50 motion for judgment as a matter of law. The plaintiffs then filed a motion for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure, citing as reason the error of the trial justice in excluding Dr. Adler's proposed testimony. The trial justice denied the motion for a new trial. In doing so, he noted that allowing Dr. Adler's opinion testimony would be tantamount to permitting a pediatric neurologist \\\"to make a determination which required a skillful interpretation of obstetrical data\\\" and \\\"to do nothing but speculate on the question of causation.\\\"\\nII\\nExclusion of Dr. Adler's Testimony\\nThe plaintiffs assert here on appeal that the trial justice abused his discretion by excluding Dr. Adler's testimony on an \\\"intractable assumption\\\" that Dr. Adler was not qualified to determine whether an earlier cesarean section would have saved the baby's life because such an opinion required an interpretation of obstetrical data and that Dr. Adler was not an obstetrician.\\nThe determination of whether to qualify and permit an expert witness to proffer an expert opinion relative to an issue in dispute is left to the discretion of the trial justice and this Court will not disturb that determination absent clear error or an abuse of that discretion. See Sheeley v. Memorial Hospital, 710 A.2d 161, 164 (R.I.1998); Richardson v. Fuchs, 523 A.2d 445, 447 (R.I.1987). Nevertheless, as this Court has also opined,\\n\\\"To say, however, that the question is addressed to the trial justice's discretion does not mean that his ruling is not reviewable. What it does mean is that the ruling will be sustained provided the discretion has been soundly and judicially exercised, that is, if it has been exercised in the light of reason applied to all the facts and with a view to the rights of all the parties to the action, and not arbitrarily or wilfully, but with just regard to what is right and equitable under the circumstances and the law.\\\" DeBartolo v. DiBattista, 117 R.I. 349, 353, 367 A.2d 701, 703 (1976).\\nThe state legislature, it must be noted, has enacted legislation purporting to curtail a trial justice's discretion in admitting expert testimony in medical malpractice actions. See G.L.1956 \\u00a7 9-19-41. Section 9-19-41 provides,\\n\\\"In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists, or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.\\\"\\nIn interpreting \\u00a7 9-19-41, this Court has reasoned that the wording employed in the statute does not require that an expert must practice in the same specialty as the defendant to testify' about the requisite standard of care. Buja v. Morningstar, 688 A.2d 817, 819 (R.I.1997) (per curiam); Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425, 426 (R.I.1996) (per curiam). We had said earlier, in Buja, 688 A.2d at 819, that,\\n\\\"There is nothing in the plain and unambiguous language of \\u00a7 9-19-41 that requires that before an expert testifies in a medical malpractice case, he or she must not only be an expert in the field where the alleged malpractice occurred, but must also practice in the same specialty as the defendant. Such an additional requirement is unnecessary and is in contravention to the General Assembly's clear intentions, as expressed in \\u00a7 9-19-41.\\\"\\nIn Marshall, 677 A.2d at 426, we also had noted that the statute does not suggest that to qualify as an expert witness, the testifying doctor must be board certified or otherwise have training in the same medical specialty as the defendant-physician.\\nAccordingly, this Court has rejected the contention that \\u00a7 9-19^41 permits only an expert whose formal specialty is the same as that of a defendant-physician or whose specialty is precisely related to the medical issu\\u00e9 in the case to offer an opinion on the appropriate standard of care. See, e.g., Sheeley, 710 A.2d at 165; Buja, 688 A.2d at 819. Indeed, in Sheeley, 710 A.2d at 165, we held that a board-certified obstetrician and gynecologist was competent and qualified to proffer an opinion about the standard of care for performance of a delivery procedure by a family medical doctor. In Buja, 688 A.2d at 818-19, we likewise concluded that an obstetrician could testify and give expert opinion in litigation against a family practitioner whose patient had given birth to an infant with birth defects caused by oxygen deprivation. In Marshall, 677 A.2d at 426-27, we had earlier vacated a directed verdict precipitated by the trial justice's preclusion of an opinion by a pediatric and family medical doctor about the standard of care for an emergency room doctor and internist in treating an animal-bite wound.\\nRule 702 of the Rhode Island Rules of Evidence also repudiates the notion that an expert witness must have the exact formal certifications as the defendant to proffer opinion testimony. Rather, Rule 702 states, \\\"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a -witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.\\\" In Flanagan v. Wesselhoeft, 712 A.2d 365, 369 (R.I.1998), a trial justice granted the defendant's motion in limine to prevent the introduction of expert testimony based upon the alleged inability of the expert to testify in regard to his knowledge of the standard of care for pediatric surgeons practicing in Rhode Island. In reversing, we reasoned that an out-of-state board-certified pediatric surgeon should have been allowed to offer his opinion on the standard of care for a cervical node excision performed by an instate pediatric surgeon because both the doctor's board certifications and his \\\"extensive knowledge, skill, and experience\\\" in pediatric surgery should have presumptively permitted his testimony to be admitted at trial. Similarly, in Gallucci v. Humbyrd, 709 A.2d 1059, 1064-65 (R.I.1998), in the context of Rule 702, this Court determined that a board-certified orthopedic surgeon was competent and qualified to proffer an opinion about the standard of care for rehabilitative therapy performed by a physical therapist.\\nOther courts have likewise seen fit to reject the contention made here by the defendants that a medical professional must possess the same formal certifications as a defendant to give expert opinion in a medical malpractice case. See, e.g., Pool v. Bell, 209 Conn. 536, 551 A.2d 1254, 1258 (1989); Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887, 892 (1975); Letch v. Daniels, 401 Mass. 65, 514 N.E.2d 675, 677 (1987). In Pool, 551 A.2d at 1258, the Supreme Court of Connecticut held that a neurologist could testify and proffer an expert opinion on the duty of care required of a general surgeon in a medical malpractice action. In Fitzmaurice, 356 A.2d at 892, the Supreme Court of Connecticut also ruled that it was error for the trial court to exclude the proffered expert testimony of a surgeon specializing in breast cancer surgery about the standard of care for an obstetrician and gynecologist in diagnosing breast cancer. The Massachusetts Supreme Judicial Court, in Letch, 514 N.E.2d at 677, also held that an orthodontist could testify and proffer an opinion in a medical malpractice case involving a pe-dodontist.\\nAccordingly, we have construed the wording of \\u00a7 9-19-41 and Rule 702 both literally and liberally as intending to require only that the proffered expert possess adequate knowledge, skill, experience, or education in the same field as the alleged malpractice. See Flanagan, 712 A.2d at 369; Sheeley, 710 A.2d at 165. In defining what constitutes the \\\"field\\\" of alleged malpractice, this Court has looked largely to the nature of the patient's injury or to the nature of the procedure employed rather than to rigid classifications based solely on specialty certification. In Shee-ley, we explained:\\n\\\"The appropriate standard of care to be utilized in any given procedure should not be compartmentalized by a physician's area of professional specialization or certification. On the contrary, we believe the focus in any medical malpractice case should be the procedure performed and the question of whether it was executed in conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable manner. Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard.\\\" Sheeley, 710 A.2d at 166.\\nAccordingly, this Court has consistently held that an expert's testimony on the appropriate standard of care must be admitted when the witness possesses prerequisite prior experience in the field of the alleged malpractice, regardless of his or her formal specialty or certifications. See, e.g., Sheeley, 710 A.2d at 166; Buja, 688 A.2d at 819. We have reasoned that an expert's lack of formal certification may go to the weight to be given the expert's opinion by the fact finder rather than to its admissibility and a trial justice should not bar such testimony ah initio. See Buja, 688 A.2d at 819 (citing Marshall, 677 A.2d at 426-27).\\nIn so doing we of course continue to require that any proffered expert witness must still first demonstrate to the trial justice his or her particular knowledge acquired through education or experience in the field of alleged malpractice. See, e.g., Buja, 688 A.2d at 819. As we noted in Marshall, 677 A.2d at 427, this Court requires that the \\\"proponent of [expert testimony] must still show the trial court that the so-called expert-witness has knowledge, skill, training, or experience in the same field as the alleged malpractice so that the expert's testimony can be genuinely helpful to the jury.\\\" We believe, as aptly noted by the Supreme Court of Connecticut in Fitzmaurice, 356 A.2d at 892, that:\\n\\\"Recognizing the complexity of knowledge required in the various medical specialties, more than a casual familiarity with the specialty of the defendant physician is required. The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards, and not to the standards of the witness' particular specialty if it differs from that of the defendant.\\\"\\nAlthough this Court has primarily considered the question of whether a proposed expert witness formally trained in a different specialty other than that of the defendant may testify in the context of evaluating the appropriate standard of care in a given case, we discern no reason to adopt a different rule when that same expert is expected to testify regarding causation.\\nIn this case, we conclude that the trial justice erroneously evaluated the competency of Dr. Adler as an expert based solely on the doctor's formal certifications and- specialties. A review of Dr. Adler's otherwise knowledge, skill, experience, and education in the field of the alleged malpractice \\u2014 meconium aspiration syndrome in fetuses and infants \\u2014 clearly demonstrates that he was certainly qualified to give his opinion on the issue of causation. He had testified to having more than adequate qualifications to ascertain and proffer his opinion about whether an earlier performance of a cesarean section would have prevented or mitigated meconium aspiration, which might have saved the life of the plaintiffs' infant. That testimony revealed that the \\\"bulk\\\" of his current work involved treating newborns in the intensive care unit at a community hospital. He indicated that he had treated numbers of newborns stricken with meconium aspiration syndrome and that most of his consulting practice involved children born with birth injuries resulting from asphyxia. Although defense counsel argued persuasively that Dr. Adler could not ascertain precisely when the fetus's periods of asphyxia began or came to an end, the trial justice overlooked Dr. Adler's considerable past experience in reading and interpreting fetal heart monitoring strips and fetal pH readings in connection with determining the onset and nature of neurological injury. Such experience certainly should have permitted the doctor to determine and opine when, in his opinion, the decelerations generally occurred and when a change in the fetus's acid base status transpired and, consequently, to determine from that point in time when the fetus was at risk because of a decrease in oxygen flow.\\nAlthough the trial justice expressed his apparent concern that a pediatrician would be unable to understand the fetal life of a baby and would usually defer to an obstetrician on such matters, a board-certified pediatrician by definition most certainly would possess adequate general knowledge to comprehend the fetus's development in \\u00fatero in order to treat a newborn. Dr. Adler testified during the voir dire that there are occasions when a pediatrician is in fact called upon and required to assess the effects of asphyxia and meconium aspiration syndrome on a newborn, and that as a board-certified pediatrician he had been called upon to do so on numerous occasions. Not coincidentally, Dr. Barden, the plaintiffs' expert obstetrician, who earlier had testified for the plaintiffs, told the court and jury that he preferred to defer to a pediatrician to proffer the opinion whether an earlier cesarean section would have saved the plaintiffs' infant.\\nIn this case the trial justice appears to have arbitrarily concluded that a pediatric neurologist could not make a skillful interpretation of obstetrical data and only could speculate on matters related to causation. In doing so, he obviously overlooked Dr. Adler's particular and considerable experience in interpreting obstetrical data, including fetal heart monitoring strips and pH levels. In this case, the question of causation revolved around when meconium aspiration syndrome occurred and, consequently, the approximate time when it became necessary for the defendants to perform a cesarean section. Depending upon his or her training and experience, a board-certified pediatric neurologist might be more qualified than the average pediatrician or perhaps even the average obstetrician to answer questions of causation. A pediatric neurologist by definition deals with injuries to the central nervous system, including the brain, many of which result from oxygen deprivation. As Dr. Adler testified, many of his patients consisted of newborns with injuries resulting from birth asphyxia. That hands-on experience, when coupled with the doctor's qualifications as a board-certified pediatrician and especially as a board-certified pediatric neurologist, we conclude, would qualify him to testify about the cause of the infant's death in this case. We determine that the trial justice clearly abused his discretion and erred in refusing to permit Dr. Adler to proffer his expert opinion about what caused the death of infant Debar. We determine that error to have been so prejudicial to the plaintiffs' case as to constitute reversible error and to require a new trial.\\nIII\\nOther Allegations of Error\\nBecause we have concluded that the trial justice in this case erred, and that such error constituted reversible error necessitating a new trial, we need not address the plaintiffs' remaining appellate issues, except to allude briefly to the plaintiffs' contention regarding the denial of their motion for a trial continuance.\\nWhen, as in this case, the exclusion of expert testimony by a trial justice leaves a party fatally vulnerable to a defendants' motion for judgment as a matter of law, the endangered party might reasonably be allowed a short continuance to engage another expert witness, or the trial justice should consider whether to treat a defendant's Rule 50 motion as a motion for an involuntary nonsuit pursuant to Rule 50(a)(3).\\nIV\\nConclusion\\nFor the foregoing reasons, we sustain the plaintiffs' appeal and vacate the judgment of the Superior Court. The papers of this case are remanded to the Superior Court for a new trial.\\nJustice FLANDERS did not participate.\\n. Doctor Marshall Carpenter, Dr. Cynthia Hanna, Dr. Marion Pandiscio, Dr. Mark Scott, and Dr. Martin Schoenmaker all were named in the original complaint. Doctor Scott and Dr. Schoenmaker settled prior to trial.\\n. \\\"Meconium\\\" is commonly described as a fetus's first bowel movement.\\n. A \\\"fetal scalp pH\\\" measures a fetus's acid base status, which may indicate whether asphyxia has occurred.\\n. An \\\"amnioinfusion\\\" is a procedure that replenishes amniotic fluid in the amniotic sac.\\n.\\\"Bilateral pneumothoraces\\\" is a condition in which the lungs collapse.\\n. At the time of the trial justice's decision in Flanagan v. Wesselhoeft, 712 A.2d 365 (R.I.1998), the same or similar community standard of care test applied in medical malpractice cases.\"}"

ri/11267996.json

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+"{\"id\": \"11267996\", \"name\": \"Charles H. Merriman et al., Assignees of the Ballou Manufacturing Company et als., vs. The Social Manufacturing Company et als.\", \"name_abbreviation\": \"Merriman v. Social Manufacturing Co.\", \"decision_date\": \"1878-07-20\", \"docket_number\": \"\", \"first_page\": \"175\", \"last_page\": \"193\", \"citations\": \"12 R.I. 175\", \"volume\": \"12\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T20:06:28.280602+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles H. Merriman et al., Assignees of the Ballou Manufacturing Company et als., vs. The Social Manufacturing Company et als.\", \"head_matter\": \"Charles H. Merriman et al., Assignees of the Ballou Manufacturing Company et als., vs. The Social Manufacturing Company et als.\\nB. & S., manufacturers, were the sole stockholders and officers of the B. Companj--, a corporation. B., the chief owner of the property used by B. & S., transferred this property to the B. Company by a deed which contained the following provision : \\u201c In further consideration for the premises hereby conveyed, the said B. Company agree and are to pay and discharge all the indebtedness now existing against said B. and B. & S., now due, or to grow due: \\u201d\\nHeld, that under this provision the B. Company was liable for the outstanding notes of B. & S-, and for renewals of the same, also for the outstanding accommodation indorse-ments of B. & S., whether due or to become due, and for the renewals of such indorse-ments.\\nHeld, further, that the holders of these notes, original and indorsed, were either directly or by subrogation entitled to payment from the B. Company.\\nCertain outstanding notes with the accommodation indorsement of B. & S. were held by banks. At their maturity it appeared that other notes for the same amount, and with the same indorsements, were offered for discount and accepted; that the proceeds of the discount were placed to the credit of the makers, who thereupon drew their checks for such proceeds; and with these checks paid their former notes which were returned to them stamped \\u201c paid: \\u201d\\nJECeldf that this transaction made a new credit and a new loan, and that these latter notes were not renewals of the former.\\nHeld, further, that these latter notes were not protected by the provision in the deed from B. to the B. Company.\\nBill IN Equity. The facts involved and the prayer of the bill are stated in the opinion of the court.\\nJuly 20, 1878.\", \"word_count\": \"7827\", \"char_count\": \"43290\", \"text\": \"Dubeee, O. J.\\nThis is a bill for instructions in a case which may be stated as follows:\\nPrior to October 13, 1875, George C. Ballou and his son David Ballou were, and for many years had been, extensively engaged in manufacturing under the firm of George C. Ballou & Son, the property used in the business being chiefly owned by George C. Ballou. The Ballou Manufacturing Company organized as a corporation September 30, 1875, under a charter granted in 1872. October 13, 1875, George C. Ballou conveyed all the real estate, mills, and machinery used in the manufacturing business of George C. Ballou & Son to the corporation, the consideration named in the premises of the deed being one dollar. The deed contained the fpllowing clause, to wit:\\n\\\" And whereas, and in further consideration for the premises hereby conveyed, the said Ballou Manufacturing Company agree and are to pay and discharge all the indebtedness now existing against said George C. Ballou and George C. Ballou & Son, now due or to grow due.\\\"\\nThe corporation voted, November 2, 1875, to accept the deed, subject to all its conditions, and to take it in full payment for 850 shares of the capital stock subscribed for by George C. Ballou and for 150 shares subscribed for by David Ballou, who thereupon became the sole owners of the stock. On the same day George C. Ballou was elected president and David Ballou treasurer, and both were elected directors. The deed to the corporation was recorded November 23, 1875.\\nApril 17, 1876, the Ballou Manufacturing Company, and George C. Ballou & Son, respectively, assigned all their property to the complainants for the equal benefit of all their creditors.\\nAt the time of the assignment the Social Manufacturing Company held the note of George C. Ballou & Son for $5,000, payable in six months, dated November 27,1875, but being a renewal of a note for the same amount bearing date prior to October 13, 1875.\\nAt the time of the assignment George C. Ballou & Son were, and for many years had been, accommodation indorsers for Oren A. Ballou & Co., and as such had indorsed several notes, which did not mature until after October 13, 1875, and which, when they matured, were renewed by notes of the same description for the same or a less amount. Two of these notes, dated February 21, 1876, are held by the Social Manufacturing Company, and the others, five in number, by three different banks, the holders of the renewal having been holders of the original notes. The holders of all these several notes have presented them to the complainants, as assignees of the Ballou Manufacturing Company, as claims on which they are entitled to dividends under the assignment of the Ballou Manufacturing Company. The complainants question their right to dividends, and desire the instruction of the court.\\nThe dividends are claimed under the clause in the deed to the Ballou Manufacturing Company, above recited, which binds the company to pay and discharge all the existing indebtedness of George C. Ballou & Son, whether due or to grow due.\\nNo question is made in regard to the right of the holders of these notes to dividends on the ground that there is no privity between them and the Ballou Manufacturing Company ; but it is assumed on both sides that they cannot be excluded on any such ground. Counsel have, however, at our request, submitted authorities, in accordance with which we find that the holders of the notes are entitled, either directly or by subrogation, to dividends under the assignment of the corporation, unless excluded on other grounds. See Urquhart v. Brayton, ante, p. 169, and cases cited ; Klapworth v. Dressler, 13 N. J. Eq. 62; Crowell v. Currier, 27 N. J. Eq. 152; Curtis v. Tyler, 9 Paige, 432 ; Marsh v. Pike, 10 Paige, 595; Blyer v. Monholland, 2 Sandf. Ch. 478 ; Vrooman v. Turner, 8 Hun, 78 ; Thompson v. Bertram, 14 Iowa, 476 ; Crawford v. Edwards, 33 Mich. 354 ; Miller v. Thompson, 34 Mich. 10.\\nIt is contended that the holders of these notes are not entitled to dividends because the notes are not a part of the indebtedness existing against George C. Ballou & Son on October 13, 1875, but are an indebtedness subsequently contracted. The holders of the notes contend that, though the notes were given after October 13, 1875, they were given for debts previously contracted, and given not in payment, but simply to renew the promise and extend the time of payment.\\nThe doctrine of this court, established by repeated decisions, is that a negotiable promissory note, given by the debtor for a preexisting debt, does not pay the debt unless given and received as payment, the burden of proving that it was so given and received being on the party who maintains it. Under this rule we see no reason why the note first above-mentioned should not be regarded as representing a debt which existed prior to October 13, 1875; for there is not the slightest evidence that the note was either given or received as absolute payment of the debt then existing. It merely extended the time of payment, or, at the utmost, operated only as conditional payment. It does not appear that it was ever negotiated, which, in Sweet Carpenter v. James, 2 R. I. 270, is said to make the new note prim\\u00e9 facie payment. We think, therefore, the new note never having been paid, the prior indebtedness must be held to have remained unextinguished.\\nIt is urged that the indebtedness, if not extinguished, was at least extended, and that, for that reason, the Ballou Manufacturing Company cannot be held. The objection might have some force if the indebtedness had been extended without the consent of the corporation; but inasmuch as the copartnership and the corporation are composed of the same persons, it must be presumed that the indebtedness was extended with the consent of the corporation and for its benefit, as well as for the benefit of the copartnership.\\nWhat we have said in regard to the first-mentioned note is equally applicable to the two other notes held by the Social Manufacturing Company, unless, upon some other ground, they are not to be regarded as representing an indebtedness existing against George C. Ballou & Son prior to October 13, 1875. The note first above-mentioned was made by George C. Ballou & Son. The other two notes were not made by them. They were simply indorsed by them for the accommodation of Oren A. Ballou & Co., who were the makers. It is contended that an indorsement, before notice of dishonor, is not an \\\" indebtedness,\\\" but only a contingent liability ; and that it was tbe indebtedness existing against George 0. Ballou & Son prior to October 13, 1875, not their contingent liabilities, that the Ballou Manufacturing Company agreed to pay and discharge. On this ground, therefore, the right to dividends on account of notes so indorsed is denied.\\nIndebtedness is a word of large meaning. It is used to denote almost every kind of pecuniary obligation originating in contract. We see no reason for limiting its significance in the case at bar, whether we regard the language of the stipulation or the extrinsic circumstances. The language is \\\" all the indebtedness . now due or to grow due.\\\" The assumption was obviously meant to be comprehensive. We think it must be held to cover liabilities contracted by indorsement, whether then due or to grow due.\\nBut it is further urged that the liability or indebtedness never did grow due, because there was no notice to the indorsers when the notes matured. It is true there was no notice, but notice was not given because the indorsement was renewed. The in-dorsers thereby waived notice by promising to pay in case they were duly notified when the new notes matured, and it is conceded that they were then duly notified.\\nThese are the only grounds suggested at the hearing for the exclusion of the three notes first mentioned. We do not think that either of them can be sustained.\\nWe next come to consider the renewal notes held by the different banks. It appears that when these notes were given the former notes were surrendered. In Nightingale v. Chafee, 11 R. I. 609, we decided that such surrender or cancellation was not in itself proof of absolute payment, especially when payment in that manner was obviously not for the creditor's interest. We still adhere to that view. To keep the old note is to keep the evidence of the debt as it were in duplicate. This might not be desired by either party. It appears, however, in the case at bar, that the old notes when surrendered were stamped \\\" paid \\\" by the banks. This was certainly significant, but perhaps not decisive ; for it may be said they were paid sub modo, but not absolutely. Maillard v. Argyle, 6 M. & G. 40 ; Berry v. Griffin, 10 Md. 27 ; Wheeler v. Schroeder, 4 R. I. 388; 2 Amer. Lead. Cases, 5th ed. 267. But in the case at bar there was something beyond even this. It is admitted that the new notes were not simply exchanged for the old, but that the new notes being offered to the banks were discounted, and the proceeds placed to the credit of the makers on the books of the bank; that thereupon, the old notes having matured, the makers drew their checks upon the banks for the amount thereof, and that it was not until after these checks were received by the banks that the old notes were stamped \\\" paid,\\\" and surrendered. And in view of this complex operation were they not paid ? Of course the question is, What did the parties intend ? We have considered this question carefully, and the more carefully because we now learn what it may have been important for us to have known in deciding other cases, that the same practice prevails in all the banks ; and we cannot resist the conclusion that the parties intended to have the new notes represent new debts, the old being regarded as paid and extinguished. The new notes were given to create new credits, or, in- other words, to procure in effect new loans, the proceeds of which were applied, by the checks drawn for that purpose, to the payment of the notes, which were surrendered. This, and nothing short of this, is the real import of the acts which were done, and of the record which was made of them. Letcher v. Bank of the Commonwealth, 1 Dana, 82, 84; Slaymaker v. Gundacker's Executors, 10 S. & R. 75, 82; Sill v. Bostick, 10 Yerg. 410 ; 2 Parsons on Notes & Bills, 208.\\nOur conclusion is that the paper held by these banks does not represent any part of the indebtedness existing against George C. Ballou & Son prior to October. 13, 1875, but that it represents a new indebtedness subsequently contracted, and consequently that it does not entitle its holders to dividends under the assignment of the Ballou Manufacturing Company.\\nIt is suggested that the notes may be provable, even if paid, because they may be regarded as paid by George C. Ballou & Son. We think, however, that if they can be regarded as paid by George C. Ballou & Son, rather than by Oren A. Ballou & Co., it will not make them provable specially for the benefit of the banks holding the new notes ; but only in favor of George C. Ballou & Son, or their assignees, for the copartnership creditors generally. But whether they are to be regarded as paid by George C. Ballou & Son is not a question presented by this bill.\\nThe bill asks for instructions in regard to two other notes held by the Jackson Bank. But if the notes last above considered are not entitled under the assignment of the corporation, the other notes are still less so. We instruct the assignees accordingly.\"}"

ri/11301951.json

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+"{\"id\": \"11301951\", \"name\": \"Anita CIPOLLA v. PICARD PORSCHE AUDI, INC., et al.\", \"name_abbreviation\": \"Cipolla v. Picard Porsche Audi, Inc.\", \"decision_date\": \"1985-07-16\", \"docket_number\": \"No. 83-201-Appeal\", \"first_page\": \"130\", \"last_page\": \"132\", \"citations\": \"496 A.2d 130\", \"volume\": \"496\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:39:07.025658+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anita CIPOLLA v. PICARD PORSCHE AUDI, INC., et al.\", \"head_matter\": \"Anita CIPOLLA v. PICARD PORSCHE AUDI, INC., et al.\\nNo. 83-201-Appeal.\\nSupreme Court of Rhode Island.\\nJuly 16, 1985.\\nAnthony J. Gianfrancesco, Dennis S. Ba-luch, Providence, for plaintiff.\\nGerald C. DeMaria, Higgins Cavanagh & Cooney, Providence, for defendant.\", \"word_count\": \"1258\", \"char_count\": \"7914\", \"text\": \"OPINION\\nKELLEHER, Justice.\\nThe plaintiff (Anita) in this international controversy appeals the dismissal of her product liability action by a Superior Court judge for her failure to properly effectuate service on a West German defendant, Yolkswagenwerk Aktiengesellschaft (VWAG). A brief recital of the facts leading to this litigation is in order.\\nIn September 1978 Anita, a resident of the Pawtuxet Valley, purchased a 1978 Volkswagen Rabbit from Picard Porsche Audi, Inc. (Picard), a licensed retail automobile dealership doing business in Warwick. Volkswagens were distributed in the United States by Volkswagen of America, Inc. (VWOA), a New Jersey corporation. On June 24, 1981, Anita sustained personal injuries and the total loss of her vehicle when the accelerator on the Rabbit \\\"stuck\\\" as she was backing out of a driveway. The Rabbit crossed Warwick's West Shore Road and struck a house on the opposite side of the roadway. It is safe to say that as Anita \\\"barreled rapidly in reverse across the road,\\\" the supremacy clause of Article VI of the United States Constitution never crossed her mind.\\nSuit was initially brought against Picard and VWOA on October 28, 1981. Later, on April 12, 1982, Anita was permitted to file an amended complaint pursuant to Rule 15(a) of the Superior Court Rules of Civil Procedure, in which she included as an additional defendant the Rabbit's manufacturer, VWAG. She then sought to effect service of process upon VWAG by serving, on November 18, 1982, a copy of the summons and amended complaint upon the Secretary of State for the State of Rhode Island. Subsequently, on December 8, 1982, Anita's counsel sent a letter by certified mail to VWOA and enclosed a copy of the summons and amended complaint.\\nIn taking this route, Anita's counsel relied upon Rule 4(e)(2) and G.L.1956 (1969 Reenactment) \\u00a7 7-1.1-108, as amended by P.L.1970, ch. 136, \\u00a7 15, which, in pertinent part, provides that whenever a \\\"foreign corporation authorized to transact business in this state\\\" fails to appoint a registered agent in the state for service of process, the Rhode Island Secretary of State shall be deemed to be the agent of the corporation for purposes of receiving process. Anita's counsel has also maintained that VWAG is subject to the jurisdiction of the state of Rhode Island because it has the necessary \\\"minimum contacts\\\" as set forth in G.L.1956 (1969 Reenactment) \\u00a7 9-5-33.\\nVWAG has consistently contended that Anita's action should be dismissed since the Superior Court never obtained personal jurisdiction over the West German corporation because her purported service of process was a nullity. The motion to dismiss was based upon noneompliance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention). Entered into Force for the United States, February 10, 1969, 20 U.S.T. 361, T.I.A.S. 6638, 658 U.N.T.S. 163.\\nThe United States and the Federal Republic of Germany (West Germany) are signatories of the convention. The convention was drafted to simplify and to expedite the service of judicial and extrajudicial documents between signatory nations and to ensure that recipients are served in sufficient time to allow them to act. It applies in all cases concerning civil or commercial matters wherein documents are transmitted abroad between those in signatory countries.\\nThe convention provides that each state is to designate a central authority to receive requests for service of documents. Requests for service, which must conform to a model form annexed to the convention, should be sent, along with the documents in. question, by the judicial officer or authority of the state in which the documents originate to the designated central authority of the country in which the recipient is located. When it receives a request, the central authority itself serves the documents or arranges service according to its internal laws. Once service is perfected, the central authority must forward a certificate to that effect to the applicant. If the request is insufficient for some reason, the applicant receives from the central authority a certificate setting forth the reasons which have prevented service.\\nThe convention also prescribes several alternative methods of service, including service by postal channels directly to the recipient, but allows signatory countries to object to the alternative methods. West Germany has made such an objection and has specified that all documents must be served through the central authority and must be translated into German. For cases discussing the Hague Convention, see Vorhees v. Fischer & Krecke, 697 F.2d 574 (4th Cir.1983); Harris v. Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D.La.1984); Rivers v. Stihl, Inc., 434 So.2d 766 (Ala.1983). The United States became bound by the provisions of the multilateral international convention on February 10, 1969.\\nIn Vorhees, 697 F.2d at 575, the Fourth Circuit noted that the Hague Convention was a self-executing treaty because it establishes affirmative and judicially enforceable obligations without requiring any implementing legislation. See Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 311, 77 L.Ed. 641, 650 (1933); Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386, 388 (1888). Article VI of the United States Constitution, in pertinent part, reads, \\\"[A]ll treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.\\\" Consequently, in this controversy service on VWAG must be perfected according to the terms of the Hague Convention even though Rhode Island's statutes and rules may provide several other methods for effectuating the service of process.\\nAnita's appellate counsel has cited a plethora of eases to buttress her contention that VWAG's multiple contacts with Rhode Island make it subject to suit without any infringement on VWAG's due-process rights. Some of those cases predate the effective date of the Hague Convention, and others, for reasons not readily apparent, make no mention whatsoever of the 1965 treaty.\\nOne final word: The trial justice, in dismissing Anita's claim against'VWAG, observed, \\\"It is obvious that under the Hague Convention and supremacy clause of the United States Constitution that no effective service of process can be made against Volks wagenwerk Aktiengesellschaft in any civil action.\\\" The trial justice's remark is not a precise portrayal of Anita's status. She could have followed the dictates of the convention. We also believe that Anita, having in mind the unique circumstances of this case, should be given a reasonable opportunity to effectuate the service of process on VWAG in a manner that complies with the Hague Convention. See Harris, 100 F.R.D. at 778, and cases cited therein. Consequently, the case is remanded to the Superior Court where Anita, if she so desires, will be given the opportunity to seek out a German translator and comply with the terms of the convention.\\nThe plaintiff's appeal is denied and dismissed pro forma, the judgment appealed from as modified by this opinion is affirmed, and the case is remanded to the Superior Court for further proceedings.\\n. There is nothing in the record that would support the view that VWAG was ever authorized to do business in Rhode Island.\\n. The terms of the Hague Convention can be found in Fed.Rules Civ.Proc.Rule 4, 28 U.S.C.A. at 87-92 (West Supp.1985).\"}"

ri/11714518.json

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+"{\"id\": \"11714518\", \"name\": \"In the Matter of Zvi Hershel SMITH\", \"name_abbreviation\": \"In re Smith\", \"decision_date\": \"1998-05-15\", \"docket_number\": \"No. 95-297 M.P.\", \"first_page\": \"622\", \"last_page\": \"622\", \"citations\": \"714 A.2d 622\", \"volume\": \"714\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:33:01.622793+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEDERBERG and GOLDBERG, JJ., did not participate.\", \"parties\": \"In the Matter of Zvi Hershel SMITH.\", \"head_matter\": \"In the Matter of Zvi Hershel SMITH.\\nNo. 95-297 M.P.\\nSupreme Court of Rhode Island.\\nMay 15, 1998.\", \"word_count\": \"194\", \"char_count\": \"1163\", \"text\": \"ORDER\\nOn March 25, 1998, this Court's Disciplinary Counsel filed a petition pursuant to Article III, Rule 24 of the Supreme Court Rules to revoke the license to practice law of the Respondent, Zvi Hershel Smith. On March 2, 1998, the Respondent was found guilty of two (2) counts of embezzlement over five hundred ($500) dollars, in violation of R.I.G.L. \\u00a7 11-41-5, and was sentenced to a term of imprisonment on both counts for ten (10) years, sentence suspended, and placed on probation for ten (10) years.\\nOn May 15, 1997, the Respondent appeared before this Court pursuant to an order which directed him to show cause, if any, why the petition should not be granted. After hearing the representations of Respondent and Disciplinary Counsel, we deem that an order granting the Petition to Revoke Respondent's License to Practice Law is appropriate.\\nAccordingly, it is hereby ordered, adjudged and decreed that the Respondent, Zvi Hershel Smith, be and he is hereby disbarred from engaging in the practice of law.\\nLEDERBERG and GOLDBERG, JJ., did not participate.\"}"

ri/11982935.json

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+"{\"id\": \"11982935\", \"name\": \"STATE v. Brian E. TURNBAUGH\", \"name_abbreviation\": \"State v. Turnbaugh\", \"decision_date\": \"1997-06-02\", \"docket_number\": \"No. 95-625-C.A.\", \"first_page\": \"756\", \"last_page\": \"757\", \"citations\": \"694 A.2d 756\", \"volume\": \"694\", \"reporter\": \"West's Atlantic Reporter, Second Series\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:29:55.288806+00:00\", \"provenance\": \"CAP\", \"judges\": \"McKENNA-GOLDBERG, J., did not participate.\", \"parties\": \"STATE v. Brian E. TURNBAUGH.\", \"head_matter\": \"STATE v. Brian E. TURNBAUGH.\\nNo. 95-625-C.A.\\nSupreme Court of Rhode Island.\\nJune 2, 1997.\\nMichael L. Rubin, Aaron L. Weisman, Providence.\\nLeonard Bergersen, Peacedale.\", \"word_count\": \"334\", \"char_count\": \"2034\", \"text\": \"ORDER\\nThis case came before us on the state's appeal from a judgment of the Superior Court for the County of Washington holding that G.L. 1956 \\u00a7 46-22-4 was invalid by reason of the fact that it was preempted by federal legislation and is in violation of the Supremacy Clause of the United States Constitution, that it constituted an undue burden on interstate commerce, and that it violated the tonnage tax prohibition of Article 1, section 10, of the Constitution of the United States. This holding was rendered in response to a motion by defendant, Brian Turnbaugh, to dismiss a criminal complaint for failure to register his federally documented vessel in violation of \\u00a7 46-22-4(b) and \\u00a7 46-22-6(a). The defendant had also prayed for a declaratory judgment and for an injunction against enforcement of the Rhode Island registration statute. In response to this prayer, a justice of the Superior Court held that the statute charging the offense was invalid.\\nFollowing oral argument in the case, this court has carefully examined the briefs filed by the parties as well as the written decision of the trial justice. Having done so, the court is of the opinion that further briefing and argument is required in order to illuminate the issues of preemption and the tonnage tax. The current briefing is adequate on the issue of violation of the interstate commerce clause.\\nConsequently, this ease is assigned for further argument to the regular November calendar. Meanwhile, the parties are directed to file additional briefs on the issues of preemption and the constitutional prohibition of a tonnage tax.\\nThe defendant may file his additional brief within forty days of the date of this order. Thereafter, the state is directed to file a responsive brief within thirty days of the date of the filing of defendant's brief.\\nMcKENNA-GOLDBERG, J., did not participate.\"}"

ri/12494973.json

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+"{\"id\": \"12494973\", \"name\": \"STATE v. Eugene DANIS.\", \"name_abbreviation\": \"State v. Danis\", \"decision_date\": \"2018-04-19\", \"docket_number\": \"No. 2017\\u2013159\\u2013C.A.(K1/14\\u2013679A)\", \"first_page\": \"36\", \"last_page\": \"46\", \"citations\": \"182 A.3d 36\", \"volume\": \"182\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Rhode Island Supreme Court\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-27T20:57:30.522817+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.\", \"parties\": \"STATE\\nv.\\nEugene DANIS.\", \"head_matter\": \"STATE\\nv.\\nEugene DANIS.\\nNo. 2017-159-C.A.(K1/14-679A)\\nSupreme Court of Rhode Island.\\nApril 19, 2018\\nFor State: Lauren S. Zurier, Department of Attorney General\\nFor Defendant: Kara J. Maguire, Office of the Public Defender\\nPresent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.\", \"word_count\": \"4936\", \"char_count\": \"30620\", \"text\": \"Justice Indeglia, for the Court.\\nOn November 19, 2014, a grand jury indicted Eugene Danis (Danis or defendant) on charges of one count of first-degree child molestation sexual assault, in violation of G.L. 1956 \\u00a7 11-37-8.1 and 11-37-8.2, and one count of the sale or distribution of photographs of a minor suggesting that the minor engaged in, or is about to engage in, a sexual act, in violation of G.L. 1956 \\u00a7 11-9-1(b). A Kent County Superior Court jury convicted the defendant on both counts on February 9, 2016. On appeal, the defendant argues that the trial justice deprived him of his constitutional rights to confront and cross-examine the complaining witness. For the reasons stated herein, we affirm the judgment of the Superior Court.\\nI\\nFacts and Travel\\nThe defendant was charged with sexually abusing his stepdaughter, Veronica. At trial, Veronica testified that her mother began dating defendant when Veronica was about seven years old, and he moved in with Veronica and her mother some time before they were married. Once they were married in 2009, Veronica testified that she began calling defendant \\\"dad.\\\"\\nIn 2012, Veronica moved with her mother and defendant to defendant's aunt's house in West Warwick. The defendant's aunt passed away that same year. Because defendant was not working at that time, Veronica recalled, he would watch her after school when her mother was at work.\\nAlthough Veronica had a positive relationship with defendant prior to his aunt's passing, she testified that, once she was twelve years old, her relationship with him began to change. Specifically, Veronica remembered defendant speaking about topics that \\\"a normal father wouldn't really talk about,\\\" such as \\\"sexual\\\" topics. For example, Veronica testified that defendant would enter the bathroom while she was showering and speak to her through the curtain, even opening the curtain one time while he was shirtless, pretending as though he planned to get in the shower with her.\\nVeronica testified that, on a number of occasions, defendant showed her some pornographic pamphlets that arrived in the mail and told her that the women in the pictures made money from posing nude. Eventually, Veronica stated, defendant had a few conversations with her about making money if she posed for such pictures. After those conversations, Veronica agreed to take such pictures, explaining that she did so because \\\"in [her] twelve-year[-]old mind\\\" she thought she would \\\"get money\\\" if she did so-money that she could use to purchase \\\"an I-pad, electronics, and stuff like that.\\\"\\nAccording to Veronica, she posed for defendant about five times-once on defendant and her mother's bed, and the other times in the basement. The first time she posed on the bed was in the fall of 2012. She wore no clothes and had on only high-heeled shoes, and defendant instructed her on how to position herself to expose her breasts and vagina to the camera. After defendant took the pictures with the camera on Veronica's cell phone, Veronica removed the SD card and put it in the printer because she was \\\"pretty sure\\\" defendant \\\"couldn't figure out how to work the printer .\\\" Then, defendant told her to delete the photographs from the phone and the SD card. On cross-examination, Veronica explained that defendant told her that he was sending the printed pictures to the owner of Playboy, who he said was a friend of his.\\nVeronica said defendant used a disposable camera to take the downstairs photographs. She recollected that defendant told her to use lubricant and a vibrator so they could get more money for the pictures; Veronica remembered being \\\"reluctant\\\" to use the vibrator because she had \\\"never been penetrated before.\\\" Nevertheless, Veronica testified, defendant \\\"put it in\\\" her, but she held it while he took the pictures. The entirety of the photo shoot lasted about one hour.\\nVeronica recalled telling defendant around her thirteenth birthday that she did not want to take pictures any longer. After that, Veronica testified that defendant asked her to wear a \\\"strap-on\\\" that her mom had \\\"tried on[,]\\\" but Veronica declined.\\nAt this point, Veronica testified, she did not tell her mom what was happening because she believed her mother was happy with defendant and if she said anything, they would break up, and defendant told Veronica that she would be taken away from her mother. She also testified that he told her he would be put in jail and \\\"wouldn't be [her] dad\\\" anymore.\\nAfter Veronica decided she no longer wanted to take the pictures, defendant became more strict with her, which caused tension between them, culminating in a fight over Veronica's failure to clean out her guinea pig's cage. During that fight, Veronica recalled that defendant accused her of not keeping her promises. In response, she showed him a camera she owned at the time, to indicate that she had kept her promise regarding the pictures, but defendant responded that that was in the past and did not matter anymore.\\nVeronica's friend, Nadia, was present at the time of the fight, and both girls went for a walk, during which time Veronica explained to Nadia what defendant had done to her. Nadia expressed to Veronica that she did not know what to do, but that Nadia could explain the situation to Nadia's grandmother. After Nadia did so, her grandmother called Veronica's mother and told her to come to Nadia's house. When Veronica's mother learned what had happened, she returned home to confront defendant about Veronica's allegations.\\nDuring the course of the trial, the trial justice held a voir dire hearing on the issue of permitting defense counsel to question Veronica regarding prior sexual-abuse allegations she purportedly made against her biological father when she was five years old. The state attempted to keep this evidence out at trial, while the defense argued that it was relevant to Veronica's motive to lie about sexual assault by father figures in her life. The trial justice ultimately precluded defense counsel from pursuing this line of questioning, and this decision is at issue in this appeal.\\nVeronica's mother also testified at trial. She testified that Veronica's biological father had \\\"sporadic\\\" visitation with Veronica from 2000 to 2005. She testified that, in 2007, defendant moved in with her and Veronica at their Coventry residence. At that time, Veronica's grandmother lived with them and was primarily responsible for the care of Veronica while Veronica's mother was at work. Eventually, Veronica's mother and defendant moved with Veronica to the West Warwick house, at which time defendant was unemployed and took over watching Veronica in the mornings and afternoons.\\nVeronica's mother recalled that, in April 2014, her daughter wanted to go to a birthday party, but defendant said that she could not go because she had not cleaned her guinea pig's cage. After the argument between Veronica and defendant ended, Veronica's mother took Veronica and her friend, Nadia, to a store, after which the girls went to Nadia's house. Soon after, Veronica's mother remembered receiving a phone call from Nadia, asking her to come to Nadia's house because Nadia's grandmother wanted to speak to her. When Veronica's mother arrived at the house, she discovered Veronica crying, sitting in the passenger's seat of Nadia's grandmother's car. When Veronica calmed down, Veronica told her that defendant had taken nude photographs of her and that she did not want to return home.\\nWhen Veronica's mother first confronted defendant, he initially denied the allegations, and he stated, \\\" 'I knew this was coming. Get [Veronica] so we can talk.' \\\" Veronica's mother met Veronica at another store, where Nadia's grandmother had taken the two girls, and, in the car, Veronica shared details with her mother regarding the sexual assaults-including that defendant used a vibrator on her.\\nAfter Veronica's mother went back to her house for a second time, she again spoke with defendant; she testified that he said, \\\" 'It was all her idea.' \\\" Veronica's mother told defendant to move out of the house, and he complied. The next day, Veronica's mother called the police to give a statement, and the police confiscated two laptops and Veronica's old cell phone; at some point later, she gave police defendant's old cell phone as well.\\nNadia also testified at trial. She recalled the day of Veronica's argument with defendant over failing to clean her pet's cage and not attending a birthday party; she also recalled Veronica telling her that defendant had taken nude pictures of her. Nadia testified that the girls took a walk together, during which Veronica told her that defendant had taken the pictures of her and touched her.\\nOfficer Trenna Beltrami of the West Warwick Police Department testified on behalf of the state. She recalled being dispatched to a West Warwick address because Veronica's mother had requested to speak with a female police officer to report her husband having taken nude photographs of her daughter. Officer Beltrami stated that Veronica's mother told her that her daughter had explained that, in the photographs, a vibrator was used as well as a \\\"strap-on sex toy,\\\" which had been thrown in the trash. When she spoke with Veronica, Officer Beltrami remembered that she was told that the photographs were taken upstairs at first, and the rest were taken in the basement of the house. During that house call, Officer Beltrami also retrieved a \\\"strap-on\\\" and a bottle of lubricant from the trash can.\\nDetective Jonathan Izzi of the West Warwick Police Department testified that he had reviewed the statements that Veronica and her mother had given to Officer Beltrami, and he visited their house to follow up on the case. Veronica's mother gave Det. Izzi two laptop computers and defendant's old cell phone, which Det. Izzi turned over to the Rhode Island State Police Forensic Computer Unit, along with Veronica's cell phone. However, Brittnee Morgan, a digital forensic analyst for the Rhode Island State Police, testified that, when she conducted the analysis on the devices on June 2, 2014, she did not recover any pictures of a young, nude female.\\nAt the end of the trial, the jury convicted defendant on both counts, and defendant moved for a new trial. The trial justice denied the motion for a new trial and sentenced defendant to fifty years' imprisonment, with thirty-five years to serve and the balance suspended with probation on the first count, and five years' imprisonment with three to serve and the balance suspended with probation on the second count, both to run concurrently. The defendant timely appealed to this Court.\\nII\\nStandard of Review\\nUpon review of a trial justice's evidentiary ruling, we only overturn that decision where it \\\"constitutes an abuse of [his or her] discretion that prejudices the complaining party.\\\" State v. Manning , 973 A.2d 524, 530 (R.I. 2009) (quoting State v. Hallenbeck , 878 A.2d 992, 1015 (R.I. 2005) ). \\\"[T]he exercise of discretion by the trial justice in limiting the scope of cross-examination will not be disturbed absent a clear abuse of that discretion.\\\" State v. Ogoffa , 159 A.3d 1043, 1049 (R.I. 2017) (quoting State v. Walsh , 731 A.2d 696, 698 (R.I. 1999) ). While criminal defendants possess the constitutional right \\\"to cross-examine prosecution witnesses,\\\" such a right \\\"is far from absolute.\\\" Manning , 973 A.2d at 530 (quoting State v. Merida , 960 A.2d 228, 234 (R.I. 2008) ). This constitutional right \\\"is tempered by the dictates of practicality and judicial economy; trial justices are authorized to exercise sound discretion in limiting the scope of cross-examination.\\\" Id. (quoting Merida , 960 A.2d at 234 ).\\nIII\\nDiscussion\\nOn appeal, defendant appears to limit his argument to what he alleges is the trial justice's violation of his Sixth Amendment right to cross-examine the complaining witness regarding her allegations against her biological father. He argues that it precluded him from exposing Veronica's bias and motive to lie.\\nThe Sixth Amendment to the United States Constitution and article 1, section 10 of the Rhode Island Constitution\\\"guarantee individuals accused of criminal charges the right to confront and cross-examine any adverse witnesses who testify against them.\\\" Manning , 973 A.2d at 530 (quoting State v. Dorsey , 783 A.2d 947, 950 (R.I. 2001) ). Through cross-examination of a witness, an attorney has the ability \\\"to test a witness's veracity and credibility and to discredit [his or her] testimony as is necessary.\\\" State v. Pettiway , 657 A.2d 161, 163 (R.I. 1995). However, this is not an unfettered right, and \\\"it may be circumscribed within reasonable parameters of relevance in the exercise of the trial justice's discretion.\\\" Dorsey , 783 A.2d at 950. As long as there is an opportunity for \\\" 'sufficient cross-examination to satisfy a defendant's constitutional confrontation rights,' the trial justice may exercise his sound discretion in limiting further cross-examination.\\\" Manning , 973 A.2d at 531 (quoting State v. Brown , 709 A.2d 465, 473 (R.I. 1998) ).\\nThe United States Supreme Court has recognized that \\\"establishing the witness's motives or bias in testifying is a key part of the constitutionally protected right to cross-examination,\\\" Dorsey , 783 A.2d at 951 (citing Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ), but \\\"the evidence offered to prove motivation or bias must be related to the charge the defendant is facing.\\\" Dorsey , 783 A.2d at 951. Accordingly, \\\"evidence of a complaining witness's similar accusations of wrongdoing against others may be used to challenge a witness's credibility with respect to the pending charges, regardless of whether those prior accusations ever were proved false.\\\" Id. ; see also State v. Oliveira , 576 A.2d 111, 113 (R.I. 1990) (\\\"The defendant's inability to prove that prior accusations were in fact false does not make the fact that prior accusations were made irrelevant.\\\"). In fact, \\\"a trial justice lacks the discretion 'to completely (or virtually so) prohibit defense counsel from attempting to elicit testimony regarding bias on the part of the witness[.]' \\\" State v. Clark , 974 A.2d 558, 575 (R.I. 2009) (quoting State v. Tiernan , 941 A.2d 129, 134 (R.I. 2008) ). \\\"[T]his includes relevant testimony that might be substantially outweighed by the evidentiary factors set forth in Rule 403 of the Rhode Island Rules of Evidence.\\\" Id.\\nHere, defendant argues that he should have been permitted to inquire as to Veronica's former sexual-abuse allegations against her biological father. See Pettiway , 657 A.2d at 163 (acknowledging the defendant's argument that his constitutional rights were violated when he was not allowed to show that the complaining witness \\\"lodged sexual-abuse allegations against other men\\\"). In Pettiway , we held that the defendant's right to confrontation was limited where he was foreclosed from inquiring into the complaining witness's pattern of alleging sexual abuse by her mother's boyfriends. Id. at 163-64. We acknowledged that it was \\\"sheer speculation that the jury would have accepted this line of reasoning[,]\\\" but we concluded that the jury was \\\"entitled to consider the defense theory so that [it] could make an informed judgment about the weight to place on [the witness's] testimony.\\\" Id. at 164.\\nHowever, in a number of sexual-abuse cases decided since Pettiway , we have determined that a defendant's right to confrontation was not violated where prior allegations were \\\"fundamentally different\\\" from the ones faced by that defendant. See Dorsey , 783 A.2d at 951, 953 (determining that a twenty-seven-year-old complaining witness's sexual-assault allegations against an unnamed boy were not similar to her allegations that her husband, the defendant, raped her because they were made when the witness was a young teenager regarding events that occurred when she was only seven years old); see also State v. Botelho , 753 A.2d 343, 345, 347 (R.I. 2000) (concluding that precluding cross-examination of a complaining witness was not abuse of discretion where the complaining witness's DCYF complaint against her father related to physical abuse, not sexual abuse like the complaints against the defendant, who was her mother's boyfriend).\\nBefore ruling on the admissibility of the evidence at issue, the trial justice first heard argument from counsel, including defense counsel's Sixth Amendment argument. Initially, the trial justice decided that, despite the fact that he had some concerns as to whether Veronica was competent to make such allegations because she was very young at the time, \\\"the [Sixth] [A]mendment rights of defendant\\\" required that defense counsel be permitted to ask about such events \\\"in a very limited way.\\\" The motive-to-lie argument that the defense first pursued at trial was that Veronica made allegations against father figures when she was not happy with their actions.\\nAfter Veronica's direct examination, the trial justice decided that, based on the issue raised regarding Veronica's allegations against her biological father in \\\"the oral motion in limine[,] it would be helpful for the [c]ourt to hear certain testimony of [Veronica] outside of the presence of the jury.\\\" During that voir dire hearing, defense counsel introduced records from St. Mary's Home for Children regarding behavior management services for Veronica when she was around five years old.\\nThe March 2006 record, written by a Children Intensive Services clinician, states the following:\\n\\\"In December 2004 [Veronica] told her mother 'daddy touched my froggie' (vagina) . [Veronica] also showed this worker a picture diary and explained the pictures to this worker. [Veronica] described one picture as her father touching her chest area and her private parts. [Veronica] also explained that one picture is her father burning in a fire and that she would not help him and was happy when he died.\\\"\\nWhen defense counsel inquired as to whether she recalled making such allegations about her biological father, Veronica vacillated between remembering making the allegations and not recollecting anything other than what her mother told her had happened.\\nShe first testified that she remembered only what she had been told:\\n\\\"Q: And do you have a memory of ever saying to anybody that your father touched you in an inappropriate way?\\n\\\"A: I don't have a memory of saying it, but I have the memory of being told I have said that.\\\"\\nThen, she acknowledged that she did recall some things:\\n\\\"Q: By reading the third paragraph does that refresh your memory today about something you said about your biological father?\\n\\\"A: I remember saying my father did do something, but I clearly don't remember the exact words I said when I was five.\\n\\\"\\n\\\"Q: So it was clear that you remember telling your mom that your father touched you, he touched your froggy? You have a memory of that?\\n\\\"A: Yeah.\\\"\\nWhen the prosecutor questioned Veronica, she testified, in part, as follows:\\n\\\"A. Like, I remember one day that I was drawing out on this little like marker board something that happened with my father and that's all I remember.\\n\\\"\\n\\\"Q: Do you remember having a conversation with your mom [when you were five years old] saying, Dad touched my chest or Dad touched my Froggy?\\n\\\"A: I think I do remember saying, 'Daddy touched my Froggy,' but also that's what my mom told me too.\\\"\\nHowever, she later appeared to waver on whether she recalled drawing the pictures, when she explained the following:\\n\\\"Q: The first exhibit is some stick figures. It appears to be a female and a male, some appear to be holding hands, some appear to be touching in other places, but you recall drawing that?\\n\\\"A: No.\\\"\\nAnd later,\\n\\\"Q: Do you remember your dad touching your breasts or vagina? Once again, when I say dad, I'm talking about your biological father. Do you have an independent recollection of him touching your vagina?\\n\\\"A: No.\\\"\\nAt the end of the voir dire hearing, before the trial justice ruled on the motion in limine , defense counsel submitted a variation on its first theory as to Veronica's bias-\\\"[W]henever somebody is coming into her life, another man, we sort of have the same pattern of making allegations.\\\" In ruling on the evidentiary motion, the trial justice principally relied on Rule 608(b) and Rule 403, as opposed to the Sixth Amendment, on which defendant now bases his appeal. The trial justice found that Veronica had no recollection of \\\"making any statement about recanting[,]\\\" and he also noted that the purported incident occurred when Veronica was five years old, quite a number of years before defendant's alleged actions in the case at bar.\\nFinally, the trial justice reasoned as follows:\\n\\\"[T]he only potential evidence or information of this is a hearsay report certainly extrinsic evidence, and the [c]ourt can't get beyond the fact listening to that that other than this new theory that maybe the father came back in her life when she was [thirteen] that the only possible reason for this testimony would be to impermissibly put in the jury's mind that she somehow lied before and somehow she is lying in this case and that clearly is impermissible.\\\"\\nThe trial justice concluded that, even assuming that the defense successfully got past a Rule 608 analysis, the trial justice would still keep the evidence out on Rule 403 grounds. In conclusion, the trial justice ruled that Veronica's testimony was not admissible pursuant to Rule 608, and furthermore, it was unfairly prejudicial under Rule 403, and defense counsel was not permitted to engage in that line of questioning in the presence of the jury.\\nThe purported motive defense counsel sought to elucidate was whether Veronica had a pattern of making sexual-abuse allegations against father figures whom she no longer wanted in her life. As was evidenced by her testimony during the voir dire hearing and highlighted by the trial justice, it is clear that Veronica wavered back and forth regarding whether she remembered making such allegations against her biological father, or whether she was simply recalling what her mother had told her. While we do acknowledge that both allegations were of sexual misconduct against father figures, the accusations defense counsel sought to introduce were different from the specific allegations against defendant of sexual penetration and the taking of nude photographs. Not only did the abuse by her biological father purportedly occur when Veronica was five years old or younger, she also made the allegations at that tender age. See Dorsey , 783 A.2d at 953 (highlighting the difference between sexual-assault allegations made when the complaining witness was twenty-seven years old and sexual-abuse allegations made against someone other than the defendant when she was thirteen years old regarding events that occurred when she was only seven years old). The trial justice found that defense counsel failed to lay a foundation for his requested line of questioning-to demonstrate that Veronica remembered making these allegations. Based upon the lack of reliable testimony on the matter, it was well within the trial justice's discretion to not permit such questioning at trial. See Cookson v. Schwartz , 556 F.3d 647, 655 (7th Cir. 2009) (upholding appellate court's affirmance of a trial justice's refusal to permit the defendant to inquire into victim's sexual-abuse allegations against another individual and reasoning that the trial justice had concluded that the victim \\\"was not clever enough to concoct false allegations of sexual abuse[,]\\\" which was a \\\"factual determination on a matter so quintessentially within the province of a trial judge who had the unique opportunity to observe the witness\\\"); but see Henry v. Speckard , 22 F.3d 1209, 1215 (2d Cir. 1994) (determining that the defendant's right to confrontation was violated where the trial justice precluded the defendant from inquiring into whether the victim had a motive to make false allegations of sexual abuse against the defendant because she resented having to babysit her siblings).\\nMost fatal to defendant's case, however, is the fact that defense counsel failed to attempt this line of questioning once the jury was brought back into the courtroom. After he ruled on the oral motion in limine , the trial justice explained to defense counsel that, if he wanted to pursue, in his words, whether Veronica \\\"had a memory of telling someone that her father had touched her froggy,\\\" he could \\\"ask for a sidebar and we'll address it .\\\" However, defense counsel never asked such questions, which constitutes a waiver of the issue. See State v. Tejeda , 171 A.3d 983, 1001 (R.I. 2017) (\\\"We repeatedly have expressed our view that a failure to object in the vital context of the trial itself (except where the in limine ruling was unequivocally definitive) [constitutes] a waiver of the evidentiary objection and [is] therefore an issue that may not be raised on appeal.\\\" (quoting State v. Andujar , 899 A.2d 1209, 1222 (R.I. 2006) ) ).\\nMoreover, \\\"[w]hat is required for a fair trial is 'that reasonable latitude be given the cross-examiner. This latitude should include an opportunity for a defendant to establish or reveal possible bias, prejudice, or ulterior motives as they may relate to the case being tried.' \\\" Ogoffa , 159 A.3d at 1052 (quoting Tiernan , 941 A.2d at 134 ). At trial, defense counsel did have the opportunity to thoroughly attack Veronica's credibility when he asked her about the defendant's role as a disciplinarian in her life, including how strict she perceived him to be. In other words, the defendant was afforded an opportunity to inquire into Veronica's purported motive to bring false accusations against the defendant. But see Oliveira , 576 A.2d at 113 (\\\"By not allowing [the] defendant the opportunity to challenge [the complaining witness's] credibility, the trial justice inappropriately infringed on [the] defendant's Sixth Amendment rights of confrontation and effective cross-examination.\\\"). As such, we conclude that the trial justice did not abuse his discretion in precluding the admission of this evidence.\\nIV\\nConclusion\\nFor the foregoing reasons, the defendant's appeal is denied and dismissed, and the judgment appealed from is affirmed. The papers in the case are remanded to the Superior Court.\\nWe use pseudonyms to identify the complaining witness and other minors referenced in this opinion.\\nAt the time she responded to the call, Officer Beltrami's last name was Heemond.\\nWhile the state addresses both this argument and an argument under Rule 608 of the Rhode Island Rules of Evidence, defendant states in his reply brief that he is focused only on the Sixth Amendment right to cross-examine to demonstrate motive to lie, rather than the general credibility of the witness implicated by Rule 608. See State v. Manning , 973 A.2d 524, 534, 535 (R.I. 2009) (recognizing the difference between evidentiary rulings based on impeachment of the general credibility of a witness and cross-examination related to a complaining witness's bias or motive).\\nThe trial justice also mentioned Rule 403 of the Rhode Island Rules of Evidence at this point, explaining that:\\n\\\"In terms of the 403 analysis, the [c]ourt is going to make that determination on a question-by-question basis through objections. The [c]ourt does not believe as a whole the topic is so prejudicial. However, as the [c]ourt mentioned during argument on this, we can ask the witness in terms of her recollection and other things. It may be possible to attempt to refresh her recollection based on an answer to a question, but the information used to refresh her recollection is not evidence and will not be read to the jury any more.\\\"\\nSimilarly, a Children Intensive Services record from November 2005 states:\\n\\\"[Veronica] disclosed to her mother on (12/29/04) that her father touched her 'frog' (vagina) and drew a picture of her father putting his hands on her chest area and privates. [Veronica's mother] appropriately called the DCYF hotline in December 2004 after [Veronica] disclosed to her. [Veronica] has not seen her father since the disclosure.\\\"\\nRule 608(b) provides:\\n\\\"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness'[s] credibility, other than conviction of crime as provided in Rule 609, or, in the discretion of the trial judge, evidence of prior similar false accusations, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness'[s] character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.\\\"\\nRule 403 provides that \\\"[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\\\"\\nThe trial justice explained:\\n\\\"What the [c]ourt has heard in terms of balancing any evidence that may come in with the evidence to the jury as opposed to the prejudicial [e]ffect certainly with there being no memory and no admissible evidence, the [c]ourt finds that any questioning or testimony would be more prejudicial and certainly the [c]ourt can advise the jury that the questions themselves are not evidence only the answers. The [c]ourt believes based on their [sic ] being no foundation, we would ask the questions and have a sustained objection and we would never get there.\\\"\\nWhile it was not addressed below or asserted by the parties, we pause to note that Rule 602 of the Rhode Island Rules of Evidence, in pertinent part, provides the following:\\n\\\"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself or herself.\\\"\"}"

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+"{\"id\": \"1316805\", \"name\": \"Antone Enos vs. R. I. Suburban Railway Company\", \"name_abbreviation\": \"Enos v. R. I. Suburban Railway Co.\", \"decision_date\": \"1908-10-28\", \"docket_number\": \"\", \"first_page\": \"297\", \"last_page\": \"303\", \"citations\": \"29 R.I. 297\", \"volume\": \"29\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T21:27:38.270631+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Dubois, Blodgett, Johnson, and Parkhurst, JJ.\", \"parties\": \"Antone Enos vs. R. I. Suburban Railway Company.\", \"head_matter\": \"Antone Enos vs. R. I. Suburban Railway Company.\\nOCTOBER 28, 1908.\\nPresent: Dubois, Blodgett, Johnson, and Parkhurst, JJ.\\n\\u25a0(1) Petition to Establish Truth of Exceptions.\\nUpon a petition to establish the truth of exceptions brought under C. P. A., \\u00a7 494 -, wherein the plaintiff prayed that certain of defendant\\u2019s exceptions be disallowed and stricken from the bill, after this remedy has been invoked by either party its scope can not be restricted by the form of the prayer of the petition, but the court will endeavor to ascertain the truth; and this can not always be done by excision.\\n\\u2022(2) Bills of Exceptions. Stating Exceptions Separately.\\nThe statutory requirement contained in C. P. A., \\u00a7 490, that the exceptions shall be stated separately and clearly, is intended for the benefit of the opposing party as well as for the court.\\n(3) Stating Exceptions Clearly and Separately.\\nAn exception to rulings upon the ground that the court erred in \\u201cadmitting or refusing to admit certain evidence \\u201d is not clear, within the meaning of the statute, when it appears that the rulings were confined to refusals to admit testimony. Neither is it stating clearly and separately to group in one exception eight rulings, contained on various pages of the transcript of testimony, but the defendant should have set out the eight exceptions to the refusal of the court to admit the testimony offered.\\n\\u2022(4) Establishing Truth of Exceptions.\\nAlthough it appears from the transcript that the grounds of the objections which were the foundation of the exceptions were only stated in four instances, the court, gathering from the context the probable ground of the other objections, and from an examination of the bill and transcript finding that the whole number of exceptions were saved, will establish the truth that such exceptions were in fact taken and will allow the same to be prop\\u2022erly set out in the bill by amendment.\\n(5) Exceptions.\\nA remark by counsel, to a statement made by opposing counsel, \\u201cI take-exception to that, \\u201d without more, where no exception was allowed by the-court, can not'be considered an exception within the meaning of the term,, as a foundation for a bill of exceptions.\\nTrespass on the Case for negligence. Heard on plaintiff\\u2019s-petition to establish truth of defendant\\u2019s bill of exceptions, under C. P. A., \\u00a7 494.\\nSome exceptions established, and bill allowed to be amended.\", \"word_count\": \"2384\", \"char_count\": \"13762\", \"text\": \"Dubois, J.\\nThis case comes before this court upon the plaintiff's petition to establish the truth of the defendant's-bill of exceptions, under C. P. A., \\u00a7 494, which reads as-follows: \\\"If the justice who presided at the trial shall, for a period of twenty days after a bill of exceptions has been filed,, fail to act upon or return the same, or shall disallow, alter, or refuse to alter the same, and either party is aggrieved thereby, the truth of the exceptions may be established before the supreme court upon petition stating the facts, filed within thirty days after the filing of the bill of exceptions in the-superior court; and thereupon, the truth of the exceptions-being established in such manner as the court shall by rule-prescribe, they shall be heard and the same proceedings taken as if the exceptions had been duly allowed and filed. And upon such petition being filed, the supreme court may order the-clerk of the superior court to certify and transmit to the clerk of the supreme court the papers in the cause.\\\"\\nThe material portion of the plaintiff's petition is of the tenor-following :\\n\\\" Respectfully represents Antone Enos, that he is the plaintiff' in the above entitled case entered in the Superior Court in the County of Providence and Numbered 20465; that said case was tried before the Honorable George T. Brown, a Justice-of the Superior Court holden at Providence, within and for the County of Providence, on the 30th day of December, 1907,. and following days, and on the second day of January, 1908, the jury returned a verdict for the plaintiff in the sum of Two Thousand Seven Hundred and Fifty Dollars ($2750);. that on the 11th day of March, the said Justice filed a decision granting the defendant's motion for a new trial unless the plaintiff remit One Thousand Dollars ($1000) from the amount of the said verdict within ten days; that on the 25th day of May, the defendant filed its Bill of Exceptions; that at a hearing fixed by said Justice, Counsel for the plaintiff objected to the allowance of said bill as the defendant's Bill of Exceptions, but the said Justice on the 28th day of May, allowed said bill and transcript.\\n\\\"And your petitioner says that he is aggrieved by the ruling of said Justice in allowing said Bill of Exceptions, and he is aggrieved by the refusal of said Justice to alter the same and to disallow the same as prayed for by the petitioner at said hearing, for the following reasons:\\n\\\"1. The defendant has not stated separately and clearly the exceptions relied upon.\\n\\\"2. The first group of rulings in said bill should have been stricken out for the reason that the' defendant has not stated separately and clearly the exceptions therein relied upon.\\n\\\"Wherefore your petitioner prays that the truth of the exceptions shall be established by this Court, and that the alleged exceptions to the first group of rulings be disallowed and be stricken from said bill.\\\"\\nThe defendant's bill of exceptions, the truth of which is sought to be established in this proceeding, reads as follows:\\n\\\"The defendant in the above entitled action comes and files its bill of exceptions and says that said case was tried before the Honorable George T. Brown, one of the justices of said court, and a jury, on the 30th day of December, 1907, and the 2nd day of January, 1908, and a verdict was rendered for the plaintiff in the sum of $2750,00; and that certain exceptions have been taken by said defendant in the proceedings in said case, as follows :\\n\\\"1. To certain rulings of said justice, at the trial of said action, admitting or refusing to admit certain evidence, as shown on pages 158, 182, 193, and 196 of the transcript of testimony, etc., filed herewith.\\n\\\"2. To the refusal of said justice, at said trial, to direct a verdict for the defendant, as shown on page 210 of said transcript.\\n\\\"3. To a certain statement made by plaintiff's attorney during the course of said trial, to which exception is noted on page 43 of said transcript.\\n\\\"4. To the decision of said court denying the defendant's motion for a new trial, which motion was based upon the following grounds :\\n\\\" (a) That said verdict is contrary to the evidence and the weight thereof.\\n\\\" (b) That said verdict is contrary to the law.\\n\\\" (c) That the amount of damages awarded by said verdict is excessive.\\n\\\"And the defendant insists that all of said rulings were erroneous, and that said errors entitle it either to a new trial or to a judgment entered in its behalf. Wherefore the defendant tenders this its bill of exceptions, and prays that the same may be allowed by the court in accordance with law.\\\"\\nThe evident purpose of C. P. A., \\u00a7 494, is to confer upon this court jurisdiction over exceptions, that their truth may be established.\\nAs we have heretofore said in Vester v. Rhode Island Co., 29 R. I. 214: \\\"Under C. P. A., \\u00a7 492, the justice who presided at the trial shall examine bills of exceptions and hear the parties, and if he shall find the exceptions, rulings, instructions, and findings correctly stated, he shall allow them. The burden of ascertaining whether the exceptions are stated clearly and separately is properly placed upon the trial justice to whose rulings the exceptions were taken; but no exception to his allowance is permitted by the statute.. The only remedy provided for either party aggrieved by the failure of the justice to act upon the bill of exceptions, or to return the same, or to his disallowance of, alteration of,- or refusal to alter the same, is to establish the truth of the exceptions before this court upon petition stating the facts under C. P. A., \\u00a7 494.\\\"\\nBut when this remedy has been invoked by either party, its scope can not be restricted by the form of the prayer of the petitioner. The court will endeavor to ascertain the truth of the exceptions, and this can not always be done by excision.\\nIn ascertaining whether the exceptions, rulings, etc.,were correctly stated the trial justice had not only the bill of exceptions and transcript of the evidence before him and the counsel for the respective parties to aid him, but he had also the assistance of his memory as to what transpired at the trial. Necessarily we can have no such recollection. In the case at bar we have been obliged to ascertain the truth of the exceptions from an examination of the bill of exceptions and the transcript of testimony. But in making the examination and in arriving at our conclusions we have not been hampered by technicalities. The statutory requirement contained in C. P. A.,\\u00a7 490, in the words \\\"shall state separately and clearly the exceptions relied upon,\\\" is intended for the benefit of the opposing party as well as for the benefit of the court upon its examination of the exceptions; so that it should be clearly apparent to such party upon what grounds exceptions will be urged before the court in order that he may be advised upon what questions he must prepare his brief for the argument of the case. If, as frequently happens, an examination of the case by the excepting party eliminates a large number of questions which are deemed to be immaterial upon final consideration, it is for the benefit of the court as well as of the opposing party that those questions be eliminated in the frame of the bill of exceptions so that the real questions intended to be litigated shall be presented upon bill of exceptions rather than that the bill of exceptions should be so general in its character as to be notice to the opposing party of the intention to litigate every possible question which appears to be reserved upon the transcript. This work of elimination has to be done sooner or later, and it might well be done upon the bill of exceptions in the first place rather than upon the briefs upon final argument, thereby relieving the opposing party of the apparent necessity of discussing questions which in the end are waived by the excepting party.\\nParagraph one of the defendant's bill of exceptions, herein-before set forth, does not comply with such statutory require ment. In the first place it is not clear to except to certain rulings upon the ground that the court erred in \\\"admitting or refusing to admit certain evidence,\\\" when in fact the rulings of the court were confined to refusals to admit testimony. Neither is it stating clearly and separately to group in one exception eight rulings whereof two are shown on one page, four upon another, and one each on other pages of the transcript \\u2022of testimony. The grounds of the objections which were the foundation of the exceptions are only stated in four instances, viz.: the first objection in which the ground was stated (immateriality) was made to Q. 25, on p. 158 of the transcript of testimony; the second (want of notice to plaintiff) appears to Q. 48, on p. 182 thereof; the third (want of materiality) to \\u2022Q. 200, on p. 192, exception saved on p. 193 thereof; and the fourth (\\\"same objection\\\") to Q. 101, on p. 193 aforesaid. While it is possible for the court to gather from the context the probable ground of the other objections, it is just as easy, or easier, for the counsel who were engaged in the trial of the cause to do this, and save the court this trouble.\\nThe defendant should have set out his eight exceptions to the refusal of the court to admit the testimony offered. This court, having examined the bill of exceptions and transcript, finds that the defendant did save eight exceptions, as aforesaid, and their truth, that is, the truth that such exceptions in fact were taken, is established, and the same may be properly set out in the bill of exceptions by amendment.\\nThe truth of the exception referred to in the second paragraph of the defendant's bill of exceptions is also established, and is allowed. It may be necessary, however, to renumber the same, and permission is granted for that purpose.\\nThe truth of the exception mentioned in the third paragraph of said bill is not established. No exception was taken to any ruling of the court. The incident appears in the transcript of the plaintiff's testimony as follows: \\\"Q. 354. Then \\u2014 \\u2022 didn't you say in direct examination that the passenger car that you took to go home that night was going about as fast as it could go? A. Well, I don't know; took my ticket to get .a ride to the conductor and \\u2014 (question repeated by stenographer). A. About quarter of or twenty minutes of one.\\nWaterman, Curran & Hunt, for plaintiff.\\nJoseph C. Sweeney and Clifford Whipple, for defendant.\\n\\\"Mr. Waterman: He is hard of hearing, and I think the accident affected his ears.\\n\\\" Mr. Rice : I take exception to that.\\n\\\" The Court : I think there is no such allegation.\\n\\\"Mr. Rice: I think it is very improper for counsel to say it before the jury.\\\" There the matter was allowed to rest. No exception was taken in the proper sense of the term, and none was allowed by the Superior Court at the time. The truth of this exception not having been established, the same is disallowed.\\nThe truth of the exception contained in the fourth paragraph of the bill is established; the same is not objectionable, because the grounds on which the motion was founded are set out, and the same is allowed.\\nThe truth of the exceptions having been established, as hereinbefore set forth, the bill of exceptions may be amended accordingly, and the cause will stand for further proceedings.\"}"

ri/1329007.json

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+"{\"id\": \"1329007\", \"name\": \"Louis J. Doyle et ux. vs. William Harris\", \"name_abbreviation\": \"Doyle v. Harris\", \"decision_date\": \"1877-03-27\", \"docket_number\": \"\", \"first_page\": \"539\", \"last_page\": \"542\", \"citations\": \"11 R.I. 539\", \"volume\": \"11\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T18:37:48.414453+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Louis J. Doyle et ux. vs. William Harris.\", \"head_matter\": \"PROVIDENCE COUNTY.\\nLouis J. Doyle et ux. vs. William Harris.\\nA complainant suing for specific performance must show that he has not been in default.\\nHence, when a contract for the sale of land provided for the payment of the \\u201cbalance of the purchase money \\u201d ata time certain, and the court, from evidence which was conflicting, found the time had been extended by agreement to a day certain, and'the vendee did not then pay, nor did he claim that he had ever tendered the price and demanded a deed ; the court dismissed the vendee\\u2019s bill for specific performance.\\nSemble, that in this country the tender of a deed by the vendee is unnecessary in order to put the vendor in default, as the deed is to be prepared by the vendor.\\nBill in equity for specific performance brought upon the following contract: \\u2014\\n\\u201c Received of Sarah E. H. Doyle, wife of Louis J. Doyle, one hundred dollars, on account of the purchase of lot 105, and part of another on the Dean estate. Said lot is 39.72 feet front on Bridgham Street, one hundred feet deep, and fifty-five feet on rear line. Price of same to be seventy-five cents per square foot. Balance of purchase money to be paid in two months, when a good and satisfactory deed to be given. Interest at 7 pr. ct. from this date. William Harris.\\n\\u201c PitoviDEJtfCE, October 4, 1871.\\u201d\\nThe facts are stated in the opinion of the court.\\nMarch 27, 1877.\", \"word_count\": \"1503\", \"char_count\": \"8288\", \"text\": \"Potter, J.\\nIt is essential to any contract that there should be parties on both sides competent to contract.; and the statute of frauds makes no difference in that respect.\\nThe complainant on this point relies on Ives v. Hazard, 4 R. I. 14, 28, as disposing of the question of mutuality. In that case both parties were competent to contract, and the question was whether they had contracted, and whether the agreement signed by only one party was sufficient. It is not therefore decisive of this case. Flight v. Bolland, 4 Russ. 298.\\nUpon the point that a feme covert having a separate statutory estate can make contracts to bind that estate, as she could in some cases her equitable separate estate, it is not necessary here to decide.\\nThe case comes before us upon bill, answer, and replication and the depositions of L. J. Doyle, the husband of the complainant, and of the respondent. The answer, therefore, is to be taken as conclusive so far as it is responsive to the bill, unless there is testimony to vary the effect of it.\\nThe bill, after alleging the agreement, proceeds to allege that the complainants have always been ready and willing to pay when the title was shown and a conveyance made free of incumbrances. It alleges no demand for a deed or tender of one, or tender or offer to pay.\\nThe answer, after denying any agreement with Louis J. Doyle, states that the only agreement was with Mrs. Doyle by an agent, and claims benefit of this as by demurrer. It then goes on to state, that, after the time expired, namely, December 4, Mr. Doyle said he could not pay then, and asked delay until December 15, which was verbally granted, but that although the respondent has always been ready to give a deed, the complainants never at any time demanded a deed, or paid or offered to pay the remainder of the money.\\nLouis J. Doyle, in his deposition, says that he called on the respondent on December 4, when the time expired, and asked for further time, and that nothing was said about extending it for any definite period.\\nThe respondent, in his deposition, says that Doyle called on him a few days after December 4th, and further states that the value of the land had materially risen between the middle of December, 1871, and the filing of this bill.\\nThe argument of the complainants proceeds on the ground that they were not bound to offer the money until the other party tendered them a deed.\\nIf the respondent was suing for performance, it would then be important for him to show that he had tendered a sufficient deed.\\nBut here the complainants claim performance as vendees.\\nBy the English practice, in order to put the vendor in default, the vendee must not only tender the money, but must himself prepare and offer a deed to be executed by the vendor. And many of the English cases have turned on the difficulty of making a good. title, growing out of their intricate system of real estate law.\\nWhile there are conflicting cases in this country, we believe the weight of authority to be that the tender of a deed by the vendee is unnecessary, as it is generally prepared by and at the expense of the vendor. See notes to Sugden's Yendors & Purchasers, *263. And in the United States Supreme Court, in Taylor v. Longworth et al. 14 Pet. 172, Judge Story, delivering the opinion of the court, holds that the local practice should prevail ; and the general understanding here, we believe, has been that the vendor is to prepare the deed.\\nAt law the vendee suing must show either a strict performance on his part, or a tender and refusal.\\nAnd in equity the party suing is not discharged from performance anymore than at law, except in cases of accident or mistake on his part, or laches or default on the other side. He must show that he has not been in default himself. Walker v. Jeffreys, 1 Hare, 341, 348, 352; Voorhees v. De Meyer, 2 Barb. S. C. 37. Equity excuses actual performance in some cases where it would have been of no avail, as where a tender would have been refused. Fry on Specific Performance, \\u00a7 619 ; Hunter v. Daniel, 4 Hare, 420, 433. So in cases of accident or mistake, or justifiable excuse, where the other party suffers no injury. Longworth v. Taylor, 1 McLean, 395, 400, 402. He must perform or show a readiness to perform, or some default of the other party which excuses him. McNeil v. Magee, 5 Mason, 244, 256 ; Fry on Specific Performance, \\u00a7 608; 2 Eq. Ca. Abr. 33; Wood v. Perry, 1 Barb. S. C. 114, 131. And the respondent's negligence cannot excuse the complainant. Fry on Specific Performance, \\u00a7 608. And if the court finds that there was a sufficient excuse, that delay of payment has not operated injuriously, that the condition of the parties and the value of the property remain unchanged, and the same justice can be done, it will grant relief. Longworth v. Taylor, 1 McLean, 395, 400, 402; Opinion of Story, J., in Taylor v. Longworth et al. 14 Pet. 172; Doloret v. Rothschild, 1 Sim. & Stu. 590 ; Crofton v. Ormsby, 2 Sch. & Lef. 583, 603; Benedict v. Lynch, 1 Johns. Ch. 370; Scott v. Fields et als. 7 Ohio, 2d part, 90, and cases there cited.\\nA. A. D. Payne and John C. Pegram, for complainants.\\nVincent Carpenter, for respondent.\\nIt is a matter for the sound discretion of the court whether to decree specific performance or leave the parties to their remedy at law. Simmons v. Hill et al. 4 Har. & McH. 252; Willard v. Tayloe, 8 Wall. 557 ; Marble Co. v. Ripley, 10 Wall. 339.\\nChancellor Kent, in Benedict v. Lynch, 1 Johns. Ch. 370, 376, thus comments on the mischief likely to arise from the lax indulgence of this discretion : \\\" The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a Court of Chancery will almost at any time relieve him from the penalty of his gross negligence, is very injurious to public morals.\\\"\\nAnd it has even been held that the complainant must not only tender the money, but must follow it up by bringing it into court. Doyle et al. v. Teas et als. 5 Ill. 202, 265, 267.\\nWas the time ever extended, and if so how long? We have on this point only the conflicting evidence of the answer and the two depositions ; and considering the weight to which the answer is entitled, and that the burden of proof is on the complainants, we cannot hold that there was any extension but for a definite time.\\nThe respondent in his answer filed in May, 1872, swears that he was willing and ready to execute the deed. For some reason the depositions were not taken until 1875, and the respondent in his deposition swears that he was willing to give the deed not only up to the filing of the bill in May, 1872, but up to the time he sold the lot to another person in the autumn of 1874.\\nAnd the complainants do not offer any evidence, or even claim that they have ever tendered or demanded a deed; or tendered the money or offered to pay it.\\nBill dismissed, but without costs.\"}"

ri/2063149.json

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+"{\"id\": \"2063149\", \"name\": \"Hulda Sherman, Admx., vs. Samuel J. Howes, Admr., d. b. n. c. t. a.\", \"name_abbreviation\": \"Sherman v. Howes\", \"decision_date\": \"1916-04-12\", \"docket_number\": \"\", \"first_page\": \"26\", \"last_page\": \"31\", \"citations\": \"39 R.I. 26\", \"volume\": \"39\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T21:20:25.764138+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.\", \"parties\": \"Hulda Sherman, Admx., vs. Samuel J. Howes, Admr., d. b. n. c. t. a.\", \"head_matter\": \"Hulda Sherman, Admx., vs. Samuel J. Howes, Admr., d. b. n. c. t. a.\\nAPRIL 12, 1916.\\nPresent: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.\\n(I) Life Insurance. Equitable Interests.\\nA policy of insurance was payable in the event of the death of insured during the life of either his wife or his son to the company as trustee, to make certain payments to the wife and son and the survivor of them, the balance after the death of both beneficiaries to be paid to the executors, administrators or assigns of insured.\\nInsured thereafter executed a will by which he gave to his wife the residue of his estate. Insured deceased, leaving his wife and son surviving, and the company thereafter made nine payments under the trust agreement, prior to the death of both the son and widow of insured.\\nHeld, that insured reserved an equitable reversionary interest in the proceeds of the policy as part of his estate, subject to the possibility of its being exhausted if his wife or child lived long enough and while contingent in character it was capable of passing and did pass to the widow, i. e., the equitable right, but not the present possession and enjoyment, and therefore the administrator of the widow was entitled to the proceeds.\\nProbate Appeal.\\nHeard on exceptions of appellee and overruled.\", \"word_count\": \"1739\", \"char_count\": \"9801\", \"text\": \"Baker, J.\\nThis is an appeal by Huida Sherman as administratrix upon the estate of Emma F. Sherman, deceased, from the decree of the probate court of the town of Cumberland, entered April 2, 1914, whereby said court ordered and decreed that the statement filed by Samuel J. Howes, administrator d. b. n. c. t. a. on the estate of Amos .Sherman, in the office of the clerk of said probate court, Betting out the names of the legatees, the amounts to be paid, and the property to be turned over to them respectively, or to be held by himself as trustee, be approved as filed.\\nThis action of the court was had under Sections 13 and 14 of Chapter 318 of the General Laws of 1909.\\nThe important part of the statement was as follows:\\n\\\" Names of legatees in will of Amos Sherman Roger Sherman Emma F. Sherman\\nAmount due and property to be turned over to them none none.\\\"\\nIn Sherman v. Howes, 38 R. I. 176, decided June 24, 1915, which was a case between the same parties, this court held that the money in said administrator's hands as portion of the balance of the proceeds of the policy of life insurance numbered 316183 paid to him by the New York Life Insurance Company on March 29, 1911, was part of the assets of the estate of Amos Sherman. As already shown the decree of the probate court appealed from in the present case approved the statement that no part of these assets belonged to the administratrix on the estate of Emma F. Sherman. Hence her appeal, which was heard before Mr. Justice Barrows, sitting without a jury, on August 20, 1915, who at the close of the hearing caused to be entered a decree sustaining her appeal, reversing the decree of the probate court and amending said statement so as to read as follows:\\n\\\"Names of legatees Amount to be paid over\\nRoger W. Sherman deceased\\nJanuary 5,1911 nothing\\nEstate of Emma F. Sherman\\nHuida Sherman Admx. $2,885.34.\\\"\\nThe decree further recites that said last mentioned sum includes interest at the rate of four per cent, per annum upon the balance shown by the final account of said administrator from the date of the decree allowing the same (May 2, 1912), and orders said administrator to pay forthwith said sum of $2,885.34 to said Huida Sherman as administratrix as aforesaid.\\nTo this decision Mr. Howes excepted and also to certain rulings of the court excluding testimony and he has duly brought his bill of exceptions to this court. It contains five exceptions.\\nWe think the four exceptions taken to the exclusion of testimony are without merit and they are overruled. The remaining exception is to the finding that the money now held by the administrator belongs to Huida Sherman as administratrix on the estate of Emma F. Sherman.\\nAs, in substance, this court in Sherman v. Howes, supra, held said money to be part of the assets of the estate of Amos Sherman for all legal purposes, the only question now presented is whether or not said money was disposed of by the will of Amos Sherman. In other words, as to such balance of proceeds did he die testate or intestate ?\\nAlthough the facts of the case are quite fully set out in Sherman v. Howes, supra, a brief statement of them in the. present case will be convenient.\\nInsurance policy No. 316183 issued on the life of Amos Sherman for the term of fifteen years, commencing May 2, 1889, was made payable upon his death before May 2, 1904, share and share alike, to Emma F. Sherman, his wife, and Roger W. Sherman, his son, or their executors, administrators or assigns. If the insured lived through the period of fifteen years, payment in amount as specified in the policy was to be made to him or his assigns. Under date of January 6, 1898, Emma F. Sherman and Roger W. Sherman assigned to Amos Sherman said policy \\\"and all dividend, benefit and advantage to be had or derived therefrom.\\\" By Memorandum A., dated January 11, 1898, Amos Sherman amended his application of April 19, 1889, for this policy of insurance, as well as his application for one other policy, by making in the event of his death \\\"during the lifetime of either Emma F. Sherman, wife, or Roger W. Sherman, son, the proceeds of the insurance\\\" then applied for payable to the New York Life Insurance Company as trustee with instructions to invest the same and to pay therefrom annually a certain sum to his said wife and son and to the survivor of them, with the further instruction that the balance of said proceeds remaining after the death of both beneficiaries should be paid to the executors, administrators or assigns of himself, the insured. He reserved the right to revoke the appointment of trustee, but never exercised it. Memorandum B., signed by the president and secretary of said life insurance company under date of February 10, 1898, states that \\\"It is agreed that in ease of the death of Amos Sherman during the lifetime\\\" of his wife or son the proceeds of said policy \\\"are to be paid to the New York Life Insurance Company as trustee\\\" upon the trusts as stated in Memorandum A. except that there was a change in the number of annual installments to be paid over. Whether each installment to be paid under this policy by Memorandum B. is the same as provided in Memorandum A. is not entirely clear as the former referred to two policies and gave a lump sum for both.\\nOn August 22, 1899, Amos Sherman executed his last will and testament by which after making certain specific devises and legacies to his son, including the proceeds of the two other insurance policies, he provided as follows: ' Third. I give and bequeath to my wife, Emma E. Sherman, all the rest and residue of estate, personal, real, or mixed, and wherever situate, including as well any that I may acquire subsequent to the date of this will as that of which I am now possessed to her, her heirs and assigns forever.\\\" She was appointed executrix of the will. Amos Sherman died September 7, 1902, leaving his wife and son surving him. Upon his death his wife and son surrendered said policy to said insurance company for cancellation and the proceeds of the policy were held by it as trustee. Under date of October 2, 1902, the company issued a certificate of trust in accordance with the provisions of Memorandum B., and thereafter in accordance therewith made nine annual payments of $250 each. The will of Amos Sherman was duly probated and his widow qualified as executrix. She died intestate January 17, 1905, and Roger W. Sherman died January 5, 1911, testate, leaving his widow, said Huida Sherman, as his sole devisee and legatee. Under the facts and conditions as stated did Amos Sherman have such interest in the proceeds of the policy as that at his death it passed under his will to his widow ? By the assignment to him from his wife and son the proceeds of the policy became part of his estate in the event of his death before May 2, 1904; if he survived that date, such amount as would then be due on the policy was payable to him by the original terms of the policy. With the consent of the company he, after the assignment, effected a new designation of beneficiaries, by maldng the proceeds payable to the insurance company as trustee charged with the payment of $250 annually therefrom to his wife and child and the survivor of them and upon the death of both with the payment of the balance then remaining, if any, to his estate. In other words, he reserved an equitable reversionary interest in the proceeds as part of his estate, subject to the possibility of its being exhausted, if his wife or child lived long enough. While contingent in character, it was, however, an interest which was capable of passing under his will and in our opinion did so pass on his death to his widow; that is, the equitable right passed, but not the present possession and enjoyment. See Bailey v. Hoppin, 12 R. I. 560, 567, 569; Loring v. Arnold, 15 R. I. 428.\\nWilliam G. Rich, Waterman & Greenlaw, for appellant.\\nJames F. Murphy, for appellee.\\nAccordingly Huida Sherman, as administratrix on the estate of Emma F. Sherman, is entitled to have the balance of said proceeds now in the hands of Samuel J. Howes, administrator as aforesaid, amounting on August 20, 1915, with interest, to $2,885.34 paid over to her by him. There was therefore no error in the decision of the Superior Court, as there is no dispute as to the correctness of the amount with which the administrator is chargeable.\\nThe exceptions of the administrator are overruled, and the case is remitted to the Superior Court for further proceedings.\"}"

ri/2406174.json

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+"{\"id\": \"2406174\", \"name\": \"Herbert M. Kimball, 2nd., Admr. vs. Anna M. McGowan\", \"name_abbreviation\": \"Kimball v. McGowan\", \"decision_date\": \"1940-11-27\", \"docket_number\": \"\", \"first_page\": \"500\", \"last_page\": \"503\", \"citations\": \"65 R.I. 500\", \"volume\": \"65\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:31:32.101104+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present : Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"parties\": \"Herbert M. Kimball, 2nd., Admr. vs. Anna M. McGowan.\", \"head_matter\": \"Herbert M. Kimball, 2nd., Admr. vs. Anna M. McGowan.\\nNOVEMBER 27, 1940.\\nPresent : Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"word_count\": \"809\", \"char_count\": \"4613\", \"text\": \"Condon, J.\\nPlaintiff, as administrator of the estate of Emma K. Bushnell, deceased, brought this action to recover the sum of $136.27, which he paid to the city of Providence for taxes assessed, on June 15, 1937, against the defendant as the recorded owner on that date of certain real estate situated at 193 Hanover street in this city. The case was tried before a justice of the superior court, sitting without a jury, and resulted in a decision for the defendant. The plaintiff duly excepted to that decision and the case is now here on that exception solely.\\nThe material facts were stipulated in the superior court and are as follows: Emma K. Bushnell conveyed the above-mentioned real estate to one Hugh Mooney, on July 11,1927, and received from him a mortgage thereof in the sum of $6000. On July 22, 1927, Mooney conveyed this real estate to one Thomas L. Wynne, who later, on June 8, 1936, conveyed it to this defendant, subject to the mortgage of Emma K. Bushnell. The defendant, however, did not assume and undertake to pay this mortgage and she never paid any interest or any part of the principal sum to the mortgagee. On June 27, 1937, she conveyed her interest to Raymond B. Allen' and wife, subject to the Bushnell mortgage.\\nThe mortgagee died on January 8, 1938. At the time of her death, the interest on the mortgage note for 1937 was in arrears. On May 20, 1938, the plaintiff foreclosed the mortgage and purchased the mortgaged real estate at the foreclosure sale for the sum of $3000 for the benefit of the mortgagee's estate. Thereafter, the plaintiff paid to the city of Providence the 1937 taxes in the amount of $136.27, which were assessed against this defendant as the recorded owner of the mortgaged real estate on June 15, 1937. He then brought this action to recover that sum from her, on the ground that the law implied that she had requested him to pay it for her benefit.\\nThe plaintiff cites the following authorities in support of his position. Republic Building Loan Assoc. v. Webb, 12 Pa. Super. Ct. 545; Fidelity Ins. & Trust Co. v. Second Phoenix, etc., 17 Pa. Super. Ct. 270; Hogg v. Longstreth, 97 Pa. 255. He also quotes several texts, including that on taxation in 27 Am. & Eng. Encyc. of Law, (2d. ed.) 749, to the effect that: \\\"When a party in interest, on default of the person primarily liable, is compelled to pay taxes to protect his own interests, he has a remedy over for the recovery of the amount so paid against the party primarily liable.\\\" The Pennsylvania cases which plaintiff cites applied this doctrine for the benefit of a mortgagee who had paid the taxes due from his mortgagor's grantee, who had not undertaken and. agreed to pay the mortgage.\\nIn Citizens Savings Bank v. Guaranty Loan Co., 62 R. I. 448, 6 A. 2d. 688, we had occasion to consider at some length the application of this doctrine to a mortgagee and its mortgagor's grantee, and this court, by a majority, came to the conclusion that a mortgagee could not, after foreclosure of its mortgage, maintain an independent action against the mortgagor to recover taxes which the mortgagee had paid to protect its security, since such payment did not create a lien or liability independent of the mortgage; and held that, a fortiori, this must also be true as to the mortgagor's grantee who held subject to the mortgage but had not undertaken and agreed to pay it. This court there observed that this appeared to be the general rule by the weight of authority; and, although recognizing the existence of authority contra, stated that those authorities which were in accord with the view of the court were supported by the better reasoning. Nothing has been presented in the instant case to lead this court to alter that view.\\nWe are of the opinion that by paying the taxes in the instant case after the foreclosure sale the plaintiff, as a purchaser in behalf of the estate of the mortgagee, stands in no better position than he would be in if he were a mortgagee who had bought the property at a foreclosure under the mortgage and sought to recover taxes paid by him before the foreclosure. We therefore hold that the decisive question at issue in this case is governed by the decision of this court in Citizens Savings Bank v. Guaranty Loan Co., supra.\\nCharles R. Easton, for plaintiff.\\nTaft & Beane, for defendant.\\nThe plaintiff's exception is, therefore, overruled, and the case is remitted to the superior court for the entry of judgment on the decision.\"}"

ri/2423233.json

@@ -0,0 +1 @@
+"{\"id\": \"2423233\", \"name\": \"Rupert Bradley vs. Edith Bates Brayton\", \"name_abbreviation\": \"Bradley v. Brayton\", \"decision_date\": \"1938-06-10\", \"docket_number\": \"\", \"first_page\": \"44\", \"last_page\": \"48\", \"citations\": \"61 R.I. 44\", \"volume\": \"61\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Present: Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"parties\": \"Rupert Bradley vs. Edith Bates Brayton.\", \"head_matter\": \"Rupert Bradley vs. Edith Bates Brayton.\\nJUNE 10, 1938.\\nPresent: Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"word_count\": \"1399\", \"char_count\": \"7976\", \"text\": \"Baker, J.\\nAt the trial in the superior court of this action of trespass on the case for negligence, the jury returned a verdict for the plaintiff in the sum of $1500. The defendant thereupon filed a motion for a new trial which, after hearing, was granted by the trial justice unless the plaintiff should remit within a specified time all of the verdict in excess of $500. The plaintiff filed such remittitur. The defendant then prosecuted her bill of exceptions to this court. The only exception now pressed by the defendant is to the refusal of the trial justice to grant her an unconditional new trial.\\nThe contention of the plaintiff, as set out in his declaration and supported by evidence introduced by him, in substance was that, at the defendant's request, he went on August 22, 1933, about 8:30 a. m. to certain premises owned by her but occupied by others, in order to assist in moving furniture and goods of the occupants, and that as he went up a short flight of three or four steps leading to the back door, one of the steps gave way, throwing him to the ground and causing the injuries complained of. He also contended that the defendant had notice of the dangerous and defective condition of the steps in question prior to his visit to the premises, but that she failed to warn him of such condition. The defendant, on the other hand, presented evidence tending to show that she did not request the plaintiff to go to the premises for the purpose or at the time claimed by him; that the steps in question were not defective; that the plaintiff was not at such premises at all on August 22, 1933, and that his case was without foundation in fact and was made up by the plaintiff with the assistance of the occupants of the premises.\\nThe trial justice, in deciding the defendant's motion for anew trial, used language of an equivocal nature. He stated in substance that, based on his observation of the witnesses, their credibility and the weight he would give their testi mony, he would have had no hesitancy in finding for the defendant. However, he stated that the questions presented were disputed questions of fact for the jury to determine and that he was unable to say that the jury were wrong because they did not agree with him, but that, it would be difficult to say that he approved the jury's finding as to liability. Finally, he used the following language: \\\"While the Court does no.t-agree with the, finding of the verdict of the jury on the quegtion of liability, the Court feels that it was such,--a question of fact that reasonable men might differ in their determination, and that the Court cannot say that the finding of the jury on the question of liability is clearly wrong.\\\" In so finding the trial justice did not apply the correct rule to be used by him in passing upon a motion for a new trial. It was his duty to determine whether or not, in his independent judgment, the verdict of the jury was supported by a fair preponderance of the evidence and did substantial justice-between the parties. He was not obliged to find that the verdict was clearly wrong in order to set it aside.\\nThe defendant argues that the trial justice plainly did not approve the verdict and, from the tenor of his statement, should have granted the defendant's motion for a new trial without condition, but failed to do so because of misconception as to his authority to set aside the jury's verdict. We are not able to follow the defendant's contention in this regard in its entirety. The trial justice did, as a matter of fact, permit the verdict of the jury on the issue of liability to stand, apparently on the ground that reasonable men might differ on the questions presented. We are of the opinion, however, that the trial justice has so expressed himself that his decision can not be given the weight ordinarily accorded to a decision expressly approving or disapproving a verdict.\\nSuch being the case, it becomes necessary for us to examine independently the transcript of evidence without the assistance we ordinarily receive from the findings of the trial justice on a motion for a new trial. In so examining the transcript, we apply the rule of a court of last resort; that is to say, we determine whether or not in our judgment the evidence submitted very strongly preponderates against the verdict. These matters, and the duties of a trial justice when passing upon a motion for a new- trial, were thoroughly .considered by this court in Spiegel v. Grande, 45 R. I. 437. See also Buttera v. Rhode Island Co., 110 A. 71 (R. I.); Humes v. Schaller, 39 R. I. 519; Willett v. Slocum, 47 R. I. 136, Nichols v. New England Tel. & Tel. Co., 57 R. I. 180; Raleigh v. Fitzpatrick, C. T., 60 R. I. 79, 197 A. 387. In the Buttera case the following holding was made; \\\"As the verdicts come to this court without the approval of the trial justice, the law applying to such a state of facts is that, where the evidence as to the existence of the facts which are put in issue is conflicting, and of such a character that fair-minded men might honestly differ as to the result thereof, the verdict of the jury is final and conclusive. And this is so, even though the court or another jury might come to a different conclusion upon the same evidence.\\\"\\nIn the present case we have carefully examined the evidence. The testimony of the witnesses on the main issues is sharply conflicting. There was ample evidence which, if believed, tended to support the plaintiff's contention that the steps were in bad condition and dangerous, and that the defendant had notice of that fact prior to the plaintiff's alleged fall. On the matter of being requested by the defendant to go upon the premises, the plaintiff had only his own testimony which was denied categorically by the testimony of the defendant and her son.\\nIn support of her contention that the plaintiff was not on the premises August 22, 1933, the defendant, in addition to her own evidence and that of her son, produced several witnesses who testified in substance that they were on or near said premises on that day doing work for the defendant, and that the premises were then unoccupied and without furniture. Most of these witnesses testified from memory. How ever, one, an electrician, had in a book a memorandum of working on the premises on August 22 and 23,1933. Another of these witnesses, however, testified in cross-examination that the occupants of the premises were there on the afternoon of August 21,1933, while a third gave evidence that the morning she and others went to the premises to do work the sheriff had delivered keys to the defendant.\\nCarroll & Dwyer, Edward F. J. Dwyer, for plaintiff.\\nPatrick H. Quinn, for defendant.\\nOn the other hand, the plaintiff presented as witnesses two occupants of the premises who testified that they vacated the place either on August 22 or 23,1933. One of these witnesses corroborated the plaintiff as to the latter's fall on the steps. The return of the deputy sheriff who had two executions to serve against these occupants, which executions ran in favor of the defendant in ejectment suits against them, read as follows: \\\"Kent, sc. In Warwick in said County, I have this 23rd day of August A. D. 1933, caused the within named plaintiff to have possession of the within described premises, with the privileges and appurtenances thereunto belonging.\\\"\\nAfter careful consideration, and in view of the above state of the record, we are unable to say that the evidence in this case very strongly preponderates against the verdict on the question of'the defendant's liability. The matter of damages in this case has not been seriously argued before us.\\nThe defendant's exceptions are overruled, and the case is remitted to the superior court with direction to enter judgment for the plaintiff on the verdict as reduced by the remittitur.\"}"

ri/3030129.json

@@ -0,0 +1 @@
+"{\"id\": \"3030129\", \"name\": \"Ralph T. Cullen vs. Carl R. Adler et al.\", \"name_abbreviation\": \"Cullen v. Adler\", \"decision_date\": \"1970-12-08\", \"docket_number\": \"\", \"first_page\": \"749\", \"last_page\": \"757\", \"citations\": \"107 R.I. 749\", \"volume\": \"107\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T20:44:54.499509+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Paolino, Powers and Joslin, JJ.\", \"parties\": \"Ralph T. Cullen vs. Carl R. Adler et al.\", \"head_matter\": \"271 A.2d 466.\\nRalph T. Cullen vs. Carl R. Adler et al.\\nDECEMBER 8, 1970.\\nPresent: Paolino, Powers and Joslin, JJ.\", \"word_count\": \"2376\", \"char_count\": \"14352\", \"text\": \"Powers, J.\\nThis is a petition for certiorari which seeks to review the action of the respondent town council in removing the petitioner from the office of tax assessor-building inspector. We issued the writ and in accordance with its mandate the pertinent records were duly certified to this court for our examination. It appears therefrom that petitioner was appointed to the public office in question on June 1, 1967, for a six-year term as provided by P. L. 1961, chapter 53. It was by this legislative enactment that the office of tax assessor-building inspector was created and, in addition to providing for a six-year term, the statute provided that the necessary qualifications for the office were to be established by an ordinance adopted by the town council.\\nThe record further establishes that the respondent town council consists of five menibers. On December 17, 1968, the town council adopted a resolution appointing three of its members and the town solicitor as a committee to investigate the office of tax assessor-building inspector. As a result of the investigation accordingly conducted, said committee, on February 13, 1969, recommended to the council that petitioner be removed from office. The grounds for such recommendation, broadly stated, were first that petitioner did not possess the qualifications for the office mandated by the ordinance establishing such qualifications, and secondly that petitioner was chargeable with inefficiency, neglect of duty, and misconduct in office.\\nThe committee report further recommended that petitioner be advised of these charges and afforded a public hearing thereon if desired. Having been duly notified thereof, petitioner seasonably requested a public hearing together with a bill of particulars.\\nFurther, petitioner sought and obtained a restraining order in the Superior Court enjoining the town council from removing petitioner. The basis for petitioner's recourse to the Superior Court was, in essence, that the town council lacked jurisdiction to remove petitioner for the reason that the enabling act made no provision, for removal by the town council and secondly, that in any event three members of the council having participated in the investigation and recommended removal proceedings, a majority of the town council was demonstrably prejudiced and biased. This being so, petitioner contended that he was foreclosed from obtaining a fair hearing by the town council.\\nWhen the cause came on for hearing in \\\"the Superior Court on petitioner's claim for a permanent' injunction, the Superior Court justice before whom it was heard vacated the restraining order and denied injunctive relief. In rejecting petitioner's contention that the town council lacked jurisdiction to remove petitioner for cause, the Superior Court justice correctly followed the rule enunciated in Lewis v. Porter, 78 R. I. 358, 82 A.2d 399. There, this court held that when the power to remove was not expressly stated, it nevertheless existed by necessary implication. As to petitioner's contention that he could hot be afforded a fair hearing by reason of prejudice or bias on the part of a majority of the members of the town council, the Superior Court justice- pointed out that a quorum could.-be made up of the two members who were not part of the investigating committee and one of the three who were. He bases this on the decisions of this court in Poirier v. Martineau, 86 R. I. 473, 136 A.2d 814, and Poirier v. Martineau, 87 R. I. 60, 138 A.2d 331.\\nIn the first Poirier case this court held that the normal rule of disqualification must yield to the rule of necessity where the tribunal in question was the only body vested with jurisdiction to hear the charges.\\nIn clarification and supplementation of that decision, this court in the second Poirier case directed that the member of the city council who had participated in the investigation of misconduct and who was to serve with those-members of the city council, who had not participated in the misconduct investigation in order to achieve a quorum, should be drawn by lot.\\n' Although denying injunctive relief, the Superior Court justice retained jurisdiction to further hear petitioner's prayer in the event that the town council were to hold a hearing on the assigned charges without conforming to the Poirier formula.\\nPresumably guided by direction from the Superior Court justice, three members of the town council, sitting as a quorum, held a public hearing which began March 17, 1969. Two of the three members conducting the hearing had not served on the investigating committee and the third member who had so served was chosen by lot. The hearing was conducted over a period of fourteen evenings and evidence was adduced in conn\\u00e9ction with all the charges leveled at petitioner.\\nThe bill of particulars consisted of specific answers to questions asked by petitioner in connection with the charges as stated in the written notice thereof. Both charges and answers cover a wide area but, as previously indicated, we have concluded that certain of these charges and the evidence adduced thereon, are dispositive of the cause. For this reason, we deem it necessary to set forth only the charges and evidence with which we are concerned.\\nCharge number three which has multiple implications is as follows:\\n\\\"3. That in his capacity as Tax Assessor Mr. Cullen has:\\nA. Failed or neglected to maintain adequate records of explanation of individual assessments made.\\nB. Employed arbitrary and discriminatory methods of assessment detrimental to the rights and interests of the assessed owners and the public.\\\"\\nIn reaching their decision to remove petitioner, the town council found as a fact that the oral and documentary evidence received in connection with this charge clearly established the quoted allegations as having been proven. They stated that:\\n\\\"The testimony shows that after being in office only a few months, and by his own testimony not having had any previous experience in property valuations or assessing, Mr. Cullen discarded the system that had been approved previously by the taxpayers, and was then in effect, that required detailed information on a property assessing card, as a basis for arriving at the market value of property. He said he discarded the system because in his opinion it wasn't an up-to-date system. He substituted what he termed a comparable sales system. This system if based on detail records is an acceptable system. However as evidenced by the exhibits and the testimony of Mr. Cullen he kept no detailed records on which to assess in this manner or to substantiate any assessment at a later date when objection was raised by a taxpayer.\\\"\\nFrom our examination of the in evidence records kept by petitioner and the testimony of the several witnesses relied on by the council, we are constrained to hold that the council's finding of fact as to charge number three is supported' by the record.\\nHowever, in his oral argument and brief petitioner contends that the testimony of the witnesses, on which the respondent council relied, lacks legal competency. He bases this on a number of procedural objections, which, however valid when related to a civil or criminal trial, are lacking in merit here. It is well settled that when a legislative body sits to pass on charges looking to removal of a public official, the hearing is quasi-judicial and must be conducted conformable to a sense of fair play. This concept demands that the person sought to be removed shall receive written notice of the charges preferred; to a public hearing thereon at which he shall have the right to be represented by counsel; to offer testimony in rebuttal as well as the right to subpoena pertinent records and, moreover, to be heard on charges that are substantial. Mellor v. Leidman, 100 R. I. 80, 211 A.2d 633. What is not required, however, is that the hearing shall conform to the strict rules of evidence. Zimarino v. Zoning Board of Review, 95 R. I. 383, 187 A.2d 259; Whitney v. Judge of The District Court, 271 Mass. 448, 171 N. E. 648.\\nHere petitioner received written notice of substantial charges. It is self-evident that the financial affairs of a city or town are vitally related to sound record keeping practices in the office of its tax assessor. Without them, one side of the coin depicts loss of revenue to the municipality, while the other side can portray unjust taxation as to some property owners.\\nFurther,..petitioner here was given a public hearing at which he was represented by counsel and otherwise afforded the rights mandated in Mellor v. Leidman, supra.\\nEven so, petitioner further contends that the town' council's decision to remove him is fatally defective in several other particulars. Two such contentions, although unavailing to; him, are of such a nature as to call for a discussion as to why they lack merit.\\nThe first such is that the town council's decision is so tainted by bias and prejudice on the part of the respondents as to constitute a denial of the fair and impartial hearing to which petitioner was entitled, citing Kelley v. City Council of Cranston, 61 R. I. 472, 1 A.2d 185; Hanna v. Board of Aldermen, 54 R. I. 392, 173 A. 358 and others.\\nIn the latter cited case, this court held that the removal of the chief of police by a six-member board of aldermen on charges made by three members of the board, serving as a committee on police affairs who participated in the hearing and decision to remove was a nullity. This court reached its decision because the record established that at the hearing petitioner had protested that with the three members who preferred the charges participating, petitioner could not receive a fair and impartial hearing.\\nHowever, in Hanna, unlike the case here, all three accusers participated in the hearing and only one who could have been drawn by lot was necessary to constitute a quorum as in Poirier v. Martineau, supra. Had the procedure adopted in Poirier been employed in Hanna as it was here, a different case would have been presented.\\nNevertheless, prescinding from the apparent bias and prejudice inherent in a situation where the right to disqualification yields to the rule of necessity, petitioner further argues that there is a right to show actual bias, or prejudice on the part of those hearing the removal proceedings. So arguing, he refers our attention to the language of this court in Kelley v. City Council, supra.\\nThere, this court held that the existence of bias and prejudice must be shown as a matter of fact by the. person qlaiming a disqualification on such grounds and not merely presented as a matter of the opinion of that person. In other words, it is incumbent on him alleging bias and prejudice to bring evidence thereof on the record.\\nAt the commencement of the hearing in the case at bar, petitioner's counsel sought to examine the members of the council on the question of bias or prejudice in fact. He was precluded from doing this on the ground that in the Superior Court proceedings, where all councilmen were present, petitioner had ample opportunity to examine the council members, but refrained from doing so, even though the justice of that court had retained jurisdiction for the purpose of assuring petitioner of an impartial hearing.\\nHaving been denied the right to question members of the council for actual bias and prejudice, counsel for petitioner stated that he would like to make an offer of proof. Invited to make such offer counsel stated:\\n\\\"Our offer of proof will be that as a result of the cross-examination of council, we will attempt to place on the record certain facts tending to establish bias and prejudice over a period of time.\\\"\\nWe think it of controlling significance that the offer does no.t contain statements of fact as to the course of conduct regarding which counsel indicated would be brought forth on an- examination of council members. If there were a course of conduct on the part of members of the council, which would tend to establish such bias or prejudice as would prevent a member or members from reaching a decision based solely on evidence adduced, that conduct should have been affirmatively placed in the record.\\nF. Monroe Allen, Carl B. Lisa, for petitioner.\\nJohn H. Hines, Jr., for respondents.\\nClearly, either facts tending to establish the indicated course of conduct were within the knowledge of petitioner or, if not, searching for such facts through examination of council members would be a fishing expedition.\\nThis brings us then to a consideration of petitioner's remaining contention which calls for discussion. It is that, although the hearing on the preferred charges was conducted by the three member tribunal which unanimously miade the findings of fact allegedly constituting cause for removal, all five respondents participated in the vote to remove petitioner from office. Therecord establishes that respondents did indeed follow the procedure of which petitioner \\u00ab.complains. -However, it' seems clear that firs grievance is more fanciful than real. If it be conceded.that the. votes to remove cast by the two members who did not participate in the hearing tribunal must, be treated as a nullity, petitioner takes nothing thereby. There remains the unanimous vote of the three-man tribunal which on the basis of competent evidence found petitioner guilty of such inefficiency and neglect of duty as to justify his removal.\\nThe petition for certiorari is denied and dismissed. The writ heretofore issued is quashed and the records certified to this court are ordered returned to the respondent town council with our decision endorsed thereon.\\nRoberts, C. J. and Kelleher, J., did not participate.\\nSuch an ordinance was in fact adopted but in the view we take of what we \\u00a1consider to be the dispositive issue, further reference to said ordinance is -not required.\\nIf such were indeed the case, there is nothing to establish it in the record before us. What-is'in the record certified here is a'copy of the Superior Court justice's opinion. We have referred to that only as incidental to the travel of the cause and refrained from' expressing any opinion on the jurisdictional phase of the Superior Court proceedings.\"}"

ri/3032133.json

@@ -0,0 +1 @@
+"{\"id\": \"3032133\", \"name\": \"Manuel A. Penna v. Harold V. Langlois, Warden\", \"name_abbreviation\": \"Penna v. Langlois\", \"decision_date\": \"1969-12-03\", \"docket_number\": \"M. P. No. 414\", \"first_page\": \"821\", \"last_page\": \"821\", \"citations\": \"106 R.I. 821\", \"volume\": \"106\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T17:10:19.818972+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Manuel A. Penna v. Harold V. Langlois, Warden.\", \"head_matter\": \"December 3, 1969.\\nM. P. No. 414.\\nManuel A. Penna v. Harold V. Langlois, Warden.\\nAlton W. Wiley, for plaintiff. Herbert F. DeSimone, Attorney General, for defendant.\", \"word_count\": \"43\", \"char_count\": \"259\", \"text\": \"Motion of Court to dismiss appeal for lack of prosecution in compliance with Rule 15 granted.\"}"

ri/3048074.json

@@ -0,0 +1 @@
+"{\"id\": \"3048074\", \"name\": \"James Edward McParlin v. Harold V. Langlois, Warden\", \"name_abbreviation\": \"McParlin v. LangLois\", \"decision_date\": \"1968-07-26\", \"docket_number\": \"M. P. No. 208\", \"first_page\": \"727\", \"last_page\": \"727\", \"citations\": \"104 R.I. 727\", \"volume\": \"104\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T18:21:39.561841+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Edward McParlin v. Harold V. Langlois, Warden.\", \"head_matter\": \"July 26, 1968.\\nM. P. No. 208.\\nJames Edward McParlin v. Harold V. Langlois, Warden.\\nJames Cardono, Public Defender, William F. Reilly, Special Counsel to Public Defender, for petitioner.\\nHerbert F. DeSimone, Attorney General, Donald P. Ryan, Asst. Attorney General, for respondent.\", \"word_count\": \"44\", \"char_count\": \"300\", \"text\": \"Reargument denied.\"}"

ri/3054412.json

@@ -0,0 +1 @@
+"{\"id\": \"3054412\", \"name\": \"Petition of Nelson C. Drummond and Lucille F. Drummond\", \"name_abbreviation\": \"In re Drummond\", \"decision_date\": \"1968-05-14\", \"docket_number\": \"M. P. No. 430\", \"first_page\": \"723\", \"last_page\": \"723\", \"citations\": \"104 R.I. 723\", \"volume\": \"104\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T18:21:39.561841+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Petition of Nelson C. Drummond and Lucille F. Drummond.\", \"head_matter\": \"M. P. No. 430.\\nPetition of Nelson C. Drummond and Lucille F. Drummond.\\nDean J. Lewis, for petitioners.\\nMoore, Virgadamo, Boyle & Lynch, Salvatore L. Virgadamo, for respondents.\", \"word_count\": \"76\", \"char_count\": \"470\", \"text\": \"Petition for trial pursuant to G. L. 1956, \\u00a79-21-4, as amended, granted, and judgment entered in Superior Court, Newport County, C. A. No. 8507, Nelson C. Drummond et ux. v. Havana Cafe, Inc., vacated. All papers in said case under Appeal No. 353-A remanded to Superior Court, Newport County.\"}"

ri/3058481.json

@@ -0,0 +1 @@
+"{\"id\": \"3058481\", \"name\": \"Re: Petition of Constantine J. O'Rourke\", \"name_abbreviation\": \"In re O'Rourke\", \"decision_date\": \"1968-04-10\", \"docket_number\": \"M. P. No. 400\", \"first_page\": \"772\", \"last_page\": \"772\", \"citations\": \"103 R.I. 772\", \"volume\": \"103\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T01:14:28.209723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Re: Petition of Constantine J. O\\u2019Rourke.\", \"head_matter\": \"M. P. No. 400.\\nRe: Petition of Constantine J. O\\u2019Rourke.\\nCarroll & Dwyer, John G. Carroll, for petitioner.\\nPaul J. Bordieri, for respondent.\", \"word_count\": \"26\", \"char_count\": \"167\", \"text\": \"Petition for trial denied.\"}"

ri/3063139.json

@@ -0,0 +1 @@
+"{\"id\": \"3063139\", \"name\": \"Rosbro Plastics Corporation v. Joseph Davenport, et al.\", \"name_abbreviation\": \"Rosbro Plastics Corp. v. Davenport\", \"decision_date\": \"1968-03-12\", \"docket_number\": \"M. P. No. 368\", \"first_page\": \"770\", \"last_page\": \"770\", \"citations\": \"103 R.I. 770\", \"volume\": \"103\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T01:14:28.209723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rosbro Plastics Corporation v. Joseph Davenport, et al.\", \"head_matter\": \"M. P. No. 368.\\nRosbro Plastics Corporation v. Joseph Davenport, et al.\\nAdelson & Chernick, Joseph E. Adelson, Melvin A. Chernick, for plaintiff.\\nLuden Capone, for defendants.\", \"word_count\": \"39\", \"char_count\": \"260\", \"text\": \"Motion to dismiss appeal granted pro forma. Petition for writ of certiorari granted.\"}"

ri/3115424.json

@@ -0,0 +1 @@
+"{\"id\": \"3115424\", \"name\": \"George H. Wood v. Congdon Equipment Co. et al.\", \"name_abbreviation\": \"Wood v. Congdon Equipment Co.\", \"decision_date\": \"1976-10-28\", \"docket_number\": \"M. P. No. 76-369\", \"first_page\": \"933\", \"last_page\": \"933\", \"citations\": \"117 R.I. 933\", \"volume\": \"117\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:00:49.327419+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George H. Wood v. Congdon Equipment Co. et al.\", \"head_matter\": \"M. P. No. 76-369.\\nKeenan, Rice, Dolan, Reardon & Kiernan, Thomas C. Plunkett, for plaintiff-respondent. Pucci & Goldin, Samuel A. Olevson, for defendants-petitioners.\\nGeorge H. Wood v. Congdon Equipment Co. et al.\", \"word_count\": \"36\", \"char_count\": \"254\", \"text\": \"Petition for writ of certiorari denied.\"}"

ri/3118789.json

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+"{\"id\": \"3118789\", \"name\": \"Emma Martineau et al. v. Frank King et al.\", \"name_abbreviation\": \"Martineau v. King\", \"decision_date\": \"1976-12-31\", \"docket_number\": \"Appeal No. 76-216\", \"first_page\": \"963\", \"last_page\": \"963\", \"citations\": \"117 R.I. 963\", \"volume\": \"117\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:00:49.327419+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Emma Martineau et al. v. Frank King et al.\", \"head_matter\": \"Appeal No. 76-216.\\nAlbert B. Watt, for plaintiffs. F. Monroe Allen, for defendants.\\nEmma Martineau et al. v. Frank King et al.\", \"word_count\": \"36\", \"char_count\": \"206\", \"text\": \"Motion of plaintiff to affirm judgment below pursuant to Rule 16(g) is denied.\"}"

ri/3137581.json

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+"{\"id\": \"3137581\", \"name\": \"State vs. Juvenal J. Rezendes\", \"name_abbreviation\": \"State v. Rezendes\", \"decision_date\": \"1973-02-19\", \"docket_number\": \"\", \"first_page\": \"169\", \"last_page\": \"178\", \"citations\": \"111 R.I. 169\", \"volume\": \"111\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T23:40:57.781560+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Roberts, C.J., Paolino, Powers, Joslin and Kellelier, JJ.\", \"parties\": \"State vs. Juvenal J. Rezendes.\", \"head_matter\": \"300 A.2d 472.\\nState vs. Juvenal J. Rezendes.\\nFEBRUARY 19, 1973.\\nPresent: Roberts, C.J., Paolino, Powers, Joslin and Kellelier, JJ.\", \"word_count\": \"2656\", \"char_count\": \"15430\", \"text\": \"Roberts, C. J.\\nThis is an indictment charging the defendant with possession of a burglary tool, to wit, a tire iron. The case was tried to a justice of the Superior Court sitting with a jury which returned a verdict of guilty as charged in the indictment. The defendant's motion for a new trial was subsequently denied by the Superior Court, and he is now in this court prosecuting a bill of exceptions.\\nIt appears from uncontradicted testimony that at approximately 9:20 on the evening of July 21, 1969, the Providence Police Department received a call to the effect that somebody was \\\"breaking in\\\" a market located at the corner of Cranston and Superior Streets. Patrolman Mark Donley, one of the arresting officers, testified that thereupon he and his partner, Patrolman Thomas E. Keune, proceeded to the location of the market. Donley was operating an unmarked police car that he drove into a parking area at the rear of the store. He further testified that as they turned into the parking lot, the lights of the police car were on high beam and that a bright light was suspended above the rear door of the store. At this time he observed defendant and a juvenile standing close to the back door of the market. As the car entered the lot, he observed defendant drop a tire iron as he and the juvenile turned to run. They were taken into custody after a short pursuit.\\nDonley further testified that, after capturing defendant, he placed him in the rear seat of the police car and then retrieved the tire iron from where it had been thrown by defendant, which was about 6 to 10 feet from the rear door of the store. The testimony of Patrolman Keune corroborated the testimony of Patrolman Donley, particularly in the fact that defendant, when first observed, was standing close to the rear door of the market under the overhead light and that, upon seeing the car coming into the parking lot, he threw the tire iron to the ground as he started to run.\\nWhile under direct examination Frank R. Andreozzi, the proprietor of the market and the parking lot, was queried concerning the physical characteristics of the parking area immediately behind the store. He answered: \\\"Where the back door is it's about fifteen feet in, because in here there is a walk-in freezer on the corner of the store so the door has to be at least fifteen feet in from the corner. Here there is plenty of room to see the back of the door from here. There is nothing obstructing the view. There was one car in the parking lot, and it was here. I have these spaces rented also, but we try to keep as much of this clear as possible because we had quite a bit of trouble in the neighborhood.\\\"\\nThe defendant moved immediately to strike that answer, which motion was denied. The court said it would let the answer stand because \\\"[i]t doesn't pertain to this defendant. That testimony has no bearing with respect to this particular defendant. I'll let it stand because it's part of the complete answer. Your exception is noted.\\\" In this court defendant contends that it was error to deny the motion to strike the testimony referring to trouble in the neighborhood, first, as irrelevant and, second, as being so prejudicial that it denied defendant his right to a fair and impartial trial.\\nThe admission of testimony objected to as immaterial or irrelevant rests in the sound discretion of the trial justice. State v. Glass, 107 R. I. 86, 265 A.2d 324 (1970). In the first place, the motion to strike made no reference to the particular part of the testimony to which it was directed. It is only in this court that defendant directs attention to the phrase \\\"trouble in the neighborhood\\\" and contends that it was without relevance or materiality on the issue of defendant's possession of burglary tools, the offense for which he was indicted. Ordinarily such a failure to specify the ground upon which the motion is based would cause us to overrule the exception. We assume, however, from the tenor of the language used by the trial justice in denying the motion, that he understood that it referred to the phrase \\\"trouble in the neighborhood.\\\" Therefore, we will consider the question further.\\nObviously, the testimony sought and adduced by the question would tend to sustain the testimony of the police witnesses identifying defendant as the man they observed discarding the tire iron in the parking area behind the store. That this is entirely relevant on the issue of defendant's guilt of the possession of burglary tools is clear. However, the witness's use of the phrase \\\"trouble in the neighborhood\\\" may imply that defendant had participated in other criminal conduct in the neighborhood. We must question whether retention in evidence of this phrase diverted the jury's attention from the issue of defendant's guilt of the offense with which he was charged.\\nIn State v. Reardon, 101 R. I. 18, 219 A.2d 767 (1966), we noted that vexing problems frequently arise from the question of whether the court exercised its sound judicial discretion in retaining evidence in the record that had been objected to on the grounds of its lack of relevance and materiality. The problem raised, of course, was whether such evidence would be sufficient to so prejudice jurors against the defendant that they could not give him a fair and impartial trial. In Reardon we said that any relevant testimony not barred by some specific rule of evidence should be given to the jury for its consideration unless it is clear that the probative force thereof is outweighed by its tendency to divert the jury from' a fair consideration of the guilt of the defendant with respect to the offense with which he is charged. Id. at 25, 219 A.2d at 772.\\nIn the instant case, we are not persuaded that the reference to \\\"trouble in the neighborhood\\\" generated prejudice to defendant sufficient to outweigh the probative force of the testimony identifying defendant as the man who discarded the tire iron behind the store. That identification of defendant by the police witnesses constituted an essen tial link in the proof of his guilt of the offense charged. However, the credibility of the police witnesses' testimony as to the identity of defendant depends largely on the store owner's testimony concerning existing characteristics and conditions of the parking area. Those conditions obviously affect the ability of the police to make the observations necessary for identification. It is our conclusion, then, that the police testimony identifying defendant had substantial probative value, and we cannot agree that the retention in evidence of the reference to \\\"trouble in the neighborhood\\\" was so prejudicial that it outweighed the probative value of the testimony of the store owner. In the circumstances, we are unable to conclude that the denial of defendant's motion to strike constituted an abuse of discretion on the part of the trial justice.\\nThe defendant contends also that it was error to deny his motion for a mistrial. After both sides had rested, defense counsel and the prosecutor summed up for the jury. At that point, the motion to declare a mistrial was made by defendant. He argued, and the record discloses, that the prosecutor in his summation to the jury had said that the defendant was unaware \\\" that these policemen in this car were responding to a complaint, that's why they were there.\\\"\\nAs we understand defendant, he is now urging that by using the word \\\"complaint\\\" in his summation to the jury, the jurors were misled into believing that defendant was apprehended while engaged in breaking and entering into the market. This, he contends, so confused the jury as to the real issue before it that defendant was deprived of a fair and impartial trial. Obviously, he is contending that the word \\\"complaint\\\" in this context was inherently prejudicial. With this we cannot agree. To buttress his position, defendant referred to the testimony given by Patrolman Donley at the opening of the trial. The patrolman had been asked whether, before he went to the market, he had received any kind of order from a superior. Patrolman Donley testified: \\\"Approximately 9:20 p.m. we received a call. Someone breaking in Gemma's Market.\\\"\\nThe defendant clearly is asking us to accept the theory that the cumulative effect of the testimony of the patrolman and the statement of the prosecutor was to generate a confusion in the minds of the jury as to the real issue on trial. By directing its attention to the offense of breaking and entering, an offense with which defendant is not charged in the indictment, the prosecutor misled the jury. This argument, in our opinion, fails to recognize the significance of the fact that immediately after Patrolman Donley testified using the word \\\"breaking,\\\" the court ordered the answer stricken and instructed the jury to disregard the reference by the patrolman to a break. There is nothing in the record that persuades us that the jury did not follow the instruction so given it by the court.\\nThis argument concerning the cumulative effect of the testimony and the summation also overlooks the fact that the court, in denying the motion to declare a mistrial, assured defendant that in his charge he would clarify the situation by informing the jury that there was no evidence in the case that there had been a break in the market on the night in question. This he did and further charged that the question of a break was not in issue. We cannot say that this instruction did not in and of itself cure any prejudice that might have developed from the use of the words \\\"breaking\\\" and \\\"complaint\\\" in the evidence. The court did not err in denying the motion to declare a mistrial, and this exception is overruled.\\nFinally, defendant argues that he was substantially prejudiced by that portion of the charge relating to a defendant's right to refrain from testifying in his own behalf. The rule is that a jury may draw no inferences of guilt from the fact that defendant did not take the stand to testify in his own behalf. A portion of the charge to which defendant refers was to the effect that no one, including a defendant, \\\" is obliged to incriminate himself and take the stand. This defendant is not obliged to prove his innocence. He doesn't have to present witnesses to prove his innocence. He can do legally and lawfully and constitutionally what he has chosen to do in this case and that is to remain silent. The fact that he has not taken the stand or introduced any evidence in his own behalf is not to be taken by any of you as any inference that he may be guilty. He has elected to utilize a constitutional guarantee, and he is not to be faulted for that reason.\\\"\\nThe defendant's contention of error is that the reference in this portion of the charge to self-incrimination necessarily led the jury to assume that the court was indicating its belief in the guilt of defendant to his resultant prejudice. In our opinion, the contention is valid only if it can be established that the jury was misled and confused by the reference to self-incrimination. We determine whether the charge was sufficiently clear and understandable on the basis not of how we would construe the instruction in question, but rather of how we believe it would be interpreted by a jury comprised of ordinary intelligent lay persons listening to it at the close of the trial. Anter v. Ambeault, 104 R. I. 496, 245 A.2d 137 (1968); D'Arezzo v. John Hancock Mutual Life Ins. Co., 102 R. I. 56, 228 A.2d 114 (1967). Would it follow, then, that, in view of the reference to self-in crimination, these jurors would necessarily assume that the trial justice was indicating his opinion that defendant was guilty?\\nWe think not. If we were to concede that the reference to self-incrimination could be misleading and confusing standing alone, we do not think that it is thus when read in the context of the charge as given. Clearly, the instruc tion points out that a defendant is obliged neither to prove his innocence nor to present witnesses to prove his innocence, and it necessarily implies that the burden of proof is on the state and that the presumption of innocence remains with him. It is our opinion that in the circumstances we cannot say that the jury was misled as defendant contends.\\nHowever, it is to be noted that the trial justice, upon exception being taken to the charge as given, immediately took steps to correct any such misunderstanding on the part of the jury and gave further instructions. The precise language of the curative instruction was: \\\"The Constitution says that no one charged with a crime has to incriminate himself. He doesn't have to take the stand, and no inference can be drawn from that. In other words, you can't say to yourself, well anybody who doesn't take the stand must be guilty. You can't do that. If you do it, you're not rendering a fair and impartial verdict.\\\" We are of the opinion that the instruction as given in the charge and in the curative instruction did not confuse and mislead the jury. We, therefore, find this exception to be without merit, and it is overruled.\\nWe turn to defendant's exception to the denial of his motion for a new trial. The record discloses compliance by the trial justice with the obligation, imposed upon him by a motion for new trial, of considering all of the evidence in an exercise of his own independent judgment, and passing upon the credibility and the weight to be given thereto. The trial justice having done this, we will not disturb his decision on the motion unless defendant sustains the burden of showing that he was clearly wrong in that he overlooked or misconceived material evidence on a controlling issue. State v. Ramsdell, 109 R. I. 320, 331, 285 A.2d 399, 406 (1971); State v. Mozzarella, 103 R. I. 253, 258, 236 A.2d 446, 449 (1967).\\nRichard J. Israel, Attorney General, Donald P. Ryan, Assistant Attorney General, for plaintiff.\\nWilliam F. Reilly, Public Defender, Paul Kelley, Assistant Public Defender, for defendant.\\nThere is little doubt that the jury accepted as true the testimony of the police witnesses that the defendant was behind the store holding a tire iron in his hand which, as they approached, he discarded and fled. The trial justice clearly approved of the finding of the jury on the basis of this evidence. The defendant argues that the record contained neither credible evidence establishing that he was in possession of the tire iron nor credible evidence that a break had been attempted but aborted by the arrival of the police. To a substantial degree the arguments raised in this court by the defendant in challenging the court's denial of his motion for a new trial would have been more properly addressed to the jury and the trial justice than to this court. See State v. McCartin, 106 R. I. 674, 262 A.2d 826 (1970). It is our conclusion, then, that the defendant has failed to establish that the trial justice was clearly wrong in passing on the motion, and, therefore, we find that no error inhered in his denial of the motion.\\nAll of the defendant's exceptions are overruled, and the case is remitted to the Superior Court for further proceedings.\\nMr. Justice Powers participated in the decision but retired prior to its announcement. Mr. Justice Doris did not participate.\"}"

ri/3141862.json

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+"{\"id\": \"3141862\", \"name\": \"Anthony J. Bottiglio v. State\", \"name_abbreviation\": \"Bottiglio v. State\", \"decision_date\": \"1973-10-09\", \"docket_number\": \"M. P. No. 73-208\", \"first_page\": \"917\", \"last_page\": \"917\", \"citations\": \"112 R.I. 917\", \"volume\": \"112\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T21:35:31.121356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony J. Bottiglio v. State.\", \"head_matter\": \"M. P. No. 73-208.\\nAnthony J. Bottiglio v. State.\\nAnthony J. Bottiglio, petitioner, pro se. Richard J. Israel, Attorney General, Donald P. Ryan, Asst. Attorney General, for respondent.\", \"word_count\": \"51\", \"char_count\": \"316\", \"text\": \"Petition for writ of mandamus denied without prejudice to right of petitioner to renew same within 30 days from date of this order.\"}"

ri/3145710.json

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+"{\"id\": \"3145710\", \"name\": \"Darleen T. Johnson vs. Milton G. Johnson; Howard Martin Johnson, Incorporated et al. vs. Milton G. Johnson\", \"name_abbreviation\": \"Johnson v. Johnson\", \"decision_date\": \"1973-02-23\", \"docket_number\": \"\", \"first_page\": \"183\", \"last_page\": \"191\", \"citations\": \"111 R.I. 183\", \"volume\": \"111\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T23:40:57.781560+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Roberts. C. J., Paolino, Powers, Joslin and Kelleher, JJ.\", \"parties\": \"Darleen T. Johnson vs. Milton G. Johnson. Howard Martin Johnson, Incorporated et al. vs. Milton G. Johnson.\", \"head_matter\": \"300 A.2d 642.\\nDarleen T. Johnson vs. Milton G. Johnson. Howard Martin Johnson, Incorporated et al. vs. Milton G. Johnson.\\nFEBRUARY 23, 1973.\\nPresent: Roberts. C. J., Paolino, Powers, Joslin and Kelleher, JJ.\", \"word_count\": \"2794\", \"char_count\": \"16750\", \"text\": \"Roberts, C. J.\\nThe matter, before us is an appeal from the denial by a justice of the Superior Court of a motion to charge the garnishees. The appellant is Darleen T. Johnson, the plaintiff in Darleen T. Johnson v. Milton G. Johnson, C. A. No. 70-1163, hereinafter referred to as Darleen's claim. Also involved is the case of Howard Martin Johnson, Incorporated, and Howard M. Johnson v. Milton G. Johnson, C. A. No. 70-2590, hereinafter referred to as Howard's claim.\\nMilton G. Johnson, defendant in the cases referred to above, was himself plaintiff in an action pending in the Superior Court for Kent County, that is, C. A. No. 67-251, entitled Milton G. Johnson v. Leonard T. Maynard, Jr. et al., which will hereinafter be referred to as Milton's claim. This latter action had been brought by Milton in an effort to recover from the defendants, hereinafter collectively referred to as the garnishees, moneys which he claimed were due him for legal services already rendered. As of March 5, 1970, Milton's claim had been referred by a Superior Court justice to special masters for a determination specifically of what amount was due Milton as legal fees.\\nThe motion which is the subject matter of this appeal was heard by the Superior Court on March 11, 1971, and on April 30, 1971, the trial justice rendered a decision, wherein he said: \\\"Therefore in the case of Darleen, which is 70-1163, the motion to charge the garnishees is denied and in the Howard case, which is 70-2590, the garnishees are charged to the full extent of the fixed sum, to wit, $10,-625.57.\\\" The record does not disclose that any motion to charge the garnishees was made in the Howard claim, and it is from the judgment entered in denying her motion to charge the garnishees in Darleen's claim, and, instead, charging the garnishees in Howard's claim that Darleen is pressing her appeal to this court.\\nWhile Milton's claim was under consideration by the masters, Darleen on April 23, 1970, caused the garnishees to be served with writs of attachment. The affidavits of the garnishees in response to the writs stated, in part, that at the time of the service of the writs they possessed none of Milton's personal estate except what amount might be proved due him on the basis of his claim for legal fees.\\nOn September 14, 1970, the masters having filed their report, judgment was entered in the Superior Court, County of Kent, for Milton in Milton's claim in the sum of $10,625.57 plus interest and costs. On that same day Darleen again caused writs of subsequent attachment to be served on the garnishees. The sheriff's returns stated that the service of the writs of subsequent attachment was made on the garnishees at 4:48, 4:49, and 4:50 p.m., respectively, on September 14, 1970. On that same day Howard .had caused writs of attachment to be served on the garnishees in Howard's claim. The sheriff's return on those writs stated that service was made on the garnishees at 4:45, 4:46, and 4:47 p.m., respectively, on September 14, 1970. The affidavits filed by the garnishees in response to the writs of attachment of both Darleen and Howard were similar to the affidavits filed by them in response to the writs of attachment of Darleen on April 23, 1970.\\nApproximately one week later, on September 22, 1970, in the matter of Milton's claim, a supersedeas judgment was entered for Milton for $10,625.57 plus interest from the date of entry and costs. Thereafter, on September 23, 1970, writs of subsequent attachment were caused to be served on the garnishees by Howard in Howard's claim, and in response thereto the garnishees filed affidavits similar in form and content to those previously filed in that action.\\nThereafter, on February 25, 1971, the Superior Court entered summary judgment for appellant in Darleen's claim in the amount of $20,959.30 with interest and costs. On the following day appellant moved to charge the garnishees in Darleen's claim. Subsequently, on April 2, 1971, judgment was entered in Howard's claim for the plaintiffs therein. On March 11, 1971, the motion of appellant to charge the garnishees in Darleen's claim was argued before the Su perior Court. On April 30, 1971, the trial justice denied the appellant's motion to charge the garnishees in Darleen's claim and, instead, charged the garnishees in Howard's claim in the amount of $10,625.57. In his decision the trial justice expressly found that the only effective attachments were the subsequent attachments in Howard's claim made on September 23, 1970, the day after the supersedeas judgment in Milton's claim was entered.\\nThe question is whether Darleen's attachments of April 23, 1970, constituted a valid garnishment of Milton's claim. If it were, it would be dispositive, as it would be error to have denied her motion to charge the garnishees. Under the controlling statute, the garnishment that is first in time has priority. General Laws 1956 (1969 Reenactment) \\u00a79-26-30. The trial justice gave no reason whatsoever in support of his conclusion that Darleen's garnishment on April 23, 1970, was invalid. It may be that he relied on the general rule that an unliquidated claim is not subject to garnishment. The appellant relies principally on McKendall v. Patullo, 52 R. I. 258, 160 A. 202 (1932), as providing an exception to the general rule stated above.\\nIn McKendall, the defendant, a builder, contracted with the garnishee to build two houses. By April of 1927, the garnishee took possession of the houses, but final payment had not been made. On September 8, 1927, McKendall, a materialman of the defendant, commenced his action by writ of attachment on the money owed on the contract. On November 3, another materialman, Burrows & Kenyon, Inc., also commenced suit with garnishment process. The garnishee's affidavit in both actions set forth the contract and certain claims against the defendant for recoupment for defective work and delay. She also requested to be made a party so that the court could determine what, if anything, she owed the defendant. The Superior Court found that the garnishee owed the defendant $2,416.35. Thereafter,\\nBurrows & Kenyon, Inc., again served the garnishee. Both materialmen then sought to charge the garnishee. This court ruled McKendall's garnishment first in time and valid. After first stating the general rule that unliquidated claims are not subject to garnishment, the court proceeded to outline its reasons for drawing an exception to that rule: \\\"The purpose of the garnishment statute is to render liable for the payment of debts, property that cannot be reached by the direct process of attachment. We see no valid reason why this purpose should be defeated because the amount due the principal defendant is made uncertain by a claim to a part of the fund by the garnishee. While she cannot be immediately charged, the security for the debt is maintained as contemplated by the statute until by appropriate proceedings the amount for which she is chargeable has been determined.\\\" Id. at 263, 160 A. at 204.\\nThe court's opinion appears to be based on the fact that there was an admitted obligation owing from the garnishee to the contractor. The garnishee had taken possession of the houses and was only contesting the amount due the contractor. The high likelihood that it would be determined that the garnishee would be liable to pay something to the defendants supported the validity of the garnishment even though the exact amount was indeterminate.\\nA number of other cases have allowed garnishment or attachment of an unliquidated claim. The same general\\nreasoning runs throughout these cases. Garnishment is allowed on an unliquidated claim where there is a certainty as to liability but a contingency as to amount. Where an obligation to pay exists, even though the amount of that obligation is undetermined, garnishment will lie where the amount is capable of definite ascertainment by the contract, or by the facts then known, or by testimony to be taken. The logic of the cases which permit garnishment where an obligation to pay pursuant to a contract exists even though the amount due is uncertain is that the garnishee holds something of the personal estate of the defendant-debtor.\\nIn opposition to this line of argument, appellee has cited a number of cases supporting the proposition that unliqui dated damages provide an insufficient basis for attachment. However, most of his cases are of a different posture than this one. In those cases the suit was instituted by writs of attachment; the plaintiffs' claims were for unliquidated amounts; and the courts held the attachments improper. Attachment is a drastic remedy which ties up an asset of a defendant by taking property prior to judgment. In the cited cases, the principal claim was unliquidated, but a fixed asset was attached. In the present case, it was merely the claim garnished which was unliquidated. No hardship was imposed on Milton by the garnishment, for he was not deprived of the use of any asset, inasmuch as he had no right to any money until judgment. Thus, appellee's authorities are not applicable to the circumstances of this case.\\nWe must now turn to the claim Milton G. Johnson had against Leonard T. Maynard, Jr. et al. The defendants had employed Johnson to resolve a problem arising under the will of Henry Warner Budlong. Budlong devised to the mother of Hope Maynard and Alice I. Hohler a life estate in 25 acres of land in Warwick and the remainder to the State of Rhode Island for a public park. The establishment of a public park on the property would have dislodged the people living there and deprived the defendants of income-producing property. Johnson proposed a plan which was adopted by the state, by which the state disclaimed the gift under Budlong's will and the defendants made an alternative gift of 25 acres to the state. From the pretrial memoranda, it is agreed that Milton G. Johnson performed legal services for the defendants, and that they accepted the plan he proposed and participated in the ultimate solution. In dispute, however, was the amount those services were worth. No written contract between Milton and the defendants was made. Milton had received $7,500. In his bill of particulars, Milton claimed about $4,000 out-of-pocket expenses and a total fee of $42,000. Deducting the $7,500 he had already received, he sought approximately $38,500. The defendants disputed the values Milton put on the land, but in their pretrial memo they indicated that after they had paid the $7,500, they felt that the balance due would be approximately $2,500. The trial justice then appointed special masters to determine what amount, if any, was due Milton.\\nWe must determine whether Milton's claim fits the McKendall exception to the general rule that an unliquidated claim cannot be garnished. Milton's claim is similar to McKendall in that it is undisputed that he rendered services to the defendants, and that the defendants accepted the fruits of those services. It is dissimilar in that Milton's services were not rendered pursuant to any written contract. Moreover, in McKendall, the garnishee was making a claim for recoupment and delay; thus, in reality, she was only making a claim to a part of the fund which she owed the defendant under the contract. Here, at issue was what was the value of the services performed by Milton, for there was no contract price. It might be argued that this difference is sufficient to distinguish the cases. However, we feel the difference is simply a product of the different services provided. When one hires a contractor to build a house, a price is normally established prior to commencement of construction. When one hires a lawyer to represent him in a certain matter, a fee may not be set prior to beginning work if the extent of the work to be done is not known at that time.\\nThe crucial issue in McKendall was whether it was reasonably certain that she [the garnishee] had in her hands personal estate belonging to the defendant.\\\" McKendall v. Patullo, supra at 263, 160 A. at 204. Applying that test to the factual context at the time of garnishment, we must conclude that it was sufficiently certain that something was owing Milton and thus his claim was subject to garnishment. The court had appointed masters; the defendants had conceded that Milton performed certain services for them; and they indicated in their memo that they had felt those services were worth $10,000. Since they had only paid Milton $7,500, it was likely that the masters would find that at least $2,500 would be due him. Since the obligation to pay existed, and only the amount was uncertain, Milton's claim seemed analogous to that in McKendall. Hence, Darleen's garnishment was valid, and it was improper for the trial justice to deny her motion to charge the garnishees.\\nHiggins, Cavanagh & Cooney, Albert D. Saunders, Jr., for appellant.\\nAram A. Arabian, for appellees.\\nNeither party to this appeal has raised the relevance of the United States Supreme Court's opinion in Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Milton had notice of Darleen's motion to charge the garnishees, and he made an appearance at the hearing on the motion. However, he is not a party to this appeal. Therefore, we have not considered the constitutional validity of this prejudgment garnishment on the grounds recognized in Sniadach.\\nThe appeal of the appellant, Darleen, is sustained, the judgment appealed from is reversed, and the cause is remanded to the Superior Court for further proceedings.\\nMr. Justice Powers participated in the decision but retired before its publication. Mr. Justice Doris did not participate.\\nSome of these are: Meacham v. Meacham, 262 Cal.App.2d 248. 68 Cal.Rptr. 746 (Ct. of App. 1968) (Rights under a royalty contract were subject to garnishment.); Brunskill v. Stutman, 186 Cal.App.2d 97, 8 Cal.Rptr. 910 (Ct. of App. 1960) (Citing McKendall v. Patullo, 52 R.I. 258, 160 A. 202 (1932), the court allowed garnishment of retainage on a contract to repair a naval vessel.); Van Orden v. Anderson, 122 Cal.App. 132, 9 P.2d 572 (Ct. of App. 1932) (Garnishment was permitted of the amount due the beneficiary of a trust where the purposes of the trust had been accomplished even though the amount due had not yet been determined.); Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 141 A. 884 (1928); Finch v. Great American Ins. Co., 101 Conn. 332, 125 A. 628 (1924); Knox v. Protection Ins. Co., 9 Conn. 430 (1833) (These three Connecticut cases allowed garnishment of unadjusted insurance claims.); Ransom v. Bidwell, 89 Conn. 137, 93 A. 134 (1915) (Final payment under a construction contract became subject to garnishment when the contract was substantially complete even though the amount owed was to be determined by arbitration. This case was relied on and discussed at length by this court in McKendall v. Patullo, supra.); Hussey v. Titcomb, 127 Me. 423, 144 A. 218 (1929); Cutter v. Perkins, 47 Me. 557 (1859) (Both Maine cases permitted attachment of what an executor held for the residuary legatee of a will even though it might ultimately be proven that nothing was due the legatee.); Grise v. White, 351 Mass. 427, 221 N.E.2d 874 (1966) (Court allowed garnishment of the amount owed an insurance company on a judgment even though the insurance company had a right of set-ofi against that judgment.); Talbert v. Solventol Chemical Products, Inc., 304 Mich. 557, 8 N.W.2d 637 (1943) (Garnishment of commission due under a contract was allowed.); John W. McGrath Corp. v. Vera Cruz Cia. Naviera, S.A., 256 So.2d 505 (Miss. 1971) (Judgment on the issue of liability in favor of a debtor against the garnishee became subject to garnishment prior io any determination of damages.); American National Ins. Co. v. United States Fidelity & Guaranty Co., 215 So.2d 245 (Miss. 1968) (The proceeds of an employee's fidelity bond were subject to garnishment even though the amount due had not yet been determined.); Petri v. Sheriff, 87 Nev. 549, 491 P.2d 43 (1971) (A certificate of deposit voluntarily placed with the county clerk by a debtor being sued was subject to garnishment.).\\nThe following facts about Milton's claim were obtained from the record in Kent County, C. A. No. 67-251 (Milton G. Johnson v. Leonard T. Maynard, Jr.; Hope Maynard; and Alice I. Hohler). This record was transferred from the office of the Clerk of the Kent County Superior Court upon the informal request of this court.\"}"

ri/3149500.json

@@ -0,0 +1 @@
+"{\"id\": \"3149500\", \"name\": \"Chernov Enterprises, Inc. vs. Deeb G. Sarkas, Liquor Control Administrator\", \"name_abbreviation\": \"Chernov Enterprises, Inc. v. Sarkas\", \"decision_date\": \"1971-12-03\", \"docket_number\": \"\", \"first_page\": \"283\", \"last_page\": \"289\", \"citations\": \"109 R.I. 283\", \"volume\": \"109\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T17:29:00.850269+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Roberts, C. J., Paolino, Powers, Joslin and Kelleher, JJ.\", \"parties\": \"Chernov Enterprises, Inc. vs. Deeb G. Sarkas, Liquor Control Administrator\", \"head_matter\": \"284 A.2d 61.\\nChernov Enterprises, Inc. vs. Deeb G. Sarkas, Liquor Control Administrator\\nDECEMBER 3, 1971.\\nPresent: Roberts, C. J., Paolino, Powers, Joslin and Kelleher, JJ.\", \"word_count\": \"1598\", \"char_count\": \"9769\", \"text\": \"Joslin, J.\\nThis petition for certiorari was filed under the Administrative Procedures Act. The petitioner is Chernov Enterprises, Inc., a Rhode Island corporation and the operator of a restaurant and nightclub known as \\\"The Warehouse.\\\" It asks us to review a Superior Court judgment affirming a decision of the State Liquor Control Administrator. The administrator, in turn, had confirmed an order in which the Bureau of Licenses of the City of Providence refused to renew the petitioner's Class B liquor retail license.\\nWithin the time provided by law, petitioner applied to the bureau of licenses for a renewal of its Class B liquor license. Due notice of its application was given, and while no remonstrants appeared at the scheduled hearing to challenge the application, the bureau, acting on its own motion, ordered petitioner to appear and show cause why its application should be renewed. The show cause hearing was originally scheduled for November 28, 1969, but was postponed upon petitioner's request. It was held on December 5, and petitioner's application was denied. The bureau based its decision upon findings that (1) petitioner had violated the Sunday entertainment laws; and (2) that its president had suborned perjury by requesting two minors who had been served beer at \\\"The Warehouse\\\" to attest in writing and to testify that they were over 21 years of age when they were served. Following approval of that, decision first by the liquor control administrator after a de novo hearing, and then by a Superior Court justice sitting without a jury, petitioner moved for leave to file a petition for certiorari and we ordered the writ to issue. Chernov Enterprises, Inc. v. Sarkas, Liquor Control Administrator, 108 R. I. 922, 274 A.2d 906 (1971).\\nThe petitioner advances several arguments in aid of its claim for relief. The first, as we understand it, is that the bureau's failure to act on its application prior to December 1, 1969 had the twofold effect of depriving the bureau of jurisdiction to act thereon at a later date, and of auto matically renewing its license for another year. In support of that argument, petitioner points to section 14(b) of the Administrative Procedures Act. Even were we to assume that a local licensing authority like the bureau is an \\\"agency\\\" within the contemplation of section 14(b), the petitioner's argument would still be completely untenable. A cursory reading of section 14(b) makes this abundantly clear. It presupposes that there will be occasions where an \\\"agency\\\" will not act prior to the normal expiration date of a license, and it provides for that contingency by extending the life of the license, not for another year as petitioner argues, but until the last date provided by law for seeking review of the \\\"agency's\\\" post-expiration date action. Applying these principles to this case would have resulted in the life of petitioner's license being prolonged until December 15, 1969 or March 12, 1970, Having reached this conclusion, we find it unnecessary to consider the several contentions petitioner premises on the assumption that its license was renewed by operation of law for another year.\\nWe turn now to the record of the administrative proceedings in order to determine whether the Superior Court properly exercised its limited jurisdiction under the Administrative Procedures Act when it affirmed the administrator's decision. In the absence of any contention that petitioner has been denied procedural due process, our starting point is G. L. 1956, \\u00a73-7-6, as amended by P. L. 1961, chap. 164, sec. 1. It provides that an application for the renewal of a Class A, B, or C license may be rejected, but only for cause. In establishing cause as the controlling standard, the Legislature obviously did not intend to confer upon the licensing authority a limitless control or to permit the exercise of an unbridled discretion. The petitioner argues that the Legislature intended to circumscribe the power to review by restricting its scope to breaches or violations of those conditions, rules or regulations which under \\u00a73-5-21 and 3-5-23 qualify as grounds for revoking or suspending a license. We cannot agree. If that had been the Legislature's intention, it would have said so. Instead, it used only the phrase \\\"for cause.\\\" In construing other legislation where that term has been used to delineate controlling guidelines for administrative action, we have said that a cause, to justify action, must be legally sufficient, that is to say, it must be bottomed upon substantial grounds and be established by legally competent evidence. Davis v. Cousineau, 97 R. I. 85, 90, 196 A.2d 153, 156 (1963); Aniello v. Marcello, 91 R. I. 198, 207, 162 A.2d 270, 274 (1960); Narragansett Racing Association, Inc. v. Kiernan, 59 R. I. 79, 83, 194 A. 49, 51 (1937). We see no reason why the word \\\"cause\\\" as used in \\u00a73-7-6 should be construed differently.\\nOurs is now the responsibility of passing on the legal sufficiency of the cause relied upon as the basis for action in this case. In discharging that responsibility we examined the record, not to determine whether the evidence was strong or weak, direct or circumstantial, or to pass on credibility, but only to ascertain whether the action being reviewed was so arbitrary or capricious as to constitute. an abuse of discretion, whether there was any legal evidence to support it, and whether the licensing proceeding was otherwise affected by an error of law. Hobday v. O'Dowd, 94 R. I. 172, 176, 179 A.2d 319, 322 (1962); Board of License Commissioners v. O'Dowd, 94 R. I. 243, 248, 179 A.2d 579, 582 (1962).\\nIn this case, petitioner does not contend that it would have been an abuse of discretion to reject its application upon proper proof that it was convicted of violating the Sunday entertainment laws or that its president had been found guilty of suborning the perjury of the two minors who were served beer at \\\"The Warehouse.\\\" Instead, it argues that to deny renewal on the ground that its president had allegedly suborned perjury was fundamentally unfair and unjust because it subjected that officer to the possibility of twice being prosecuted for the same act, and impinged on his constitutional rights to a trial by jury and to the presumption of innocence.\\nEven were we to agree that petitioner could, in these proceedings, assert its president's constitutional safeguards, its argument could not prevail. It completely ignores the established principle that a proceeding under the laws regulating the sale of alcoholic beverages is entirely separate and distinct from a criminal prosecution for the same offense, and that the two proceedings, rather than being interdependent or mutually exclusive, are coexistent. While one is in the nature of an action in rem, the other is against a licensee personally. Both may be instituted and pursued simultaneously or otherwise. Cesaroni v. Smith, 98 R. I. 377, 202 A.2d 292 (1964); Cesaroni v. O'Dowd, 94 R. I. 66, 177 A.2d 777 (1962); Di Traglia v. Daneker, 83 R. I. 227, 115 A.2d 345 (1955).\\nSeth K. Gifford, Stephen J. Fortunato, Jr., for petitioner.\\nRichard J. Israel, Attorney General, Alexander G. Teitz, Special Asst. Attorney General, for respondent.\\nFinally, in a supplementary brief filed on the day before argument, petitioner advances several contentions. Some are of constitutional proportions. Its nonconstitutional arguments have already been considered and rejected. The constitutional issues it raises are susceptible to rejection on several grounds. One is that constitutional questions not specifically stated in the petition for certiorari cannot later be raised in argument. Brown v. Waldman, 93 R. I. 489, 494, 177 A.2d 179, 182 (1962). See Henry v. Thomas, 100 R. I. 564, 568, 217 A.2d 668, 671 (1966). That ground suffices here.\\nThe petition for certiorari is denied and dismissed, the writ heretofore issued is quashed and the papers heretofore certified to this court are ordered returned to the Superior Court with our decision endorsed thereon.\\nGeneral Laws 1956, \\u00a73-5-8 provides that \\\"every license except retailers' class F licenses and retailers' class G licenses shall expire on December 1 next after its issuance.\\\"\\nGeneral Laws 1956 (1969 Reenactment) \\u00a742-35-14tb) provides:\\n\\\"Whenever a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed By order of the reviewing court.\\\"\\nGeneral Laws 1956 (1969 Reenactment) \\u00a742-35-1 (a) defines an \\\"agency\\\" as including \\\"each state board, commission, department, or officer, other than the legislature or the courts, authorized by law to make rules or to determine contested cases .\\\"\\nIn Vitterito v. Sportsman's Lodge, 102 R. I. 72, 228 A.2d 119 (1967) it was decided that an appeal from a denial of a renewal by a local licensing authority falls within the purview of G. L. 1956, \\u00a73-7-21. That section provides, in pertinent part, that an application to review a local board's decision \\\"shall be made within ten (10) days after the making of the decision or order sought to be reviewed Appeals from the administrator's decision, which in this case was rendered on February 10, 1970, are required to be taken within 30 days. General Laws 1956 (1969 Reenactment) \\u00a742-35-15 (b).\"}"

ri/3153195.json

@@ -0,0 +1 @@
+"{\"id\": \"3153195\", \"name\": \"Gerard Joseph Salvail v. John F. Sharkey et al.\", \"name_abbreviation\": \"Salvail v. Sharkey\", \"decision_date\": \"1970-12-15\", \"docket_number\": \"M. P. No. 1035\", \"first_page\": \"901\", \"last_page\": \"901\", \"citations\": \"108 R.I. 901\", \"volume\": \"108\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:28:08.540653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gerard Joseph Salvail v. John F. Sharkey et al.\", \"head_matter\": \"December 15, 1970.\\nM. P. No. 1035.\\nAlfred Factor, Hayden C. Covington, for petitioner.\\nHerbert F. DeSimone, Attorney General, Donald P. Ryan, Asst. Attorney General, for respondents.\\nGerard Joseph Salvail v. John F. Sharkey et al.\", \"word_count\": \"44\", \"char_count\": \"286\", \"text\": \"Motion of respondents to supplement record is granted.\"}"

ri/3153272.json

@@ -0,0 +1 @@
+"{\"id\": \"3153272\", \"name\": \"Lawrence Lema, p.p.a. et al. v. Anthony Travisono et al.\", \"name_abbreviation\": \"Lema v. Travisono\", \"decision_date\": \"1971-04-01\", \"docket_number\": \"M. P. No. 1300\", \"first_page\": \"922\", \"last_page\": \"922\", \"citations\": \"108 R.I. 922\", \"volume\": \"108\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:28:08.540653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lawrence Lema, p.p.a. et al. v. Anthony Travisono et al.\", \"head_matter\": \"M. P. No. 1300.\\nBarry A. Fisher a,nd Peter W. Thoms, Rhode Island Legal Services, for petitioners.\\nRichard J. Israel, Attorney General, Donald P. Ryan, Asst. Attorney General, for respondents.\\nLawrence Lema, p.p.a. et al. v. Anthony Travisono et al.\", \"word_count\": \"48\", \"char_count\": \"292\", \"text\": \"Motion for writ' of habeas corpus denied.\"}"

ri/3158280.json

@@ -0,0 +1 @@
+"{\"id\": \"3158280\", \"name\": \"Carol Carroccio v. Onofrio Carroccio\", \"name_abbreviation\": \"Carroccio v. Carroccio\", \"decision_date\": \"1971-04-06\", \"docket_number\": \"Appeal No. 1154\", \"first_page\": \"924\", \"last_page\": \"924\", \"citations\": \"108 R.I. 924\", \"volume\": \"108\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:28:08.540653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carol Carroccio v. Onofrio Carroccio.\", \"head_matter\": \"Appeal No. 1154.\\nGelfuso and Cappalli, A. William Gelfuso, for plaintiff-appellee.\\nOnofrio Carroccio, defendant-appellant, pro se.\\nCarol Carroccio v. Onofrio Carroccio.\", \"word_count\": \"79\", \"char_count\": \"503\", \"text\": \"Matter came on to be heard on Current Argument List on April 5, 1971, having previously been continued from March 1971 Current Argument List, for failure of appellant to appear, and having again failed to appear to argue said matter, on motion of counsel for appellee said matter is dismissed pursuant to Rule 14(f) of Supreme Court.\"}"

ri/3159091.json

@@ -0,0 +1 @@
+"{\"id\": \"3159091\", \"name\": \"Arthur J. Swanlund et ux. v. Merchants Mutual Insurance Co.\", \"name_abbreviation\": \"Swanlund v. Merchants Mutual Insurance\", \"decision_date\": \"1971-07-23\", \"docket_number\": \"M. P. No. 1491\", \"first_page\": \"944\", \"last_page\": \"944\", \"citations\": \"108 R.I. 944\", \"volume\": \"108\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:28:08.540653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arthur J. Swanlund et ux. v. Merchants Mutual Insurance Co.\", \"head_matter\": \"July 23, 1971.\\nM. P. No. 1491.\\nLouis B. Cappuccio, for respondent-plaintiff.\\nMartin M. Zucker, for petitioner-defendant.\\nArthur J. Swanlund et ux. v. Merchants Mutual Insurance Co.\", \"word_count\": \"49\", \"char_count\": \"320\", \"text\": \"Motion of defendant for leave to file petition for writ of certiorari denied without prejudice to raise issues presented herein on appeal.\"}"

ri/3188628.json

@@ -0,0 +1 @@
+"{\"id\": \"3188628\", \"name\": \"Lattingtown Group Limited et al. v. Eastern Telephone and Supply Manufacturing, Inc.\", \"name_abbreviation\": \"Lattingtown Group Ltd. v. Eastern Telephone & Supply Manufacturing, Inc.\", \"decision_date\": \"1979-04-19\", \"docket_number\": \"M. P. No. 79-117\", \"first_page\": \"960\", \"last_page\": \"960\", \"citations\": \"121 R.I. 960\", \"volume\": \"121\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:27:08.306695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lattingtown Group Limited et al. v. Eastern Telephone and Supply Manufacturing, Inc.\", \"head_matter\": \"M. P. No. 79-117.\\nLattingtown Group Limited et al. v. Eastern Telephone and Supply Manufacturing, Inc.\\nCorcoran, Peck-ham, \\u00e9r Hayes, Kathleen Managhan, for petitioners.\\nMoore, Virgadamo 6- Lynch, Ltd., Neil P. Galvin, for respondent.\", \"word_count\": \"42\", \"char_count\": \"281\", \"text\": \"The petition for writ of certiorari is denied.\"}"

ri/3192111.json

@@ -0,0 +1 @@
+"{\"id\": \"3192111\", \"name\": \"Lucy Murphy et al. v. James P. O'Neill et al.\", \"name_abbreviation\": \"Murphy v. O'Neill\", \"decision_date\": \"1979-05-17\", \"docket_number\": \"M. P. No. 79-144\", \"first_page\": \"969\", \"last_page\": \"969\", \"citations\": \"121 R.I. 969\", \"volume\": \"121\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:27:08.306695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lucy Murphy et al. v. James P. O\\u2019Neill et al.\", \"head_matter\": \"M. P. No. 79-144.\\nLucy Murphy et al. v. James P. O\\u2019Neill et al.\\nNugent ir Nugent, J. Joseph Nugent, Jr., Alfred J. Gemma, for plaintiffs-respondents.\\nJames L. O\\u2019Neill, pro se, for defendants-petitioners.\", \"word_count\": \"41\", \"char_count\": \"251\", \"text\": \"The petition for writ of certiorari is denied.\"}"

ri/4447864.json

@@ -0,0 +1 @@
+"{\"id\": \"4447864\", \"name\": \"Mae P. Noyes vs. Zoning Board of Review of the City of Providence\", \"name_abbreviation\": \"Noyes v. Zoning Board of Review\", \"decision_date\": \"1962-11-27\", \"docket_number\": \"\", \"first_page\": \"201\", \"last_page\": \"207\", \"citations\": \"95 R.I. 201\", \"volume\": \"95\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T01:14:28.630085+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Condon, C. J., Roberts, Paolino, Powers and Frost, JJ.\", \"parties\": \"Mae P. Noyes vs. Zoning Board of Review of the City of Providence.\", \"head_matter\": \"Mae P. Noyes vs. Zoning Board of Review of the City of Providence.\\nNOVEMBER 27, 1962.\\nPresent: Condon, C. J., Roberts, Paolino, Powers and Frost, JJ.\", \"word_count\": \"1780\", \"char_count\": \"10841\", \"text\": \"Roberts, J.\\nThis is a petition for certiorari to review a decision of the zoning board of review of the city of Providence denying the petitioner's application for a variance. Pursuant to the writ the board have returned to this court a 'Certified copy of the record of the proceedings before them.\\nThe property, which is located on Waterman street and zoned for residential uses, is owned by petitioner and is presently the site of a large single-family residence. The application specifically seeks permission to replace the existing dwelling with a business building, the major portion of which would be the offices of an advertising agency while the remaining portion would be used by the applicant as a residence.\\nThe application was originally filed on May 31, 1961 and after a hearing thereon was denied by the board on July 11, 1961. The applicant thereafter, pursuant to a writ of certiorari authorized by G. L. 1956, \\u00a745-24-20, brought that decision to this court for review. See Noyes v. Zoning Board of Review, 94 R. I. 15, 177 A.2d 529, wherein is contained an extended discussion of the facts material to the issues in this case.\\nIn the course of that proceeding three members of the respondent board voted to grant the application but the two remaining members, hereinafter referred to as the minority, did not concur. Concerning this the decision of the board read: \\\"Therefore, in accordance- with Section 45-24-19 of the General Laws of Rhode Island of 1956, requiring the concurring vote of four members of the Board to decide in favor of an applicant on any matter within the discretion of the Board upon which it is required to pass under such Ordinance or to effect any variation in the application of such Ordinance. Resolved: That the application of Mae P. Noyes is hereby denied.\\\" Section 45-24-19 provides in part that the concurring vote of four members of the board of review shall be required to decide in favor of an applicant who seeks to vary the application of the terms of a zoning ordinance.\\nThe applicant, as the petitioner in that proceeding, had vigorously pressed certain contentions upon which she based her right to a variance on the theory that the vote of the majority of the board by clear implication constituted a finding of the unnecessary hardship contemplated by the statutory provision providing for the granting of variances. She further argued that the character of the finding expressly made by the minority was such as to necessarily imply that they too found that a literal application of the terms of the ordinance would result in the unnecessary hardship prerequisite to the granting of a variance.\\nThis court in the prior opinion made clear our doubt as to the appropriateness of considering these arguments, and particularly that concerning the minority finding, because we were unable to conclude, as did petitioner, that the finding of the minority was reasonably susceptible of an inference that she had proved the unnecessary hardship. In that circumstance this court granted the petition for certiorari, quashed the decision denying the application for the variance, and remanded the cause to the respondent board with directions that they again consider the application, revealing in their decision thereon the ultimate facts upon which it rests. Noyes v. Zoning Board of Review, supra.\\nPursuant to such mandate the respondent board on February 27, 1962 conducted a hearing at which they again considered the application. By a resolution enacted on February 28, 1962 the board denied the application, stating that in the course of their deliberations three members thereof voted to grant it for the reason that the applicant \\\"had established unnecessary property hardship,\\\" while two members voted to deny the application \\\"on the grounds that a literal enforcement of the provisions of the Ordinance would not result in unnecessary hardship .\\\" The resolution then concludes that, because of the provisions of \\u00a745-24-19 which require the concurring vote of four members of the board to decide favorably upon an application for a variance, the application is denied.\\nThe record, as extended by the board's subsequent action, mal\\u00edes clear their understanding that the cause was remanded by this court for their further consideration because of the ambiguity inhering in their prior decision concerning their finding, if any, upon he question of unnecessary hardship. The record now makes clear the nature of their finding on that issue, the board dividing three to two on the issue of whether unnecessary hardship had been established by the evidence. The board then concluded that, by reason of the limitation upon the exercise of their fact-finding power arising under \\u00a745-24-19, they were without jurisdiction to grant the application. This is consistent with the view this court took of that portion of the statute in MayDay Realty Corp. v. Zoning Board of Review, 77 R. I. 469, 474.\\nIn the instant proceeding petitioner argues that there is in the record no evidence to support the minority's finding that unnecessary hardship had not been established. She contends specifically that on the undisputed facts the finding of the minority cannot be sustained, and that the testimony of the realtor on behalf of the objectors as an expert, who stated that the enforcement of the residential zoning classification now in effect would not result in unnecessary hardship, does not constitute legally competent evidence on that issue.\\nWe assume petitioner means that the only evidence in the record tending to prove that a literal application of the present zoning classification would not result in unnecessary hardship to petitioner inheres in the testimony of the realtor and that such testimony is incompetent by reason \\u2022 of being completely without probative force. We are unable to agree with the conclusion thus reached by petitioner who, in our opinion, is questioning the weight of such testimony.\\nAt the hearing before the respondent board petitioner conceded the expert qualification of the realtor who testi fied on behalf of the objectors. His opinion that an application of the zoning ordinance would not result in unnecessary hardship to petitioner was predicated on his knowledge of the property involved and of the neighborhood. The attack on the competency of his testimony as evidence is based entirely upon his admission that he did not inspect the interior of petitioner's house prior to so testifying. Obviously while a lack of such inspection might well impair substantially the weight to be given his testimony, it does not, in our opinion, deprive it of its character as legally competent opinion evidence. It is perhaps appropriate to note that this court will not ordinarily pass upon the weight of evidence when reviewing a decision of the zoning board of review. Lumb v. Zoning Board of Review, 91 R. I. 498, 165 A.2d 504.\\nWe are of the opinion that there is no merit in petitioner's contention as to the probative thrust of the undisputed facts in the record. She argues, as we understand her, that such facts are susceptible of only inferences that will tend to prove a loss to her of all beneficial use of her property if the present zoning classification remains in effect.\\nWe cannot agree that the undisputed facts are not susceptible of a reasonable inference that petitioner may have some beneficial use of her property under its present zoning classification as a residential area. It is to be conceded that in all the circumstances some such potential use may not constitute the most profitable use to which the property could be put, but the mere showing of a loss of some more profitable use does not constitute the hardship contemplated in the enabling act as warranting the grant of a variance. Hazen v. Zoning Board of Review, 90 R. I. 108, 155 A.2d 333. It is our opinion that the undisputed evidence in the record here is susceptible of a reasonable inference that the property under its present zoning classification may be put to some beneficial use.\\nThe decision of the minority of the board may be sustained as supported by competent evidence on the basis of another well-settled rule. It appears that the board made an inspection of the property in the neighborhood prior to conducting the first hearing. It appears further that the minority, in reaching their decision, acted in part at least on the basis of knowledge acquired by their own observations of the property and the neighborhood. Such decision, as extended, reads in pertinent part: \\\"The minority base their reasons therefore on observation of the area and the testimony adduced at the hearing, including that of expert witnesses who testified for the objectors.\\\" In our opinion the record thus discloses that the board, and more particularly the minority thereof, based their decision upon information and knowledge that they had acquired by reason of their observations.\\nIn Monforte v. Zoning Board of Review, 93 R. I. 447, 176 A.2d 726, this court said: \\\"It is the well-settled law in this state that a zoning board of review is presumed to have knowledge concerning those matters which are related to an effective administration of the zoning ordinance. Where it appears from the record that a decision was reached in reliance upon such knowledge, it is considered by this court to constitute legal evidence sufficient to support such a finding.\\\" We reiterated our adherence to this view in MacNevin v. Zoning Board of Review, 94 R. I. 407, 181 A.2d 232.\\nIt is our opinion that in the instant proceeding the record discloses clearly that the board reached their decision pursuant to knowledge and information, including some that was acquired by their own observations, as well as that which will be presumed to be possessed by the board by reason of the character of their function. In these circumstances this knowledge constitutes competent evidence that is sufficient to sustain the decision of the minority. Be cause we conclude that the decision of the minority of the board is supported by competent evidence, it will not be necessary to consider other contentions advanced by the petitioner.\\nHiggins, Cavanagh & Cooney, Joseph V. Cavanagh, for petitioner.\\nWilliam E. McCabe, City Solicitor, Harry Goldstein, Assistant City Solicitor, for the City of Providence.\\nTillinghast, Collins & Tanner, Richard F. Staples, for respondent.\\nThe petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, the decision of the respondent board is affirmed, and the record in the case certified to this court is ordered sent back to the respondent board with our decision endorsed thereon.\"}"

ri/4448680.json

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+"{\"id\": \"4448680\", \"name\": \"John B. Kelaghan vs. Public Utility Hearing Board\", \"name_abbreviation\": \"Kelaghan v. Public Utility Hearing Board\", \"decision_date\": \"1962-03-02\", \"docket_number\": \"\", \"first_page\": \"93\", \"last_page\": \"98\", \"citations\": \"94 R.I. 93\", \"volume\": \"94\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:18:41.661801+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Condon, C. J., Roberts, Paolino and Powers, JJ.\", \"parties\": \"John B. Kelaghan vs. Public Utility Hearing Board.\", \"head_matter\": \"John B. Kelaghan vs. Public Utility Hearing Board.\\nMARCH 2, 1962.\\nPresent: Condon, C. J., Roberts, Paolino and Powers, JJ.\", \"word_count\": \"1627\", \"char_count\": \"9851\", \"text\": \"Roberts, J.\\nThis is a statutory petition for the reversal of an order of the respondent board brought pursuant to the provisions of G. L. 1956, \\u00a739-5-14. While the petition was pending in this court the motion of Blackstone Valley Gas and Electric Company, hereinafter referred to as Black stone, and Valley Gas and Electric Company, hereinafter referred to as Valley, for leave to intervene was granted and thereafter the intervenors moved to dismiss the instant petition.\\nThe petitioner prays that this court reverse an order of said board entered by it on July 27, 1961. It is described in the petition as being an \\\"Addendum\\\" to certain prior orders entered by the board on October 19, 1960 in the matter of the joint petition of Blackstone and Valley that theretofore on an appeal from the public utility administrator had been heard and determined. The validity of such prior orders entered by the board pursuant to the joint petition of Blackstone and Valley was considered by this court in Kelaghan v. Public Utility Hearing Board, 92 R. I. 82, 166 A.2d 421.\\nThe record in that case reveals that Blackstone and Valley had jointly petitioned the public utility administrator for consent and approval of a plan under which Blackstone would convey certain of its properties to Valley and would purchase from Valley certain shares of its capital stock. After a hearing thereon the administrator entered an order giving consent and approval to the plan above referred to, and the petitioner in the instant case appealed therefrom to the respondent board. After a hearing thereon the board affirmed the order of the administrator granting consent and approval of the proposed plan set out in the joint petition of Blackstone and Valley, and its order giving effect thereto was entered on October 19, 1960.\\nThereafter the petitioner in the instant action in that case brought a petition seeking a reversal of the orders of the respondent board, and this court subsequently permitted Blackstone and Valley to intervene therein. The matter was heard by this court, and in an opinion filed thereafter the court held that a review of the merits of the entry of the orders of October 19, 1960 by the respondent board would be without purpose and thereupon granted the intervenors' motion to dismiss that petition.\\nFrom the record before us in the instant case it appears that pursuant to the decision of the board after hearing on the petitioner's appeal to it from the orders of the administrator, that board on October 19, 1960 entered two specific orders. The first of these denied and dismissed the then appellant's motion to dismiss the joint petition of Blackstone and Valley. The second gave the consent and approval of the board to \\\"the sale by Blackstone to Valley and the purchase by Valley from Blackstone of the gas properties and the related rights \\\" then owned by Blackstone. It does not appear from the record that the board entered any order concerning the giving of approval and consent to the acquisition by Blackstone of stock and securities owned by Valley.\\nWe are unable to perceive from the record any explanation for the entry on July 27,1961 of the addendum to which the instant petitioner objects. The addendum, as it appears in the record, is an order of the respondent board consenting and approving \\\"of the purchase by Blackstone from Valley of said 399,997 shares of stock at the par value thereof for the consideration described in the Petition, and the purchase by Blackstone from individuals of the additional three shares of common stock of Valley now outstanding for $30.00 in cash.\\\" From this language it could be reasonably assumed that the addendum was entered by the board for the purpose of giving its express consent and approval to the acquisition by Blackstone of stock and securities owned by Valley for which prayer had been made in the joint petition to the administrator.\\nThe petitioner contends that the respondent board was without jurisdiction to enter the order referred to above which constitutes the addendum. In so contending, petitioner appears to rely upon our decision in Kelaghan v. Public Utility Hearing Board, supra. In that case we found that the jurisdiction of the securities and exchange commission, hereinafter referred to as the commission, to approve the acquisition by a holding company of assets or securities of a utility pursuant to the provisions of sec. 10 of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. \\u00a779j, had become absolute and complete upon a finding by the commission pursuant to that section of the statute that compliance with applicable provisions of state law would be detrimental to the carrying out of the provisions of sec. 11 of the act, 15 U.S.C.A. \\u00a779k. The argument of petitioner is predicated upon a misconception as to the effect that the attainment of complete jurisdiction by the commission in the premises would have upon the jurisdiction of the respondent board to enter approve and consent orders pursuant to the provisions of G. L. 1956, \\u00a739-3-17 and 39-3-25.\\nIn Kelaghan v. Public Utility Hearing Board, supra, as petitioner appears to concede, we declined expressly to pass upon the validity of the entry of the orders that were the subject matter of the petition for reversal. In our opinion we noted with particularity that the proceeding before the respondent board in which the approve and consent orders were entered \\\"is in no manner a part of the proceedings that have been conducted before the commission We further stated that in our opinion the proceeding conducted before the respondent board was undertaken \\\"primarily for the purpose of having the consent and approval of the state administrator evidence to the commission that applicable provisions of state law had been complied with in making the acquisitions in question.\\\" We then concluded that in view of the acquirement of complete jurisdiction by the commission to approve the acquisitions herein under consideration, any decision on the part of this court concerning the validity of the entry of those orders by the respondent board would be without force and effect and therefore meaningless.\\nIn expressly declining to review the validity of the orders so entered by the respondent board, we found that such a review, even were it to result in our granting the petition for reversal of those orders, would \\\"in such circumstances constitute superfluous action in which this court will not engage.\\\" We are unable to perceive that there is anything in the language of the opinion which warrants a conclusion that this court therein ruled that the respondent board was without jurisdiction to enter the approve and consent orders contemplated in our statutes concerning such transactions between utilities. To the contrary, it is our opinion that the respondent board on July 27, 1961 had jurisdiction to enter such orders, however pointless an exercise thereof might be.\\nThe intervenors have urged that the instant petition be dismissed for several reasons, some of which, in our opinion, are meritorious. However, because we take the view that the respondent board was acting within its powers in entering the order that constitutes the addendum, the instant petition is without merit and, in our opinion, should be dismissed for that reason. An administrative agency may in appropriate circumstances so correct its records as to state the truth as to its doings therein. The character of the evidence that will be sufficient to warrant an agency in making such correction is a matter for determination by the agency in an exercise of sound discretion, although when such correction is proposed on the basis of evidence dehors the record the agency should act thereon with appropriate caution. See McQuiston v. Tyler, 186 Okla. 315.\\nHowever, in the instant case it is clear from the record that the order entered therein did not fully reflect the doings of the respondent board with respect to the joint petition of Blackstone and Valley before it on an appeal from an order of the public utility administrator. In the joint petition Blackstone had prayed for the entry of an order approving conveyance by it of certain assets and properties to Valley and for the approval of its proposal to acquire certain capital stock of Valley.\\nRaymond J. McMahon, Jr., for petitioner.\\nEdwards & Angel\\u00ed, Edward Winsor, Robert S. Davis, Ernest N. Agresti, Morrissey & Conley, Robert J. Conley, for intervenors.\\nThe appeal taken from the order of the administrator to the respondent board clearly brought up a matter of an order approving the acquisition by Blackstone of stock in Valley as well as the matter of a conveying by Blackstone of assets to Valley. An examination of the written decision of the respondent board reveals that its determination of the appeal was intended to include an approval of both prayers. However, the order entered did not include at least an express approval of Blackstone's proposed acquisition of certain of Valley's capital stock. In the circumstances it is clear that the record under consideration here did not contain an order, the inclusion of which would be necessary to reflect the board's determination to approve the acquisition by Blackstone of capital stock in Valley. In entering such an order on July 27, 1961 in the form of the addendum herein under consideration, the board's correction of its records was proper and within its powers. Therefore it is our opinion that the instant petition must be denied and dismissed.\\nThe intervenors' motion to dismiss the petition is granted, and the record certified to this court is ordered returned to the respondent board with our decision endorsed thereon.\"}"

ri/4449491.json

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+"{\"id\": \"4449491\", \"name\": \"John J. Kelly vs. Zoning Board of Review of the City of Providence\", \"name_abbreviation\": \"Kelly v. Zoning Board of Review\", \"decision_date\": \"1962-04-26\", \"docket_number\": \"\", \"first_page\": \"298\", \"last_page\": \"304\", \"citations\": \"94 R.I. 298\", \"volume\": \"94\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:18:41.661801+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Condon, C. J., Roberts, Paolino, Powers and Frost, JJ.\", \"parties\": \"John J. Kelly vs. Zoning Board of Review of the City of Providence.\", \"head_matter\": \"John J. Kelly vs. Zoning Board of Review of the City of Providence.\\nAPRIL 26, 1962.\\nPresent: Condon, C. J., Roberts, Paolino, Powers and Frost, JJ.\", \"word_count\": \"1745\", \"char_count\": \"10596\", \"text\": \"Roberts, J.\\nThis petition for certiorari was brought to review a decision of the zoning board of review of the city of Providence denying the petitioner's application for an exception authorizing the extension of a nonconforming use now being conducted in a building located on lot 54 of assessor's plat 6 on Hope street in that city. This property is presently in a residential R-2 zoning classification. The writ issued, and pursuant thereto the respondent board certified to this court the records of the proceedings in the case.\\nIt appears therefrom that petitioner, a funeral director, owns the Hope street property and that for about thirteen years he has been using the building thereon located in part as a residence for his family and in part as a funeral home. That the use thus being made of the property constitutes a lawful nonconforming use under the ordinance is not disputed. It appears further from the record that petitioner proposes to erect a one-story addition to the present building in which there would be located a lounge and an additional layout room, so called. Included also in the record is a plot plan filed by petitioner, in which it is indicated that space for off-street parking would be provided for four automobiles.\\nThe petitioner has made application for a particular exception provided for in the ordinance which provides for the authorization of an extension of a nonconforming use within the confines of the same lot on which that use has lawfully been carried on. He refers expressly to sec. 23 of the ordinance, which relates to nonconforming uses. In sub-sec. E thereof provision is made for a special exception to so extend a nonconforming use and reads as follows: \\\"The regulations of this 'Section pertaining to nonconforming uses and buildings shall not preclude the extension of such nonconforming uses or buildings upon the same lot occupied by such use or building at the time this Ordinance became effective, if first approved by the Board as provided for in Sections 91 and 92.\\\"\\nOn September 19, 1961 the board made an inspection of the property of petitioner and thereafter on the same day held a hearing on his application. It appears from the transcript that it was of brief duration and that no' person appeared thereat to object to the granting of the exception. The transcript reveals that there was some discussion between petitioner and members of the board concerning the problem of parking in the vicinity of funeral homes and the adequacy of such off-street parking space as petitioner proposed to provide.\\nHowever, the record includes a letter from the traffic engineering department in which the traffic engineer stated that his department had no objection to the plan for off-street parking submitted by petitioner. Also included in the record is a letter from the city plan commission wherein the director of that commission recommended that the ap plication 'be denied. The reasons for this recommendation as stated in the letter are: \\\"The granting of this petition would overcrowd the lot and the increased commercial use on this lot would lower adjoining property values in this good residential neighborhood.\\\"\\nThe board thereafter by a unanimous vote adopted a resolution denying the application. They set out therein that they had inspected the property, had examined and weighed the evidence, and stated the grounds on which they denied the application as follows: \\\" in the opinion of the members of the Zoning Board of Review, the erection of the proposed addition for an additional layout room, without providing for adequate off-street parking facilities, would tend to substantially increase the traffic and parking problems in the area and would also tend to lower adjoining property values of the surrounding predominantly residential neighborhood\\nThe petitioner contends that the denial of his application on the ground that his proposed provisions for off-street parking were inadequate constitutes an abuse of discretion. This is so, he argues, because the proposed off-street parking facilities comply fully with the requirements for such parking set out in sec. 24C 2 (d) of the ordinance, which subsection is concerned with the off-street parking facilities required for certain commercial uses. Whether this subsection has application in the instant case we need not decide, it being clear from the record, in our opinion, that the denial was predicated upon the board's conclusion that they were without authority to grant the exception sought pursuant to the provisions of sec. 92 of the ordinance.\\nSection 92 provides that the board may make certain prescribed special exceptions to the terms of the ordinance \\\"when in its judgment the public convenience and welfare will be substantially served, or the appropriate use of neighboring property will not be substantially or permanently injured In Hazen v. Zoning Board of Review, 90 R. I. 108, 155 A.2d 333, this court held that when a board of review passes upon an application for an exception under an ordinance containing this or a similar provision, it is required, among other things, to make a finding as to whether a grant of the exception would substantially or permanently injure neighboring property and then said at page 335: \\\"If the board finds that granting the exception would injure such property it is without authority to act affirmatively upon the petition.\\\"\\nWhen the board's reasons for denying the exception are viewed in the light of the record here, it becomes clear, in our opinion, that they denied this application because they had concluded that they were without authority to grant the exception, having found that the inadequacy of the proposed off-street parking facilities would substantially injure neighboring property.\\nThe petitioner, however, also questions the validity of the board's exercise of their fact-finding power. This contention, as we understand it, raises a question as to whether there is in the record any legal evidence to support a finding that the inadequacy of the parking facilities proposed at the funeral home would result in substantial or permanent injury to neighboring property. There is merit in this contention. It is settled that this court, when reviewing a decision of a board of review on certiorari, will not weigh the evidence contained in the record, but it will examine the record for the purpose of ascertaining whether there is any legal evidence therein to support the decision of the board. Where there is legal evidence upon which the decision of the board may reasonably rest, it will not be disturbed. Laudati v. Zoning Board of Review, 91 R. I. 116, 161 A.2d 198. Upon an examination of the record here, it is our conclusion that there is therein no legal evidence upon which the decision of the board could reasonably rest.\\nIn the first place, the record is devoid of any testimony that the erection of the proposed addition to the funeral home would be accompanied by an increase in petitioner's business that would result in the generation of increased traffic in the neighborhood or the intensification of any traffic congestion therein. In fact, there is no evidence in the record concerning the extent to which the conduct of petitioner's business presently generates traffic or that any congestion results therefrom. Neither is there any testimony that in the circumstances an increase in the volume of traffic moving in the area would have an adverse effect upon the value of surrounding properties.\\nThere is in evidence the letter in which the director of the city plan commission concludes that the erection of the addition would result in an increased commercial use of the lot and would lower the value of surrounding properties. This letter constitutes a bare statement of a conclusion without supporting evidence and without any qualification of the writer as an expert. Neither does it appear that the record contains any evidence tending to prove that the erection of the addition would increase the commercial use of the lot or that such an increase in the commercial use would affect adversely the value of the neighboring properties.\\nIt is true that a board of review is presumed to have a special knowledge of matters that are peculiarly related to the administration of a zoning ordinance and of local conditions as they are affected by the provisions of a zoning ordinance. Harrison v. Zoning Board of Review, 74 R. I. 135, 141; Pistachio v. Zoning Board of Review, 88 R. I. 285. It is also true that a board of review may properly act on applications for an exception on the basis of knowledge that it has acquired through the making of an inspection of the property to which the application refers. Lawson v. Zoning Board of Review, 85 R. I. 54, 60.\\nHowever, while this court will presume the possession of such special knowledge by these boards of review, it will not presume that in making a challenged decision the board acted pursuant to such special knowledge in the absence of some disclosure to that effect in the record. Perrier v. Board of Appeals, 86 R. I. 138, 146. Neither will this court presume that a board reached a decision pursuant to^ knowledge acquired by it through an inspection of the property under consideration. To sustain a decision on the basis of the board's acting on knowledge acquired by inspection, the record must contain some reasonable disclosure as to the knowledge so acquired and their action pursuant thereto. Buckminster v. Zoning Board of Review, 68 R. I. 515.\\nFrancis B. Brown, for petitioner.\\nWilliam E. McCabe, City Solicitor; Harry Goldstein, Assistant City Solicitor, for respondent.\\nWe are unable to perceive anything in the instant record which discloses that the board in deciding that a grant of the exception here sought would lower the value of neighboring properties acted pursuant to any special knowledge they are presumed to have or knowledge that they acquired by their inspection of the premises. In these circumstances we are constrained to conclude that there is in the record here no legal evidence upon which the decision of the board can reasonably rest, and it is our opinion, therefore, that the decision was arbitrary and constituted an abuse of discretion.\\nThe petition for certiorari is granted, the board's decision is quashed, and the records certified are ordered returned to the board with our decision endorsed thereon.\"}"

ri/4453287.json

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+"{\"id\": \"4453287\", \"name\": \"John J. Nixon vs. Charles M. Connery, Admr., et al.\", \"name_abbreviation\": \"Nixon v. Connery\", \"decision_date\": \"1945-06-20\", \"docket_number\": \"\", \"first_page\": \"142\", \"last_page\": \"147\", \"citations\": \"71 R.I. 142\", \"volume\": \"71\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T20:02:59.717239+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present : Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"parties\": \"John J. Nixon vs. Charles M. Connery, Admr., et al.\", \"head_matter\": \"John J. Nixon vs. Charles M. Connery, Admr., et al.\\nJUNE 20, 1945.\\nPresent : Flynn, C. J., Moss, Capotosto, Baker and Condon, JJ.\", \"word_count\": \"1805\", \"char_count\": \"10313\", \"text\": \"Moss, J.\\nThis is a suit in equity begun by a bill of complaint against the respondent Charles M. Connery, as administrator of the estate of Lawrence F. Fitzgerald, deceased intestate, and against any claimants that there might be to that estate. It is before us on complainant's appeal from a final decree denying and dismissing the bill of complaint.\\nThe complainant asserted in his bill that, by reason of an agreement between them, he was entitled to all of the property owned by the deceased at the time of his death. The complainant alleged that this agreement was made after the death of Fitzgerald's wife and was that, if he would live with Fitzgerald and care for him, when he needed care, until the latter's death, he should then have all of Fitzgerald's property; and that he had performed his part of the agreement. The administrator in his answer denied that there was any such agreement.\\nIt was also alleged in the bill, and admitted by the administrator's answer, that the decedent at the time of his death had a leasehold interest in certain land and the buildings thereon, in the town of Bristol in this state, which leasehold interest had belonged to himself and his wife as joint owners but of which he had become the sole owner upon her death. It was also alleged in the bill, and admitted in the administrator's answer, that the decedent at the time of his death owned certain other personal property inventoried at $5027.77.\\nThe substantial relief prayed for in the bill was that specific performance of the alleged agreement should be enforced \\\"against the heirs, legatees, devisees or distributees\\\" of the decedent, \\\"whether known or unknown and against the respondent Administrator\\\"; and that he should be directed, upon payment of debts and administration expenses, to transfer the balance of the estate subject to his control to the complainant.\\nThe complai nant also alleged that he had been frequently told by the decedent that the latter had no relatives to succeed to his property. The complainant further alleged that he himself had no knowledge of the existence or addresses of any such relatives or persons who might be entitled to claim as heirs or distributees of the decedent. He therefore prayed not only that a subpoena to the respondent administrator be issued, but also that notice be given, by publication in a certain newspaper published in the town of Bristol, to all persons who might be interested in the estate of the decedent, as heirs, devisees, legatees, distributees or otherwise, of the pendency of the bill of complaint and ordering them to make answer thereto within a certain time. This prayer was granted by an order of a justice of the superior court filed April 4, 1942, the date of the filing of the bill.\\nNotice was published in accordance with this order; and, no appearance having been entered or any plea, answer or demurrer filed within the time allowed by such notice, a decree was entered on May 6, 1942 that the bill of complaint be taken as confessed by all unknown heirs, devisees, legatees and distributees of the decedent. The complainant contends that this decree, not having been set aside thereafter, is decisive of his right to the relief prayed for in his bill of complaint.\\nWe find that there is no merit in this contention; that that decree did not affect the merits of the controversy between the complainant and the administrator; and that the burden was on the complainant, in order to be entitled to any of the substantial relief prayed for in his bill, to prove, at least by a preponderance of the evidence, that the decedent made with him the agreement that is set forth in the bill.\\nIt is well settled that such a decree pro confesso only operates to prevent any person against whom it has been entered from taking part in the hearing before the court on the merits of the case, and does not operate to prevent him from afterwards claiming the benefit of the rule laid down in Hazard v. Durant, 12 R. I. 99, at 100. That rule is as follows: \\\"And if a bill be taken pro confesso against one of two or more defendants, and the others, making answer, show that it is devoid of equity, it will be dismissed as against all of them.\\\"\\nThis court there cited, in support of that rule, Clason v. Morris, 10 Johns. Rep. 524, and Frow v. De La Vega, 15 Wall. 552. Those cases fully support that rule, the supreme court of the United States stating in the latter of them, at page 554, and citing the former case in support of the statement, as follows: \\\"The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike\\u2014 the defaulter as well as the others. If it be decided in the complainant's favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.\\\"\\nIn view of the law as laid down in the cases above cited, we are of the opinion that there is no merit in the contention of the complainant in the instant cause that, by reason of the fact that no heir, devisee, legatee or distributee to whom notice by publication was given entered an appearance, he was entitled to the relief against the administrator which is prayed for in the bill. Moreover, the complainant did not, in the superior court, seek any decree against the administrator on that ground but had the cause assigned for hearing on its merits as against the latter and it was so assigned and heard. Nor did he, in his reasons of appeal from the final decree of the superior court, file any reason based on that ground.\\nOur final conclusion must then depend entirely on whether or not we are convinced, after examining and considering the very conflicting evidence in the cause, that the trial justice was wrong in finding, as he did in his final d\\u00e9cision, that the complainant had not proved, by a fair preponderance of the evidence, the agreement alleged in the bill of complaint and his faithful and full performance of his part thereof.\\nThe complainant testified, in substance and effect, that about eight months before the decedent's death, which occurred very soon after his seventieth birthday, it was agreed between them as follows: that Nixon, who was employed during the daytime, would sleep every night in a room in Fitzgerald's house and would, from the time when Nixon got there until he left in the morning, take care of Fitzgerald, when he needed care; and that if he performed his part of the agreement, until Fitzgerald's death, Nixon should have anything there that then belonged to the former. The complainant testified that he had fully performed his part of the agreement.\\nAnother witness testified that Fitzgerald said to him, in the presence of and referring to the complainant: \\\"If Jack will only come and live with me as long as I live, I will give Jack everything I have got.\\\" A third witness testified that Fitzgerald said to him that he had made an agreement with Nixon, when the latter had gone to live with him and take care of him for the rest of his life, that he would, when he died, leave everything to Nixon for the rest of the latter's life.\\nA fourth witness testified that about six weeks before Fitzgerald's death, the latter said that he and Nixon were getting on well together and that if Nixon stayed with him and he died before Nixon, the latter was to have everything. According to a fifth witness, Fitzgerald said, some time after Nixon went to live with him and referring to Nixon: \\\"Jack is living with me now and we get along fine. If he stays with me I have agreed to give him everything I have got when I die. I have asked him before but he wouldn't come out, but he finally came.\\\"\\nOn the other side there was much testimony, by numerous witnesses, of statements made by the complainant and conduct by him both before and after the death of Fitzgerald that were wholly inconsistent with the making of any such agreement and his performance of what would have been his obligations thereunder. We see no sufficient reason for stating and discussing this testimony in detail.\\nPhilip S. Knauer, Anthony Grilli, John R. Ferguson, for complainant.\\nWilliam, T. O'Donnell, Ralph M. Greenlaw, Edwin J. Tet-low, for respondent Connery.\\nLuden Capone, Town Solicitor, for town of Bristol.\\nThe conflict in the testimony raised a clear issue of credibility for the trial justice to decide and he decided it in favor of the respondent administrator. In his decision, after discussing the material evidence fairly and in considerable detail, he came to the conclusion therefrom that the complainant had not proved by a fair preponderance of the credible evidence the two requisites for a decree in his favor, viz., that the agreement alleged in the bill of complaint was made between the complainant and Fitzgerald, the decedent, and that the former had faithfully and fully performed the terms of such agreement on his part to be performed. The trial justice therefore decided that the bill of complaint should be denied and dismissed; and a final decree was entered accordingly.\\nWe have considered the testimony, which is conflicting, and the arguments of counsel for the respective parties and as a result we cannot say that the decision of the trial justice was clearly wrong. We are therefore of the opinion that the decree based thereon, in favor of the respondent, denying the relief prayed for in the bill of complaint, should be affirmed.\\nThe complainant's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.\"}"

ri/4807454.json

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+"{\"id\": \"4807454\", \"name\": \"Joseph Gill vs. Leo Laquerre\", \"name_abbreviation\": \"Gill v. Laquerre\", \"decision_date\": \"1931-01-08\", \"docket_number\": \"\", \"first_page\": \"158\", \"last_page\": \"162\", \"citations\": \"51 R.I. 158\", \"volume\": \"51\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:03:35.151571+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Stearns, C. J., Rathbun, Sweeney, and Murdock, JJ.\", \"parties\": \"Joseph Gill vs. Leo Laquerre.\", \"head_matter\": \"Joseph Gill vs. Leo Laquerre.\\nJANUARY 8, 1931.\\nPresent: Stearns, C. J., Rathbun, Sweeney, and Murdock, JJ.\", \"word_count\": \"1234\", \"char_count\": \"6900\", \"text\": \"Murdock, J.\\nThis is an action of trespass on the case for negligence. The- action is brought under Section 14, Chapter 333, General Laws, 1923, to recover damages for the death of plaintiff's daughter, a child five years and two months of age at the time of her death. As no administrator of her estate was appointed the father sues in behalf of all the beneficiaries. A jury in the Superior Court returned a verdict for the plaintiff in the sum of $4,698.91 and the case is in this court on defendant's bill of exceptions.\\nAll of the exceptions bearing on the liability of the defendant have been waived. The only questions presented relate to the damages and the admission of certain testimony to establish the same.\\nThe bill of exceptions does not conform to the statute and to the decisions of this court. The statute requires that a party filing a bill of exceptions . . . \\\"shall state separately and clearly the exceptions relied upon.\\\" The bill contains nine paragraphs. The first paragraph, although not in proper form, will pass as an exception to the refusal of the trial justice to grant a new trial. The next seven paragraphs are not exceptions at all but reasons assigned in support of the motion for a new trial. These may properly be set forth in a brief but they have no place in a bill of exceptions. The ninth paragraph is as follows: \\\"9. The trial justice erred in his rulings in the course of the trial as to which exceptions were noted on pp. 27, 41, 42, 43, 44\\\" 47, 69, 72, 73, 74, 76, 77, 80, and 81 of the transcript.\\\" Most-of these exceptions are to the admission of testimony. One is an exception to the action of the court in permitting plaintiff to reopen his case and one is to the refusal of the court to direct a verdict for the defendant. To group a number of exceptions in this manner does not conform to the statute and our decisions relating to the same. See Nichols v. Mason & Co., 44 R. I. 43; Fainardi v. Pausata, 45 R. I. 462; State v. Amaral, 47 R. I. 245. But as most of the exceptions have been abandoned and the issue narrowed to the question of damages, we will consider the exceptions relating to such question. \\u2022\\nThe defendant rests his case here on the proposition that for the death of a child only nominal damages may be recovered unless it be the unusual case of a child who has demonstrated a capacity for some particular vocation.\\nIn Dimitri v. Cienci & Son, 41 R. I. 393, in construing Section 14, Chapter 283, General Laws, 1909 (now Section 14, Chapter 333, General Laws, 1923), this court determined that the basis for recovery of damages under the statute for death by wrongful act is the same for an infant as for an adult, deducting in the case of an infant from the expectancy of life the years of minority. In the course of the opinion, Sweetland, C. J., said: . . . \\\"Should a different view of the purpose of the statute be taken, when the decedent is a minor? The statute in its language makes no distinction, and in our opinion a difference in construction based upon a difference in the ages of decedents would be entirely unwarranted.\\\" The rule of law in this State for the ascertainment of damages in case of death by wrongful act was established in McCabe v. Narragansett Electric Lighting Co., 26 R. I. 427, where the court said: \\\"It is obvious, too, that the loss sustained by the plaintiff here is the present value, of the net result remaining after his personal expenses are deducted from his income or earnings. To ascertain this it is, of course, necessary to ascertain first the gross amount of such prospective income or earnings, then to deduct therefrom what the deceased would have to lay out as a producer to render the service or to acquire the money that he might be expected to produce, computing such expenses according to his station in life, his means and personal habits, and then to reduce the net result so obtained to its present value.\\\"\\nIt is contended that, owing to the fact that the decedent in the instant case was too young to have had any earning capacity, it is impossible to comply with the above rule and therefore only nominal damages can be recovered. We can not give our assent to this view of the law applicable to a case of this kind. To so hold would in effect result in a nullification of the statute. It is true that no rule approximating certainty for the assessment of damages can be laid down in actions for damages to the estate of a child too young to have demonstrated an earning capacity but it does not follow that for this reason the courts are powerless to afford a remedy.\\nWe are of the opinion that the practical rule in these cases is to bring before a jury the facts relating to the age, sex, physical and mental characteristics of the child, the position in life and earning capacity of its parents as bearing upon the conditions under which the child would probably have been reared and educated and leave it to the jury to assess the damages subject to the power and duty of the trial justice to confine the award within the bounds of reasonable probability. While this rule leaves much to be desired as to certainty it is preferable to the alternative urged by the defendant which would permit one legally responsible for the death of a child to escape civil liability therefor. There is ample authority for this view of the law. Tiffany, Death by Wrongful Act, 2d ed. 351; 8 R. C. L. pp. 835 to 842; Hoon v. Beaver Valley Traction Co., 204 Pa. 369; Fedorawicz v. Citizens Electric Illuminating Co., 246 Pa. 141; Love v. Detroit, 170 Mich. 1; Gorham v. Cohen, 102 Conn. 567. In Hoon v. Beaver Valley Traction Co., supra, the court said, in speaking of damages in the case of a child six and one-half years of age: \\\"All that a trial judge can do is to state clearly the true ground of recovery limiting it to the probable pecuniary loss, and pointing out the elements to be considered, and to permit no excessive verdict to stand.\\\"\\nAt the trial in the court below the plaintiff was permitted to testify that he intended to educate the child to become a school teacher and teachers in the public schools of Woonsocket were called to testify as to their earnings and the amount they were able to save after paying their living expenses. This line of testimony was inadmissible. Parents may influence but they can not always determine the occupation of their children and such testimony injects further uncertainty into a case already replete with uncertainties. The defendant's exception to the admission of this evidence is sustained.\\nJohn B. Higgins, for plaintiff.\\nBenjamin F. Lindemuth, Henshaw, Lindemuth & Baker, for defendant.\\nAll of the other exceptions are overruled.\\nThe case is remitted to the Superior Court for a new trial on the question of damages only.\"}"

ri/4823851.json

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+"{\"id\": \"4823851\", \"name\": \"Petition of Edward N. Browning and George W. Browning for an Opinion of the Court\", \"name_abbreviation\": \"In re Browning\", \"decision_date\": \"1889-02-09\", \"docket_number\": \"\", \"first_page\": \"441\", \"last_page\": \"444\", \"citations\": \"16 R.I. 441\", \"volume\": \"16\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T18:14:10.700421+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Petition of Edward N. Browning and George W. Browning for an Opinion of the Court.\", \"head_matter\": \"Petition of Edward N. Browning and George W. Browning for an Opinion of the Court.\\nA testator by the fifth clause of his will devised certain realty, subject to legacy charges, to A. and B. \\u201c for and during the term of their natural lives, and after them equally to their children, their heirs and assigns forever.\\u201d By the eleventh clause of his will the testator added, \\u201cIn clause fifth of my will my intention and meaning is that, after the decease of . said A. and B., or either of them, one half of said estates is to descend to said A.\\u2019s heirs and assigns, and the other half to descend to said B.\\u2019s heirs and assigns.\\u201d\\nHeld, that, under the eleventh clause explaining the fifth, A. and B., according to the wle in Shelley\\u2019s case, took each an undivided half of the realty in fee simple.\\nCase stated for an opinion of the court under Pub. Stat. R. I. cap. 192, \\u00a7 23.\\nProvidence,\\nFebruary 9, 1889.\", \"word_count\": \"1277\", \"char_count\": \"7123\", \"text\": \"Durfee, C. J.\\nThe case stated shows that tbe late Abijah Browning died leaving a will, wbicb has been duly proved, by the fifth clause of which he devised certain real and personal property, subject to certain lega cies charged thereon, to his half brothers, Edward N. Browning and George W. Browning, the petitioners, \\\" for and during the terra of their natural lives, and after them equally to their children, their heirs and assigns forever.\\\" The eleventh clause of the will is as follows, to wit: \\\" In clause fifth of my will, my intention and meaning is, that, after the decease of said Edward N. and George W. Browning, or either of them, one half of said estates is to descend to said Edward's heirs and assigns, and the other half to descend to said George's heirs and assigns.\\\" The case also shows that Edward has contracted to sell to George, and George has contracted to purchase of Edward, the latter's half of said estate, subject to the charges, if Edward can make a good and indefeasible title thereto in fee simple, and it propounds the question, whether he takes and can convey by his deed an indefeasible estate in fee simple in the one undivided half of said estate, and, if not, what estate does he take therein under said will.\\nWe think there is no doubt that the fifth clause taken by itself would give, both under our statute and at common law, the estate in equal moieties to Edward and George for life, and after them in remainder to their children respectively, in fee simple. Pub. Stat. R. I. cap. 182, \\u00a7 2; 3 Greenleaf Cruise Dig. Tit. xxxvin. cap. 14, \\u00a7 39-43 ; Smith v. Chapman, 1 Hen. & M. 240, 290-294. The question is, whether this disposition is altered by the eleventh clause so that Edward and George, instead of taking life estates merely, take estates in fee simple under the rule in Shelley's case. If, in place of the words \\\" and after them equally tb their children, their heirs and assigns forever,\\\" in the fifth clause, we substitute the words in which the testator states his intention and meaning, we shall have first a. devise to Edward and George, \\\" for and during the term of their natural lives,\\\" and then the following, to wit: \\\" and after the decease of said Edward N. and George W. Browning, or either of them, one half of said estates is to descend to said Edward's heirs and assigns, and the other half to descend to said George's heirs and assigns.\\\" If the clause had been originally so written, we think there can be no doubt that, notwithstanding some inaptnesses of expression, it would have to be construed as a devise to Edward and George for life as tenants in common, with remainders to their heirs and assigns respectively, which under the rule in Shelley's case would be a devise of one undivided half of the estates to each of them in fee simple. The eleventh clause, however, purports to be simply explanatory .of tbe fifth, and must be considered in that light, and the question is, whether, considering it so, we reach any different conclusion. The construction in this view is not wholly free from doubt, but the eleventh clause contains two expressions which, as they are connected with each other, seem to us to merit special attention. The clause declares \\\" one half of said estates is to descend to said Edward's heirs and assigns, and the other half to descend to said George's heirs and assigns.\\\" If the first takers take simply life estates, there will be nothing to descend from them to their heirs. The implication is that a fee was intended to be given to Edward and George. There are cases in which the word \\\" descend \\\" has been taken in this sense. Eaton v. Tillinghast, Trustee, 4 R. I. 276, 280 ; Griswell's Appeal, 41 Pa. St. 288. Furthermore, the estates are not only to descend, they are to descend to heirs and assigns. The connection is significant, for the words \\\" heirs and assigns \\\" are the common words of inheritance or limitation. If the word \\\" heirs \\\" had been used alone, it might be supposed that it was used, not in its technical sense to signify the entire line of descent, but popularly to signify tbe immediate heirs, or the persons answering to the description of heirs at the death of the first takers. The joinder of the two words heirs and assigns militates against this view; for mere tenants for life could have no assigns to take their estates after them, whereas tenants in fee could devise their estates, and the devisees would be their testamentary assigns. Baily v. De Crespigny, 10 B. & S. 1, 12. The two expressions both conflict with the supposition that Edward and George were intended to take only as life tenants ; and considering the rigor of the rule in Shelley's case, and the technical strin gency of the precedents, we are of opinion that said Edward and George must be held to have taken the estates in fee simple. And see Angell, Petitioner, 13 R. I. 630, and Burges v. Thompson, 13 R. I. 712, and cases cited.\\nJames Tillinghast, for petitioners. .\\nThe manner in which the legacies are charged favors this construction. The form of the charge is this, to wit: The devise is to Edward and George, as before stated, \\\" they, said Edward and George, paying out of the same five hundred dollars to each of my half sisters, Ida May Browning and Roby Ann Browning, within five years from my decease, to be paid to them in annual instalments of one hundred dollars, on the 25th day of December, in each year.\\\"\\nWe therefore declare it to be our opinion that Edward Browning took under the will of the late Abijah Browning an undivided half of the land, described in the fifth clause thereof, in fee simple, and can by his deed convey to his brother George an indefeasible estate in fee simple therein. Order accordingly.\\nAs follows:\\n\\\" Sect. 2. No person seized in fee simple shall have a right to devise any estate in fee tail for a longer time than to the children of the first devisee; and a devise for life to any person, and to the children or issue generally of such devisee, in fee simple, shall not vest a fee tail estate in the first devisee, but an estate for life only, and the remainder shall, on his decease, vest in his children or issue generally, agreeably to the direction of such will.\\\"\"}"

ri/4841081.json

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+"{\"id\": \"4841081\", \"name\": \"William L. G. Phetteplace et al. vs. British & Foreign Marine Insurance Co.\", \"name_abbreviation\": \"Phetteplace v. British & Foreign Marine Insurance\", \"decision_date\": \"1901-05-17\", \"docket_number\": \"\", \"first_page\": \"26\", \"last_page\": \"34\", \"citations\": \"23 R.I. 26\", \"volume\": \"23\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:05:32.432230+00:00\", \"provenance\": \"CAP\", \"judges\": \"Presknt : Stiness, 0. J., Tillinghast and Douglas, JJ.\", \"parties\": \"William L. G. Phetteplace et al. vs. British & Foreign Marine Insurance Co.\", \"head_matter\": \"William L. G. Phetteplace et al. vs. British & Foreign Marine Insurance Co.\\nPROVIDENCE\\nMAY 17, 1901.\\nPresknt : Stiness, 0. J., Tillinghast and Douglas, JJ.\\n(1) Marine Insurance. Policy. Evidence.\\nWhere from the face of a marine insurance policy it is doubtful whether the intent of the parties was that the policy should protect against loss by leakage from whatever cause arising, or against marine risks only, parol evidence is admissible to show the intent of the parties and what \\u25a0 construction they themselves had put upon it.\\n(2) Marine Insurance.\\nA marine insurance policy covered all shipments of oil from ports in the Mediterranean Sea to New York, Philadelphia, or Boston, direct or via port or ports and at and thence to Providence, with privilege of transshipment, including risk of craft to and from the ship or vessel, each craft to be considered a separate risk; covered leakage amounting to five per cent, on each barrel over ordinary leakage, which was agreed to be two per cent.; not liable for particular average, nor for breakage of merchandise unless occasioned by stranding or collision with another vessel; the perils which the insurance company took upon itself were of the seas, fires, pirates, and all other perils, losses or misfortunes that should come to the hurt or damage of the goods\\nHeld, that overland transit to Providence of oils shipped from Mediterranean ports to Boston or Philadelphia was authorized under the above contract, the water route being greater and more dangerous and comparatively uncommon, all of which must have been known to the company; hence the company was liable for leakage under the policy, although it could not be shown where the leakage took place.\\n(3) Marine Insurance.\\nWhere an insurance company has paid a number of losses under a policy upon proofs similar to the one in the case at bar, it cannot, without any notice until the trial that it would no longer pay upon such proofs, refuse to pay further.\\n(4) Marine Insurance.\\nUnder the above policy the company is not liable for leakage unless the leakage on each barrel has amounted to seven per cent, or upwards; and when it becomes liable at all, it is liable for the whole leakage on each . barrel, without deducting either seven per cent, or two per cent.\\nAssumpsit on a policy of insurance. The facts are fully stated in the opinion.\\nHeard on petition of defendant for new trial, and new trial denied.\", \"word_count\": \"3087\", \"char_count\": \"17906\", \"text\": \"Per Curiam. The defendant's petition for a new trial is denied, and judgment will be entered upon the decision of Mr. Justice Bogers, for the reasons assigned by .him in said decision, which is adopted as the opinion of the court.\\nDecision.\\nRogers, J\\nThe plaintiffs, who are copartners under the firm name of the Phetteplace Olive Oil Importing Company, bring this action to recover for loss by leakage on several cargoes of oil shipped from Marseilles and other Mediterranean ports to them, at Providence, B. I.\\nI find the facts to be that the plaintiffs obtained insurance from the defendant through the latter's_ agents in Providence, Starkweather & Shepley, by policy dated December 28, 1893, which was in form an ordinary marine policy with some additions written in ; that said policy, after giving the name of the defendant company, continued in this wise (the written words of the quotation being italicized, while the printed words are not), viz.: \\\"Phetteplace Olive Oil Co. on account of whom it may concern. To cover all shipments of olive oil consigned to them direct, or to order, or to Bankers, if designed for the control of the assured. In case of loss to be paid in ffinds current in the United States to Brown Brothers & Co., or as interest may appear. Do make insurance and cause to be insured, lost or not lost, at and from port or ports in the Mediterranean Sea to New York ~ Philaclelpihia Boston, direct, or via port or ports and at and thence to Providence ^ Boston ~ Philadelphia, withprivilege of transhipment (including risk of craft to and from the ship or vessel, each craft to be considered a separate risk) on olive oil fto cover leakage amounting to five per cent, on each barrel over ordinary leakage, which is agreed to be two per cent. It is understood and agreed that any claims under the leakage clause are not payable to Brown Brothers, but direct to the assured, upon all kinds of lawful goods and merchandise, laden or to be laden, on board the good steamer or steamers, whereof is master,\\\" &c.; that said policy was continuous until discontinued, and either party could discontinue on giving thirty days' written notice to the other party ; that the premium named in the policy, by indorsement on the back, was eighty cents per hundred dollars insured, but it nowhere appeared on the policy whether this was an extraordinary or increased premium over and above what was ordinarily charged for marine insurance, and the policy provided that premiums were payable monthly in advance; that among the numerous printed provisions contained in the policy there was, under the title Memorandum, the following: \\\"Not liable for particular average on molasses or other liquids, nor for breakage of merchandise unless occasioned by stranding or collision with another vessel ; \\\" that one of the printed provisions in said policy was the following, viz.: \\\"Touching the adventures and perils which the said insurance company is contented to bear, and takes upon itself in this voyage, they are of the seas, fires, pirates, . . . and all the other perils, losses, or misfortunes that have or shall come to the hurt, detriment, or damage of the said goods or merchandise or any part thereof ; \\\" that several cargoes of olive oil, covered by said policy, were shipped from Marseilles and Naples, on the Mediterranean Sea, to the plaintiffs, on which the leakage amounted to more than seven per cent. ; that all of said oil was shipped by steamer to New York, Philadelphia, or Boston ; that some of said oil was forwarded from said American ports to Providence by rail, but how much thereof was so forwarded by, rail did not appear in evidence ; that said oil was shipped in good order at the Mediterranean ports, and that when it arrived in Providence examination showed that more than seven per cent, had leaked out, but where or on what part of the trip, or whether on sea or land, such leakage occurred the proof did not show, neither did it show that the leakage was occasioned by stranding or collision with another vessel, or how it was occasioned; that one of the printed clauses of the policy was as follows, viz. : \\\"Proofs of loss and all bills of expenses must be approved by the agents of the company, if there be one, at or near the place where the loss occurs or the expenses are incurred, or if there be none in the vicinity, by the correspondent of the National Board of Marine Underwriters; and such agent or correspondent must be represented on all surveys; \\\" that when a cargo arrived here, and there was a leakage, the plaintiffs would notify defendant's agents here that there was such a loss, and ask them to send an inspector, if they desired, and then the plaintiffs personally weighed the leaking packages and deducted the weight from the real weight, as shown by the invoice by which the plaintiffs had bought, the balance being the amount of loss, and being computed at the price of the oil at the point of shipment; that that was the only proof of loss furnished, that said defendant's agents made no objection thereto, but paid several losses arising from leakage under this policy upon the statements as made up by the plaintiffs ; that parol evidence was offered by the plaintiffs against the objection of the defendant, which was admitted cle bene, as to the conversations between the plaintiffs and the defendant's agents, of the nature of the insurance desired at the time of taking out the policy, also, that the rate of premium charged was a largely increased rate over the ordinary rate ; that the defendant paid several losses under this policy, that expert evidence was admitted, showing that this form of leakage clause was qualified insurance, and that it was customary in the trade for insurance companies to pay such leakage.\\nu The questions in this case all arise in regard to leakage, and the construction of the policy relating thereto, is, therefore, all-important. Leakage of liquids, especially on a long voyage, may result from various causes. It may result from strictly maritime causes, as from stranding, collision, &c. ; or it may result, without any injury to the ship or cargo, from strictly maritime causes, as by rough weather causing the ship to pitch and roll, thereby causing the barrels or cases containing the liquid to leak; or it may result from the proper vice of the subject-matter : so that ordinary leakage has become a well-known term. It is impossible, in very many cases, to determine just the cause of leakage, but it is a substantial loss, the risk of which some shippers do not care to assume, and so seek protection from insm-ance companies, not only for leakage arising from known strictly maritime causes, but also from any cause (except, of course, from the misconduct of the assured).\\nRelying on the language of the policy merely, the reading of it would incline the court to the opinion that it was not alone a policy against marine risks, but it was also a policy against loss by leakage from whatever cause ai-ising, provided the leakage amounted to seven per cent. The defendant contends that this was a marine policy only, and that it can be treated only as a marine policy. There is nothing in law to prevent this being treated as covering other losses than those arising from marine perils, if the insurers have so agreed. Emerigon says, in the English translation of his work on Insurance, at page 312 : \\\"Though the loss, says the ordonnance, which happens through the proper vice of the subject is not a maritime risk properly called, still nothing prevents the insurers from rendering themselves responsible by a special agreement.\\\"\\nAt the trial the defendant's counsel contended that the language of the policy was so clear, so free from ambiguity, that no doubt could arise as to this policy being against sea perils alone, and objected to parol evidence being admitted. The court admitted such evidence cle bene, as throwing light upon the intent of the parties, and now formally rules in such evidence as admissible.\\nPoland, J., in Lowry et al. v. Adams, 22 Vt. 160, 165, says : \\\" Bor the purpose of ascertaining the intent of the parties in entering into any contract, courts will look at the situation of the parties making it, the subject-matter of the contract, the motives of the parties in entering into it, and the object to be attained by it; and even in cases where the contract is reduced to writing, will allow all these circumstances to he shown by parol evidence, if the intent of the parties upon the face of the contract is doubtful, or the'language used by them will admit of more than one interpretation. When, from the contract itself and all the surrounding circumstances, the true object and intent of the parties has been ascertained, courts will enforce the contract according to that intent, unless there he found in the way some stubborn, inflexible rule of law, absolutely requiring a different determination.\\\" See also Shore v. Wilson, 9 C. & F. 355, 366; Nash v. Towne, 5 Wall. 689; McDonald v. Longbottom, 1 Ellis & Ellis, 977; Goodrich v. Stevens, 5 Lans. 230; Donlin v. Deagling, 80 Ill. 608; Buckmaster v. Jacobs, 27 La. An. 626.\\nThe evidence shows clearly that the intention of the parties was to insure against leakage, if amounting to seven per cent., from whatever cause arising (except, of course, the misconduct of the insured), and that an increased premium was to be, and was, paid therefor; and, hence, it was not necessary for the plaintiffs to show that the leakage was occasioned by stranding or collision with another vessel.\\nThe defendant contends that some of the oil in controversy was conveyed from some of the American ports, where it was landed, to Providence, by rail, and that, inasmuch as it is not known where the leakage took place, it may not have been on a vessel at all; and that, hence, it could not have been intended to be covered by this policy, unless shown to have been suffered on shipboard.\\nThat depends, however, altogether upon the contract and understanding between the parties, and the course of business. The distance between Naples and New York, Philadelphia, or Boston is between 3,000 and 4,000 miles, and between Marseilles and New York, Philadelphia, or Boston is but a few hundred miles less, and must necessarily be accomplished by water, while the distance from Boston to Providence by land is but forty-three miles, the distance by water being several times as far, and over dangerous waters, there being no regular water line between the two places ; so, also, the distance from Philadelphia to Providence is but a small percentage of the distance from Naples or Marseilles to Providence, and that water carriage between Philadelphia and Providence was comparatively uncommon, and all this must have been known to the defendant. The case at bar, so far as the overland transit is concerned, seems to me to be analogous to the case of Rodocanachi et al. v. Elliott, L. R. 8 C. P. 649, in this, that, in that case, as well as in this case, upon a marine policy, some overland transit was authorized.\\nParol evidence \\u2014 as to how the parties had treated this policy, and the risk covered by it, in other words what construction the parties themselves had put upon it \\u2014 was offered by the plaintiffs, and was admitted de bene; and as to such testimony, as well as to the other parol evidence offered at the trial, the court now rules it to have been admissible.\\nIn Davis v. Shafer, 50 Fed. Rep. 764, 768, Phillips, J., says : ' ' Where the contract in question employs words or terms of doubtful or ambiguous meaning and application, the meaning and application given them by the parties to the contract, and acted on by them, should prevail over any technical, grammatical, or logical interpretation of the words and phrases. But where the contract is free from ambiguity, and ' its meaning is clear in the eye of the law,' such evidence is clearly incompetent.\\\" See also R. R. Co. v. Trimble, 10 Wall. 367; Michael v. St. L. M. F. Ins. Co., 17 Mo. Ap. 23, 26; St. Paul, &c., R. R. Co. v. Blackmar, 44 Minn. 514, 518.\\nIt is in evidence, in this case, that the defendant has paid losses for leakage under the policy under consideration upon like proofs, and made up in the same manner, as were the proofs as to the losses it now refuses to pay.\\nThe defendant, having paid a number of losses under this policy, cannot now, in my opinion, without any notice, until upon the trial, that the procedure it had previously followed was unsatisfactory, refuse to pay further.\\nA a- to the amount of damage, it seems to me that the defendant is not liable to pay for leakage unless the leakage on each barrel on which leakage is claimed has amounted to seven per cent, or upwards ; and when it becomes liable at all, then it becomes liable for the whole leakage on such barrel, without deducting' either seven per cent, or two per cent. The policy reads: \\\"To cover leakage amounting to five per cent, on each barrel over ordinary leakage, which it is agreed to be two per cent.\\\" The policy does not say that ordinary leakage was to be first deducted and only the extraordinary leakage paid for, hut it seems to me to indicate that until seven per cent, leakage, or three and one-half times as much as ordinary leakage, has taken place, the defendant shall not be liable ; hut when the. seven per cent, leakage has occurred, then the defendant is to be liable' for the whole leakage; otherwise it would have been very easy, as in Indemnity M. M. Assur. Co. v. United Oil Co., 88 Fed. Rep. 315, to have stated \\\"that one-half of one per cent, of the quantity laden shall be-first deducted as ordinary leakage, the excess of such one-half of one per cent, to- be considered as extraordinary leakage, loss to be paid,.\\\" etc. In the case at bar two per cent., instead of one-half of' one per cent., was mentioned as ordinary leakage. Both parties claim the last above-named case to favor their respective contentions as to the amount to be paid, and it is not entirely clear exactly what the judge intended.\\nMatteson & Healy, for plaintiffs.\\nWilson & Jenckes and William J. Brown, for defendant.\\nIn the case of Donnell et al. v. Columbian Ins. Co., 2 Sumner, 366, involving the construction of a clause in a marine policy, that the underwriters should not be liable for any partial loss on other goods, or on the vessel and freight unless it amounts to five per cent., etc., Story, J., at page 382, says: \\\"All the commentators upon this article agree that, when the underwriters are liable at all under this clause, they are liable for the full amount of the average without deduction.\\\" Though the foregoing relates to average and not to leakage, yet the limiting clause seems to be similar in character to the one in question.\\nThe parties in the suit at bar have put their own'construction as to the amount to be paid, by the defendant's paying and the plaintiffs' receiving the full amount of the leakage where such leakage was more than seven per cent., and that seems to me to be the proper construction.\\nThe finding and decision of the court is that the defendant did promise in manner and form as the plaintiffs have declared against it, and damages are assessed in the sum of $1,064.24, with interest thereon from September 7, 1895, amounting to $347.75, making the sum of $1,411.99; for which last-mentioned sum the plaintiffs are entitled'to judgment against the defendant, together with costs.\"}"

ri/4847072.json

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+"{\"id\": \"4847072\", \"name\": \"Peter F. Carr vs. American Locomotive Co.\", \"name_abbreviation\": \"Carr v. American Locomotive Co.\", \"decision_date\": \"1910-07-12\", \"docket_number\": \"\", \"first_page\": \"234\", \"last_page\": \"252\", \"citations\": \"31 R.I. 234\", \"volume\": \"31\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T23:47:46.139991+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Dubois, C. J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ~\", \"parties\": \"Peter F. Carr vs. American Locomotive Co.\", \"head_matter\": \"Peter F. Carr vs. American Locomotive Co.\\nJULY 12, 1910.\\nPresent: Dubois, C. J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ~\\n(1) Bills of Exception by Both Parties.\\nWhere a plaintiff has brought his bill of exceptions to the decision of the Superior Court, granting a motion for a new trial, the defendant may properly file his bill of exceptions to rulings, etc., so that, if the court sustain the exceptions of plaintiff, it may consider defendant's exceptions, and, if they constitute reversible error, remit the case for a new trial.\\n(2) Concurring Verdicts. New Trial.\\nAfter three concurring verdicts, upon conflicting evidence, the court, having twice remanded the case for a new trial, and having given sufficient opportunity for a fair determination of the disputed questions, will not longer interfere with the finding of the jury, where there has been no error of law-which affects the verdict.\\n(3) Concurring Verdicts. Disapproval of Trial Judge.\\nThe doctrine of concurring verdicts is superior to the rule in Wilcox v. B. I. Co., 29 It. I. 292, as to the force to be given the decision of the trial judge in passing upon motion for new trial.\\n(4) Evidence.\\n\\u201c Q. Have you ever known of an operator being injured in operating the furnace before?\\u201d was properly ruled out, since the furnace might be defective, and a part blow out before, because of defects, and the operator at the time be uninjured.\\n(5) Master and Servant. Defective Appliances.\\nIn an action for injury caused by the blowing out of a valve stem, the facts with regard to the condition'of the stem which plaintiff actually knew was all the knowledge he was required to have, and he was\\u2019not required to inform himself as to the experience of other workmen about the furnace. He was under no duty to inspect the mechanism where his duties did not require or permit him to withdraw the stem and examine its threads.\\nBlodgett, J., dissents.\\nTrespass on the Case for negligence.\\nHeard on exceptions of plaintiff, and sustained.\", \"word_count\": \"7247\", \"char_count\": \"40939\", \"text\": \"Sweetland, J.\\nThis is an action of trespass on the case\\nfor damages for personal injuries resulting from an accident in the shop of the defendant company in June 28th, 1902. The plaintiff was at that time in the employ of the defendant, in said shop. The plaintiff had been engaged in such employment 'for several months prior to the accident, heating rivets for the boilermakers in defendant's boiler shop in certain rivet-heaters provided by the defendant for that purpose. At the time of the accident the plaintiff was working at a rivet-heater known as an oil-heater, provided with a burner adapted for the use of oil as a fuel when supplied under .pressure, so that oil was burned as it emerged in the form of spray from the burner and entered the furnace of the rivet-heater. This burner consisted of a combination of three valves fitted in an upright supply pipe at a convenient point opposite the opening in the furnace of the rivet-heater so as to permit the projection of the flame produced by the burning oil under pressure through said opening into the furnace. The top valve controlled the supply of air in the pipe carried under pressure to the burner for the purpose of producing the spray of oil desired for combustion. The bottom valve controlled the supply of oil in the pipe also forced under pressure to the burner.' The middle valve controlled the flow of the mingled oil and air, meeting in the burner, and regulated the supply. The burner was provided with a nozzle or nose several inches in length opposite this middle valve and extending into the furnace itself. The middle or burner valve was equipped with a threaded valve-stem adapted to screw into the body of the valve. This valve-stem, if in good condition, when inserted into the body of the valve, required about nine turns to be screwed to its seat in the valve. This valve-stem could be wholly unscrewed and withdrawn from the valve and was not provided with any checking or holding device to prevent its being so unscrewed and withdrawn. The plaintiff claims that the burner valve-stem upon the rivet-heater, at which he was working at the time of the accident, had become worn in its threads and loose in the valve; that it had been subjected to abuse and injury while it was being repaired and its handle replaced some time before the accident; that it was dangerously loose in the valve, and that when opened a very few turns, it was liable to be blown out by the pressure of the oil and air. The plaintiff alleges that this unsafe condition of the valve-stem was known to the defendant, but was unknown to him. The plaintiff claims that on the morning of the accident he began work by starting a fire in the oil-heater, in the usual way; that after the fire had been started he undertook to regulate the fire and the flow of oil by turning this middle valve as usual; that he turned the valve-stem two or three turns, when the stem blew out past him and fell to the floor some few feet away from the burner; that a stream of oil under pressure immediately followed the valve-stem through the opening in the valve, striking against his body with such force that portions of the oil rebounded, in the form of spray into the furnace fire, whereby it became ignited, and the flames were thus communicated to the oil, then playing upon him from the burner, so that he was enveloped in flames, his clothing took fire and his face, neck, chest, and arms were badly burned. The case was tried before a justice of the Superior Court and a jury. At the trial, the defendant produced in court as an exhibit, marked defendant's exhibit A., a combination of three valves fitted to a pipe, which the defendant claims were the same pipe and valves which were upon the rivet-heater, operated by the plaintiff, at the time of the accident, and which the defendant had removed, shortly after the accident, and had preserved to be offered as an exhibit at the trial. The plaintiff denied that the stem in the middle, or burner, valve in Exhibit A, was the same burner valve-stem that was in the appliance at the time of the accident. There can be no question that the burner valve-stem in exhibit A. is in good condition. The identity, therefore, of the burner valve-stem produced in court became a most important issue before the jury. At the trial the jury returned a verdict for the plaintiff in the sum of $22,895. In addition to its general verdict, the jury returned a special verdict upon certain issues submitted to it. These special issues, with the jury's findings thereon, are as follows:\\n1. Was the valve-stem produced in court as a part of the burner-valve in question, and forming a part of defendant's exhibit A, the stem operated by the plaintiff at the time of the accident? No.\\nIf the answer to question one (1) be no, then the jury should answer the following questions:\\n2'. Was the thread on the stem of the burner-valve operated by the plaintiff at the time of the accident, then in good working condition? No.\\n3. Was the thread in the body of the burner-valve operated by the plaintiff at the time of the accident, then in good working condition? Yes.\\n4. Did the middle valve-stem in the apparatus operated by the plaintiff at the time of the accident blow out of the valve when operated two turns, while being so operated by him? Yes.\\n5. Were the agents of the defendant company in charge of the boiler-shop notified that the middle valve-stem used in said apparatus had blown out of the valve while in operation prior to the accident? Yes.\\nThe defendant duly filed and prosecuted its motion for a new trial in the Superior Court upon the grounds that the general verdict of the jury and the first, second, fourth, and fifth special findings of the jury were against the evidence and the weight thereof, and that the damages awarded by the jury were excessive. The justice presiding at the trial, after hearing the motion for a new trial, decided that on the issue whether the middle stem of exhibit A. was or not the stem that was on the apparatus at the time of the accident, the weight of the testimony was with the defendant and granted the motion for new trial. The case is before this court upon the plaintiff's exception to the decision of the Superior Court granting the motion for new trial. The defendant has also filed a bill of its exceptions, taken at the trial, to various rulings and instructions of the justice presiding. The defendant claims that these rulings and instructions to which it has taken exception constitute reversible error and entitle it to a new trial, and urges that, if this court should for any reason sustain the plaintiff's bill of exceptions, it should not sustain the verdict of the jury, but should order a new trial. We are of the opinion that the procedure of the defendant is proper, and that if the plaintiff's exceptions are sustained, the court should then consider the defendant's exceptions, taken at the trial; and if the defendant's exceptions constitute reversible error, the case should be remitted to the Superior Court for a new trial.\\nThis case has been tried four times. The first trial was in the Common Pleas Division of the Supreme Court, and resulted in a disagreement of the jury. The second trial was in the Common Pleas Division of the Supreme Court, and the jury returned a verdict for the plaintiff for $18,000, with a special finding that exhibit A. includes the identical burner-valve and stem which were operated by the plaintiff at- the time of the accident. Upon petition, the Appellate Division of the Supreme Court granted a new trial (Carr vs. American Locomotive Co., 26 R. I. 180). Upon the establishment of the Superior Court this case was transferred to that court, and the last two trials have been in that court. The third trial resulted in a verdict for the plaintiff for $20,000, with a special finding that the burner valve-stem forming a part of exhibit A. was not the stem operated by the plaintiff at the time of the accident. The justice who presided at that trial denied the defendant's motion for a new trial. Upon exception to that decision this court sustained the exception and ordered a new trial (Carr v. American Locomotive Co., 29 R. I. 276). A fourth and last trial was had with the result, herein stated, of a verdict of $22,895 for the plaintiff, with a special finding by the jury that the burner valve-stem forming a part of exhibit A; was not the stem operated by the plaintiff at the time of the accident.\\nIt therefore appears that there have been three concurring verdicts in favor of the plaintiff. At the time of the first verdict there was no procedure in this State permitting a review of the jury's finding by the justice presiding at the trial. After the second verdict the justice presiding, acting under such a procedure, after hearing the testimony, denied the motion for a new trial and approved the verdict. The justice presiding at the last trial has decided that the weight of the testimony is with the defendant. After the first and second verdicts this court reviewed the testimony and decided that in its opinion the evidence preponderated in favor of the defendant, and that there should be new trials. And now, after another jury has found in favor of the plaintiff's claims, this court is asked again to disregard the finding of the jury and to send the case again for another trial before another jury.\\nFrom the record before us it does not appear whether at the first two trials the justices were asked to direct verdicts in favor of the defendant; but in each instance the case was submitted to the jury. At the third trial a motion was made that the jury be directed to return a verdict for the defendant. The motion was denied, and this court said in Carr v. American Locomotive Co., 29 R.. I. at 290: \\\"The forty-sixth exception was taken to the court's denial of a motion to direct a verdict for the defendant upon all the testimony. The evidence was conflicting and was properly left to the jury.\\\" At the last trial the justice presiding refused to direct a verdict in the defendant's favor. We have carefully read and considered the transcript of the testimony given at the last trial. The plaintiff has produced the testimony of seven new witnesses in support of his claim as to the defendant's negligence and the identity of the middle stem on exhibit A. The case for the plaintiff is much stronger than at the former trial. Upon this testimony, to order judgment for the def\\u00e9ndant would be highly improper. If the case was before us for the first time, we should hesitate to disturb the verdict of the jury but for the decision of the justice presiding at the trial, whose decision will in ordinary cases be given much persuasive force by this court in appellate proceedings. Thus it has appeared to every judicial mind which has considered the testimony in this case that the deductions which may fairly be made upon the evidence are conflicting, that there is substantial evidence to support a verdict for the plaintiff, and that it is a case in which, under the constitution of this State, the determination of the facts must be made by a jury. The effect of the two opinions of this court in granting new trials was not that the verdicts in the plaintiff's favor were entirely unjustified, for in that case the court would have exercised its authority and ordered a judgment for the defendant. The opinions indicate, rather, that the court was not satisfied that justice had been done, that in its opinion another opportunity should be given to the parties to present further testimony if they were able, and that the court might have the benefit of the finding of another jury upon the issues. In McCann v. New York, etc., 73 N. Y. App. Div. 305, the court, in considering the effect of concurring verdicts, said: \\\" These issues of fact must be ultimately decided by the jury. The single question presented, therefore, is whether this court can or should accomplish indirectly by setting aside the verdict what it could not accomplish directly, viz., prevent a recovery by the plaintiff. . . . While the trial court and the Appellate Division should not hesitate to set aside a verdict as against the weight of evidence, where the ends of justice appear to require a new trial, yet when it comes to setting aside on this ground alone three verdicts rendered in' an ordinary action possessing no extraordinary features, the court should hesitate lest it usurp the functions of the jury.\\\" In some States it has been provided by statute that there shall not be granted in any case, to the same party, more than two new trials on the ground that the verdict is contrary to the evidence, or that it is not sufficiently supported by the evidence. Thus fixing in those States the rule as to the effect of concurring verdicts when there has been no error of law. In the absence of such statutory provision the doctrine has been generally accepted, by the courts of the various States, that, in cases where the evidence is conflicting and a judgment cannot be directed, and successive juries have returned a verdict for the same party, there comes a time when the court upon the facts will no longer oppose their judgment to that of the jury, but will bring long-continued litigation to a close. This doctrine has not been accepted in a few cases and by some eminent jurists in dissenting opinions, and the position has been taken, as in the dissenting opinion in McCann v. New York, &c. 73 N. Y. App. Div. 305: \\\"A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception, prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have 'several times declared that the plaintiff ought not to recover, and yet we are about to permit a recovery, because the jury forsooth have, for the fourth time, committed the same wrong. The .law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Civ. Proc. Sec. 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.\\\" This position presupposes in the judicial mind an infallibility in the determination of conflicting issues of fact which few courts would claim for themselves. If it is unquestioned in the mind of the court that a wrong has been committed by the verdict of the jury, surely the verdict should not be allowed to stand. The law provides a method by which such wrong can be corrected, and, regardless of the jury's verdict, a judgment should be ordered for the other party. That an appellate court has twice remanded a cause for a new trial indicates that the evidence of a wrong committed is not indubitable. The court may have an opinion or a suspicion that an injustice has been done, but it is unable to so declare with certainty. Courts recognize that it is not given to human tribunals to determine with the exactness of mathematical demonstration what is the true and just conclusion upon conflicting facts, with regard to which there is the opposing testimony of witnesses, as to whose reliability and good faith different minds may reasonably disagree. Cases involving such conflicting statements of fact must of necessity be determined in the courts, ultimately by the finding of a jury, but the true solution can not be found with demonstrative certainty. Hence an appellate court, having given sufficient opportunity for a fair determination of such disputed questions, will not longer interfere with the finding of the jury. To take this course is not to weakly permit or to approve the doing of a wrong in the name of justice, but is to recognize the proper functions of the court and the jury, and, after exercising due caution to prevent injustice, places the determination of disputed questions of fact in the tribunal provided by our constitution and laws. This doctrine has been recognized by this court. In Steadman v. Wilbur, 7 It. I. 481, Ames, C. J., said: \\\"After two full trials in this court by impartial juries, in which verdicts were rendered for the defendants, we certainly shall not open this case for a new trial, without strong proof that justice imperatively demands it. We cannot say, looking at the evidence, direct and circumstan tial, although, not as full as might be desired, that the jury-must have been mistaken or partial to have rendered the verdict that they did. We do not see that this litigation can be rightfully permitted to go any farther; and upon all the grounds, dismiss this motion for a new trial, with costs.\\\" In Bounds v. Humes, 7 R. I. 535, the court found that the plaintiff had not only failed to prove the allegations of his declaration but had proved the precise contrary of it, and the court was obliged to set .aside a second verdict in the plaintiff's favor, and said: \\\" It is with reluctance that the court grants a new trial on the ground that the verdict is against the evidence, where the verdict is the second which has been obtained by the prevailing party. In the present case, however, we think that our duty leaves us no choice.\\\" The court in that case recognized the exception to the rule as to concurring verdicts afterwards followed in Burnham v. N. Y., Prov. & Bost. R. R., 17 R. I. 544 and 18 R. I. 494. That where it conclusively appears that the verdict is wrong the court will not permit it to stand although it may be the second or third successive verdict for the same party; In McNeil v. Lyons, 22 R. I. 7, the court said: \\\"In view of three .concurring verdicts for the plaintiff, the court must assume, even though it may not be satisfied, that the verdict is not against the evidence.\\\"\\n\\\"In Burnham v. N. Y., Prov. & Bost. R. R. Co., 17 R. I. 544, and 18 R. I. 494, this court set aside three concurring verdicts, but for reasons which do not apply to this case. In that case, in the opinion of the majority of the court, it conclusively appeared that the engine which Burnham was running, comparing its admitted rate of speed and the distance to be covered, must have been beyond the electric signal, so that he could have seen it if he had been looking. In this case there is no such degree of certainty.\\\"'\\nThe decisions in most of the other States are in accord with ours. In Brown v. Paterson Paper Co., 69 N. J. L. 474, a former verdict had been set aside because against the weight of the evidence. The court said: \\\"While in this state there is no statute or rule established by decisions, limiting the number of times this court may set aside a verdict and grant a new trial because it is against the weight of the evidence, still a second concurring verdict upon the same state of facts or on slightly varying evidence should cause the court to hesitate before granting a third trial. . . . There is evidence from which the pry might have found both these facts the other way, but, as upon both trials in this cause the jury have found these facts in favor of the plaintiff, we think, under the circumstances of the case the rule to show cause should be discharged.\\\" In Hazzard v. Mayor, &c., 77 Ga. 54, the opinion of the court was: \\\"The questions of fact being the peculiar province of the jury, and that body having three times, by three several and different representatives of the jury box each time, found for the plaintiff, and the last time a considerate and reasonable verdict, the law, which invests that body of men of the vicinage with the judgment over facts, as it does the presiding judge over law, will not permit this court in the last resort to allow the judge to control the jury ad infinitum upon facts, where there is evidence (though, in the judgment of that coyrt and this, it be comparatively weak) in which repeated findings may rest; because to allow this will be to allow the judge to oust the jury of its constitutional prerogatives, and thus to unite in one, two separate jurisdictional powers clothed by the constitution and laws with distinct functions.\\\" Keans v. Jones, 77 Ga. 90; Harrigan v. Railway Co. 84 Ga. 793. In the later Georgia case, Central Railroad Co. v. Kent, 91 Ga. 687, applying the rule as in Burnham v. N. Y., Prov. & Bost. R. R. supra, a majority of the court, after a third verdict for the plaintiff, refused to affirm it on the ground that there was no evidence to support it, and in that view of the case directed that the plaintiff's action be dismissed. In Handly v. Call, 30 Me. 9, a verdict obtained for the plaintiff at a former trial'had been set aside; the court said: \\\"Another jury has come to the same conclusion. The opinion of the court cannot be substituted for that of the jury.\\\" Hyde v. Haak, 132 Mich. 364; Joyce v. Charleston Ice Manuf'g Co., 50 Fed. 371; Frost v. Brown, 2 Bay (S. C.), 139; Fowler v. Attica Fire Ins. Co., 7 Wend. 270. In McCann v. New York, 73 N. Y. App. Div. 305, the court said: \\\"A sufficient number of trials has now been granted to remove any suspicion of the existence of bias, passion, prejudice or corruption, and it becomes a mere matter of judgment on questions of: fact. The administration of jurisprudence where trial by jury is preserved goes upon the theory that the judgment of twelve laymen upon a question of fact is safer than that of a smaller body of judges who are more removed from the people. An unwarranted exercise of this power to set aside verdicts as against the weight of the evidence would sooner or later bring the judiciary into disrepute. We think any further interference with the verdict of the jury in this case would be unauthorized and unjustified.\\\"\\nIn the case at bar, we are of the opinion that the time has now arrived when this rule with regard to concurring verdicts should be applied, and if there has been no error of law, occurring at the trial, which affects the jury's verdict, that verdict should be allowed to stand. This conclusion as to the force and effect of the three successive verdicts for the plaintiff, notwithstanding the decision of the justice of the Superior Court, is not in disregard of the rule in Wilcox v. Rhode Island Co., 29 R. I. 292. The doctrine as to the force of concurring verdicts is superior to the rule in the Wilcox case. When the time comes in any case for the application of that doctrine it will be applied, not only in disregard of the decision of the justice of the Superior Court, but also in disregard of our own former conclusions in the case.\\nIt now becomes necessary to examine the defendant's exceptions taken at the trial. Of these we shall consider the fifteenth, twentieth, twenty-third, twenty-fourth, twenty-fifth, and twenty-seventh, as they are the only ones now pressed by the defendant before this court.\\nThe fifteenth is: \\\"The presiding justice erred in refusing to permit one of the defendant's witnesses to answer the following question propounded by defendant's counsel: 'Have you ever known of an operator being injured in operating the furnace before? ' to which exception was taken.\\\" It is quite immaterial if the witness had known of no operator being injured before while operating the furnace. The furnace might be defective and the stem blown out of the valve many times before, because of its defective condition, and yet the operator at the time of such occurrences be entirely uninjured.\\nThe twentieth exception is: \\\" At the conclusion of the testimony the defendant requested the court to instruct the jury as follows: 'X. If you find that the valve with its stem was defective in not having any engagement between the threads on the stem and in the valve and would blow out when it was two turns removed from the seat, and that the plaintiff knew or might have known of such defective condition by the exercise of reasonable care, the verdict must be for the defendant.' The court refused the request so made, to which exception was taken.\\\" The justice presiding charged fully that the plaintiff could not recover if he knew of the defective condition of the stem. The defendant insists upon the rule laid down by this court that \\\"a workman is bound by such knowledge as he ought to have as well as by what he actually has.\\\" That rule has no application to the facts of this case. The facts with regard to the condition of this stem which the plaintiff actually knew is all the knowledge which the law required him to have. He was not required to inform himself as to the experience of other workmen about this furnace. His duties did not require or permit him to withdraw the stem and examine its threads. He was under no duty to inspect the mechanism.\\nThe tw\\u00e9nty-third, twenty-fourth, twenty-fifth, and twenty-seventh exceptions are to instructions given to the jury upon the request of the plaintiff. We find no error in those instructions. They are in accord with opinions of this court previously rendered. The defendant takes nothing by its exceptions.\\nThe defendant does not press before us the question of excessive damages, which was one of the grounds for its motion for a new trial before the Superior Court. We have, however, considered the question, and although the amount awarded by the jury is large, in view of the very serious permanent injury to the plaintiff, we can not say that it is excessive.\\nThe plaintiff's exceptions are sustained, and the case is remitted to the Superior Court with direction to enter judgment upon the verdict.\"}"

ri/4890638.json

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+"{\"id\": \"4890638\", \"name\": \"Frank G. Myers, Exr., vs. Williston A. Cady\", \"name_abbreviation\": \"Myers v. Cady\", \"decision_date\": \"1901-03-29\", \"docket_number\": \"\", \"first_page\": \"549\", \"last_page\": \"549\", \"citations\": \"22 R.I. 549\", \"volume\": \"22\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:11:05.397795+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present : Stiness, C. J., Tillinghast and Rogers, JJ.\", \"parties\": \"Frank G. Myers, Exr., vs. Williston A. Cady.\", \"head_matter\": \"Frank G. Myers, Exr., vs. Williston A. Cady.\\nPROVIDENCE\\nMARCH 29, 1901.\\nPresent : Stiness, C. J., Tillinghast and Rogers, JJ.\\n<1) Wills. Powers. Executors and Administrators.\\nTestamentary provision as follows : \\u201cI desire that my home estate be sold within a year after my decease, provided a suitable price can be obtained for the same \\u201d:\\u2014\\nHeld, that the expression of desire was equivalent to a direction to sell, the purpose of the limitation of time being to prevent a sacrifice of the estate, and that the executor had authority to sell after the expiration of the year.\\nBill in Equity for specific performance. The facts appear in the opinion.\\nHeard on bill and answer, and relief granted.\\nJohn Palmer, for complainant.\\nE. C. Pierce for respondent.\", \"word_count\": \"317\", \"char_count\": \"1854\", \"text\": \"Per Curiam.\\nThe will of Agnes McWilliams said: \\\"I desire that my home estate on Narragansett boulevard in Edgewood, town of Cranston, State of Rhode Island, be sold within a year after my decease, provided a suitable price can be obtained for the same.\\\" It then provided that the money derived therefrom should be added to what she had, and that the whole should be paid to designated legatees.\\nThe question raised is whether the estate can be sold after the expiration of the year. It is perfectly clear from the will that the estate was to be sold. The will contained no residuary clause, except by providing that each of the legatees should be entitled to receive a proportional part of the surplus. The expression of desire was equivalent to a direction to sell. The limitation of time was dependent upon obtaining a suitable price. It evidently meant that while she desired a speedy sale she did not want the estate sacrificed by a sale before a suitable price could be obtained. We think, therefore, that the executor has authority to sell and is entitled to a decree for specific performance.\"}"

ri/4892746.json

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+"{\"id\": \"4892746\", \"name\": \"Albert Walton vs. Joseph Frost\", \"name_abbreviation\": \"Walton v. Frost\", \"decision_date\": \"1900-06-09\", \"docket_number\": \"\", \"first_page\": \"157\", \"last_page\": \"157\", \"citations\": \"22 R.I. 157\", \"volume\": \"22\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:11:05.397795+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Stiness, O. J., Tillingliast, and Rogers, JJ.\", \"parties\": \"Albert Walton vs. Joseph Frost.\", \"head_matter\": \"Albert Walton vs. Joseph Frost.\\nPROVIDENCE\\nJUNE 9, 1900.\\nPresent: Stiness, O. J., Tillingliast, and Rogers, JJ.\\n(1) Slander. Words AetionaMe per se.\\nIn an action, for slander, tlie statement \\u201cI will go tell tlie superintendent and overseer about your taking that sleeve-lining out of the mill \\u201d is not actionable per se, it not necessarily implying' larceny. To make the words a foundation for an action of slander, facts must be set forth, in a colloquium, which would show that the words could only have been understood to apply to a felonious taking.\\nTrespass on the Case for slander. The declaration charged the defendant with uttering the words concerning the plaintiff: i\\u00a3I will go tell the superintendent and overseer about your taking that sleeve-lining out of the mill,\\u201d meaning and intending that the plaintiff stole certain sleeve-lining out of the mill where he was employed.\\nHeard on demurrer to declaration, and demurrer sustained.\\nThomas F. Vance, for plaintiff.\\nLellcm J. Tuck, for defendant.\", \"word_count\": \"307\", \"char_count\": \"1819\", \"text\": \"Per Curiam.\\nThe declaration in this case, which is an action for slander, does not set out words which are actionable per se. They were, in substance, that the defendant would tell the superintendent about the plaintiff's taking sleeve-lining out of the mill. These words might only refer to a violation of the rules of the mill. They do not necessarily imply larceny. To make the words a foundation for an action of slander, facts must be set forth, in a colloquium, which would show that the words spoken could only have been understood to apply to a felonious taking. Richmond v. Loeb, 19 R. I. 120; Blake v. Smith, 19 R. I. 476, 481.\\nThe cases relied on by the plaintiff are those where the words were actionable per se, or where they were explained by a colloquium.\\nDemurrer sustained, and case remitted.\"}"

ri/4925173.json

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+"{\"id\": \"4925173\", \"name\": \"Smith & Thayer Co. vs. John A. Arnold\", \"name_abbreviation\": \"Smith & Thayer Co. v. Arnold\", \"decision_date\": \"1915-04-09\", \"docket_number\": \"\", \"first_page\": \"512\", \"last_page\": \"526\", \"citations\": \"37 R.I. 512\", \"volume\": \"37\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:11:25.695094+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.\", \"parties\": \"Smith & Thayer Co. vs. John A. Arnold.\", \"head_matter\": \"Smith & Thayer Co. vs. John A. Arnold.\\nAPRIL 9, 1915.\\nPresent: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.\\n(1) Corporations. Director\\u2019s Liability.\\nUnder Gen. Laws, 1909, cap. 214, \\u00a7 12, relating to manufacturing corporations, providing that the whole amount of the debts which any such corporation shall at any time owe shall not exceed the amount of its capital stock actually p^id in, and that in case of any excess the directors under whose administration it shall happen shall be jointly and severally liable, to the extent of such excess for all the debts of the company then existing and for all that shall be contracted as long as they shall respectively continue in office and until the debts shall be reduced to the amount of the capital stock of such company paid in, and under U. S. Bankruptcy Act, 1898 Section 7 (8) requiring a bankrupt to file a schedule of the property and a list of his creditors showing the amount due each of them, such schedule furnishes prima facie evidence of the amount of the debts, as of the date of the adjudication in the case of involuntary bankrupts, and such schedule was admissible in evidence in an action to enforce the statutory liability of a director; and if there were any debts in such schedule, arising otherwise than by contract or only contingently and not absolutely due, or that should be excluded from consideration, it was the duty of defendant to offer that fact by way of defence.\\n(\\u00a3) Corporations. Director\\u2019s Liability.\\nWhere in an action to enforce a director\\u2019s liability, under Gen. Laws, 1909, cap. 214, \\u00a7 12, a plaintiff proves by the admission of the corporation by its bankruptcy schedules the whole amount of the debts owed by the corpora- ' tion at the date of adjudication, it is not necessary for him to negative the existence of any possible items of indebtedness which should not legally be considered, but this is a matter of defence within the means of knowledge of defendant.\\n(3) Corporations. Director\\u2019s Liability.\\nIn an action to enforce a director\\u2019s liability under Gen. Laws, 1909, cap. 214, \\u00a7 12, where the plaintiff has proved the bankruptcy of the corporation and the amount of debts owed, he is entitled to a prima facie presumption that this state of things\\u2019continued and if, in fact, the excess of debts had been paid so as to exonerate defendant, it was a matter for defendant to prove.\\n(4) Corporations. Director\\u2019s Liability.\\nIn an action to enforce a director\\u2019s liability under Gen. Laws, 1909, cap. 214, \\u00a7 12, where defendant was also president of the company and a stockholder for several years, down to the time of its failure, and actively interested in its affairs, it will be presumed in the absence of denial on the part of defendant that he was cognizant of the proceedings at the time of the failure; and it will not be presumed that he had no knowledge of the contents of the bankruptcy schedules.\\n(6) Corporations. Director\\u2019s Liability.\\nIn an action to enforce a director\\u2019s liability under Gen. Laws, 1909, cap. 214, '\\u00a7 12, a note of the corporation secured by mortgage on real estate, was as much a debt owed by the company as any other debt, and it was immaterial that the company was solvent when the note was made and that it had then and later sufficient assets over and above the real estate mortgaged so that its capital stock fund was not impaired, and so that it could then have paid this note out of surplus assets, in view of the fact that it did not pay the note, and that after the adjudication of the company in bankruptcy its debts, including this note, had been increased in excess of its paid-in capital.\\n(6) Corporations. Director\\u2019s Inability.\\nWhere after an adjudication in bankruptcy a mortgage on real estate which secured a note for $4,000 was foreclosed, and at the time of the sale there were no surplus assets of the corporation, but its entire property in liquidation paid only a- percentage on its indebtedness, the amount for which the real estate was sold cannot be considered as a reduction of \\u201cthe amount of debts owed\\u201d by the corporation, in excess of its paid-in capital stock, but such amount stands on the same footing as payments made by the trustee in bankruptcy in liquidation of the bankrupt estate, and is not to be credited for the use of a director to reduce his liability under Gen. Laws, 1909, cap. 214, \\u00a7 12.\\nTrespass on the Case under Gen. Laws, Cap. 214, Section 12.\\nHeard *on exceptions of defendant and overruled.\", \"word_count\": \"5197\", \"char_count\": \"29828\", \"text\": \"Parkhurst, J.\\nThis -is an action of the case brought by the plaintiff, a creditor of the Pawtucket Steam & Gas Pipe Company, a Rhode Island corporation, to enforce a certain statutory liability to pay the plaintiff's claim alleged to have been incurred by the defendant as a director of said company under the provisions of Pub. St. R. I. 1882, Chap. 155, reenacted as Gen. Laws, R. I. 1896, Chap. 180, and Gen. Laws, R. I. 1909, Chap. 214.\\nThe declaration originally contained three counts, but only the first need be considered, the other two having been withdrawn by agreement. This first count seeks to impose upon the defendant a director's liability on the ground that the debts of the corporation were permitted to exceed the amount of its capital stock paid in, under the sections of the above-mentioned statute reading as follows:\\n\\\"The whole amount of the debts which any such corporation shall at any time owe shall not exceed the amount of its capital stock actually paid in; and in case of any excess, the directors under whose administration it shall happen shall be jointly and severally liable, to the extent of such excess, for all the debts of the company then existing, and for all that shall be contracted as long as they shall respectively continue in office, and until the debts shall be reduced to the amount of the capital stock of such company paid in.\\n\\\"Any director who shall be absent at the time of contracting any debt contrary to the foregoing provisions, or who shall object thereto, may exempt himself from said liability by forthwith giving notice of the fact to the stockholders at a meeting which he may call for that purpose. \\\"\\n(Pub. St. R. I. 1882, Chap. 155, \\u00a7 15, 16.)\\n(Gen. Laws, R. I. 1896, Chap. 180, \\u00a7 15, 16.)\\n(Gen. Laws, R. I. 1909, Chap. 214, \\u00a7 12, 13.)\\nTo this count the defendant pleaded the general issue, and a special plea which was subsequently withdrawn.\\nThe case was heard on the general issue before Mr. Justice Sweeney and a jury on April 29 and 30, 1914. For the purposes of the trial it was admitted that the corporation was incorporated under and amenable to the statutes as set forth in the declaration; that John A. Arnold was a director thereof from July 24, 1903, to May 4, 1907; and that it issued its capital stock as follows:\\nPreferred Stock, 107 m shares, par value....... $10,727 00\\nCommon Stock, 527 shares, par value......... 52,700 00\\nTotal stock issued..................... $63,427 00\\nIt was further admitted that on July 22, 1913, subsequent to the commencement of this action, \\\"the sum of $1,575.59 was paid to the J. L. Mott Iron Works in full satisfaction of the balance of its claim as a creditor of the Pawtucket Steam & Gas Pipe Company, \\\" and that said sum should be applied to reduce by that amount any liability of the defendant at present existing, because of the alleged excess of the corporation's indebtedness over its capital stock paid in. It was proved that the balance of the debt owed by the corporation to the plaintiff amounted to $733.99, and with interest added in the sum of $217.87, to $951.86; that this debt was contracted between the plaintiff and the corporation between February 1, 1907, and April 22, 1907; and that dividends in bankruptcy paid by the trustee of the corporation in bankruptcy from July 25, 1907, to December 3,1908, amounting to 35\\u00bf per cent, upon the face of the claim, were duly credited, so that the balance of the account without interest was found to be $733.99, as above stated.\\nIt further appeared that the corporation, having become insolvent and having made an assignment May 4,1907, was put into bankruptcy by its creditors and was adjudicated a bankrupt in the United States District Court for Rhode Island May 29, 1907; the bankrupt's schedules filed in the United States District Court, ,and sworn to by the treasurer of the Pawtucket Steam & Gas Pipe Company were produced in evidence through the clerk of the United States District Court, and against objection and exception on behalf of the defendant, it was permitted to be shown from these schedules, that the admitted liabilities of the Pawtucket Steam & Gas Pipe Company were stated to be $67,943.66, of which $4,000 was a note secured by mortgage on real estate, and the balance unsecured claims.\\nAs to the amount of outstanding capital stock, it is specifically admitted that the corporation had issued stock of the par value of $63,427, as above shown; it appears to be assumed on both sides of this case that most of this stock had been paid for when issued, and no claim is made that any of the shares had not been paid for except that the plaintiff attempted to show that nine shares were unpaid; there is evidence to show that seven of these were paid for by transfer of property and good will of a business, and that one of them was paid for in cash; it is not clear whether the ninth share was ever paid for or not; we think the plaintiff has failed to show that any of the shares was unpaid, and in the absence of more satisfactory proof than we have before us we shall treat the whole outstanding stock ($63,427) as \\\"actually paid in\\\" in the language of the statute, for the purposes of this case.\\nFrom the admissions and evidence in the case we think that it may be fairly stated that the extent of the director's liability is made out as follows:\\nTotal indebtedness........................ $67,943 66\\nCapital stock issued....................... 63,427 00\\nExcess of debts over capital stock........... 14,516 66\\nAmount of Mott execution................. 1,575 59\\nBalance of Arnold liability................. $2,941 07\\nThe bill of exceptions sets forth eleven grounds of exceptions, of which only the first, third, fourth, fifth, seventh, eighth, tenth and eleventh are pressed at this time. They are as follows:\\n\\\"1. During the trial of said cause William P. Cross, Clerk of the United States District Court, was sworn as a witness and produced certain bankruptcy papers filed in said United States District Court by the Pawtucket Steam & Gas Pipe 'Company, Bankrupt; against the objection of the defendant said witness was allowed to read from said bankruptcy schedules a statement of the liabilities of said Pawtucket Steam & Gas Pipe Company, as a bankrupt, on May 29, 1907. To the ruling of the presiding justice in admitting this testimony the defendant duly excepted, as appears in said transcript of evidence, Exhibit A, at pages 3 and 8, questions 5, 6, 7 and 8. The defendant submits that this ruling admitting said testimony was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed. \\\"\\n\\\"3. The defendant during said cause offered to show through John A. Arnold, a witness produced by the defendant, that at the time the Pawtucket Steam & Gas Pipe Company placed a mortgage on its property, in 1901, said mortgage did not impair the fund created by the paid-in capital stock. The court sustained the objection of the plaintiff to the admission of this testimony and refused to permit the defendant to introduce evidence on this point, as appears in said transcript of evidence, Exhibit A, on pages 36, 37, 38, questions 11, 12 and 13. The defendant submits that this ruling excluding said testimony was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed.\\n\\\"4. During the trial of said cause the defendant offered to show through John A. Arnold, a witness produced in his behalf, that at the time the Pawtucket Steam & Gas-Pipe Company gave a mortgage on its property, in 1901, the assets of said corporation exceeded its liabilities, and that said mortgage did not impair the fund created by the paid-in capital stock of said company. On the objection of the plaintiff the presiding justice excluded this testimony, as appears in said transcript of evidence, Exhibit A, at pages 38, 39, 40, questions 14 and 15. The defendant submits that this ruling excluding said testimony was erroneous and prejudicial to his cause, and asks that his objection, duly taken at the time, may now be allowed.\\n\\\"5. During the trial of said cause the defendant offered to show through John A. Arnold, a witness produced in his behalf, that at or subsequent to the date when the Pawtucket Steam & Gas Pipe Company placed the said mortgage on its property, in 1901, the assets of said Pawtucket Steam & Gas Pipe Company were greater than its liabilities. On the objection of the plaintiff the court excluded said testimony, as appears in said transcript of evidence, Exhibit A, at page 40, question 16. The defendant submits that this ruling excluding said testimony was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed. \\\"\\n\\\"7. During the trial of said cause the defendant formally offered to prove that the liabilities of the Pawtucket Steam & Gas Pipe Company were reduced by the foreclosure of the mortgage given by the Pawtucket Steam & Gas Pipe Company on certain of its real estate, in 1901, and by the sale of said property under said foreclosure to the extent of $3,610, which said offer was made to establish a proper reduction of the indebtedness of said Pawtucket Steam & Gas Pipe Company. On the objection of the plaintiff the court excluded the testimony so offered by the defendant, as appears in said transcript of evidence, Exhibit A, at page 51. The defendant submits that this ruling excluding said testimony was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed.\\n\\\"8. During the trial of said cause the defendant offered in evidence a mortgagee's deed to show that at the time the suit at bar was instituted by the plaintiff the total indebtedness of the Pawtucket Steam & Gas Pipe Company had been reduced by the amount received upon the foreclosure of said mortgage. On the objection of the plaintiff the presiding justice excluded said testimony, as appears in said transcript of evidence, Exhibit A, at pages 54 and 55. The defendant submits that this ruling excluding said testimony was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed. \\\"\\n\\\"10. At the close of the testimony in said cause the defendant moved the court to direct a verdict for the defendant. The presiding justice denied the defendant's said motion, as appears in said transcript, Exhibit A, at page 56. The defendant submits that this ruling denying defendant's said motion was erroneous and prejudicial to his cause, and asks that his exception, duly taken at the time, may now be allowed.\\n\\\"11. At the close of the testimony of said cause the plaintiff moved the court to direct a verdict in its favor for the sum of $951.86. Against the objection of the defendant the court granted the plaintiff's said motion, and directed a verdict for the plaintiff in the said sum of $951.86, as appears in said transcript of evidence, Exhibit A, at pages 55 and 56. The defendant submits that this ruling directing a verdict for the plaintiff in said sum was erroneous and prejudicial to his cause, and asks that his exception, duly-taken at the time, may now be allowed. \\\"\\nA large part of the defendant's argument upon the first, tenth and eleventh exceptions is devoted to' an attempt to show that the plaintiff has not made out a prima facie case; and it is urged that it was the duty of the plaintiff to prove that all the debts owed by the corporation were incurred contractually, and were due absolutely and not contingently; and that such debts were due and unpaid at the date .of the plaintiff's writ; and that the plaintiff has failed to make such proof. We are not convinced by such argument. The plaintiff put in evidence the bankruptcy schedules of the Pawtucket Steam & Gas Pipe Company, and proved therefrom the admission by that company under oath of its treasurer in May, 1907, of total debts amounting to $67,943.66, which was largely in excess of \\\"the amount of its capital stock actually paid in, \\\" as shown in the discussion of the evidence above. We find no reason urged, and no authority cited on behalf of the defendant which convinces this court that such evidence was improperly admitted. The bankruptcy proceedings were under the United States.Bankruptcy Act of 1898, which by Section 7 requires that the bankrupt shall \\\" (8) prepare, make oath to and file in court within ten days, unless further time is granted, after the adjudication, if an involuntary bankrupt, and with the petition of a voluntary bankrupt, a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors, showing their residences, if knowii, if unknown, that fact, to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any. \\\". . The filing of this schedule as thus provided constitutes a solemn act of the corporation in a lawful proceeding before a court of competent jurisdiction and furnishes prima facie evidence of the amount of its debts as of the time of the filing of the schedule, in the case of the voluntary bankrupt and as of the time of the adjudication of bankruptcy in case of an involuntary bankrupt (as this corporation was). It is presumably a true statement of the assets and liabilities of the corporation as of the date of the adjudication (May 29, 1907). In putting this evidence before the Superior Court, it was expressly stated by the witness (Cross) that the schedule showed a $4,000 note secured by mortgage and the balance unsecured claims. There is nothing in this from which any inference should be drawn that any portion of the total debts was of a character such as should exclude that portion from consideration here, as being debts arising otherwise than by contract, or as being only contingently and not absolutely due at that time. If in fact there were any such debts shown in the schedule, it was the duty of the defendant's counsel to call attention to that fact by way of defence, when the schedule was before the court. It does not appear that counsel for the defepce attempted to show any such facts regarding any part of the total indebtedness; his attention was directed solely to the matter of the mortgage note of $4,000, secured upon real estate, with a view to claiming that by reason of the subsequent sale of the mortgaged property a reduction of the total debt was made whereby the defendant was exonerated from liability, as will develop in the consideration of the subsequent exceptions. The plaintiff alleged in its declaration an excess of debts owed over the amount of capital stock actually paid in, under the statute above quoted, whereby the defendant's liability as a director to pay the excess had accrued. The statute simply says: \\\"The whole amount of the debts which any such corporation shall at any time owe shall not exceed the amount of its capital stock actually paid in;\\\" the plaintiff proves by the admission of the corporation by its bankruptcy schedule \\\"the whole amount of the debts\\\" owed by the corporation at the date of adjudication of bankruptcy; it was not necessary for the plaintiff under this language of the statute to attempt by way of anticipation to negative the existence of any-possible items of indebtedness which the legal construction of the statute might determine should not be considered as a part of such debts for the purposes of the statute; that was manifestly a matter of defence, which, if it in fact existed, was quite within the knowledge or means of knowledge of the defendant.\\nTfye defendant further insists that even if the proof of the total amount of debts owed by means of the schedule is to be deemed sufficient prima facie proof for the purposes of this case, yet such proof only relates to the date of adjudication in bankruptcy (May 29, 1907), and is not sufficient proof that such excess of indebtedness existed at the date of the plaintiff's writ, which was issued May 19, 1909, and served May 20, 1909; and that the plaintiff should have shown as a part of its case that such excess of debts continued down to the date of the writ. And the defendant suggests and argues that in some way or other this excess of debts may have been paid in the meantime so as to exonerate the defendant, and that it was the duty of the plaintiff to have negatived this possibility. But the plaintiff having proved the bankruptcy of the corporation, and the amount of debts owed, was entitled to a prima facie presumption that this state of things continued; and if in fact the excess of debts had been paid so as to exonerate the defendant, it was a matter for the defendant to prove. 16 Cyc. pp. 1052-1054 and cases cited; p. 1054, notes 25-27.\\nThe fact to be proven by the plaintiff was that the total amount of debts owed by the corporation exceeded the paid-in capital stock; this schedule of liabilities under oath of the treasurer of the corporation was prima facie evidence of that fact as against the corporation and its directors, and it was expressly ruled by the trial judge that it was only prima facie proof and subject to be rebutted on behalf of the defendant if he saw fit to attempt so to do.\\nIt cannot be successfully maintained that the defendant should be presumed not to have knowledge of the contents of the bankruptcy schedules. He was president of the cor poration and a member of the board of directors and a stockholder for several years down to the time of its failure, and his own evidence shows that he was actively interested in its affairs, and cognizant of them to the extent of taking an active part in the purchase of property, the issue of the stock, and the payment of certain pressing debts of the company for which he took preferred stock. It will be presumed, in the absence of any denial on his part, that he was fully cognizant of the affairs and proceedings of the corporation at the date of its failure; and it was quite competent for him to have produced any facts which would have been available for his defence, if such facts existed. See Olney v. Chadsey, 7 R. I. 224.\\nOn careful examination of the whole record we are satisfied that the plaintiff made out a prima facie case for recovery upon all points.\\nWe now come to the real defence in this case as indicated by exceptions Nos. 3, 4, 5, 7 and 8, above set forth. It appears that the corporation, May 14, 1901, mortgaged certain real estate situate in Central Falls to the Slater Trust Company, of Pawtucket, to secure a note for $4,000, due one year after date, with interest at six per cent. It further appears that this mortgage was never paid by the corporation, but was allowed to remain upon the property until after the failure in May, 1907, and that thereafter on July 3, 1907, the property was sold under the power of sale in the mortgage; and the defendant offered to prove that at said sale the property was sold for the sum of $3,610. Defendant also offered to prove that at the time of the execution of the mortgage in 1901, and during certain other years thereafter the corporation was solvent, having assets in excess of its liabilities to such an extent that this note of $4,000 secured by mortgage, did not impair the fund created by the paid-in capital stock, but should be regarded as secured upon surplus assets and therefore payable out of surplus assets; and the defendant's counsel therefore claimed in the first place that this note of $4,000 should not be reckoned as a part of the total indebtedness; and further claimed that by the sale of the property under the mortgage for the sum of $3,610, after bankruptcy had taken place, the total indebtedness of the corporation above set forth was thereby reduced below the amount of the paid-in capital stock, and the defendant was thereby exonerated from further liability.\\nWe find it difficult to state these propositions in such a way as to present matter for argument, albeit defendant's counsel in their brief have argued at length in support of them. It seems to us that the evidence offered in this line and ruled out by the Superior Court was entirely irrelevant and immaterial. . The note for $4,000 secured by mortgage was as much a debt owed by the company as any other debt; the fact that the company was perfectly solvent when the note was made, and that it had then and later sufficient assets over and above the real estate mortgaged, so that its capital stock fund was not impaired, and so that it could then have paid this note out of surplus assets, had it seen fit to do so, is immaterial in view of the fact that it never did, as a matter of fact pay this mortgage note out of surplus assets, so that six years later, when the company failed, its debts* including this same $4,000 had been increased as above shown in excess of its paid-in capital. After the most careful consideration of the defendant's arguments we can find no ground either in reason or authority for holding that this mortgage note of $4,000 should not be included in the sum of the debts owed by the company in showing an excess of debts owed over paid-in capital; it has been expressly held to the contrary. The principle involved is well stated by the Supreme Court of Tennessee in the case of Tradesman Pub. Co. v. Car Wheel Co., 95 Tenn. 634, which holds that the term \\\"indebtedness\\\" as used in the charter of a company providing that, if the indebtedness of such company shall at any time exceed the capital stock paid in, the directors assenting thereto shall be individually liable to the creditors for said excess, includes all indebtedness of the corporation, thus including bonded indebtedness as well as floating indebtedness. The court said p. 657: \\\"The next question presented is whether the word indebtedness in the clause of the charter imposing personal liability on the directors assenting to an indebtedness in excess of the capital stock paid, includes bonded indebtedness. The Chancellor so held. The contention of the director's counsel is that the term means the floating indebtedness, and does not embrace the bonded debt. . . . The construction contended for by counsel for the directors would lead to this anomaly, that directors, having contracted indebtedness to the limit allowed by the charter, may fund this liability in bonds, secure them by a recorded mortgage, and then, without risk to themselves, incur additional indebtedness, and repeat the process toties quoties. . . . We think this section of the charter of the car wheel company is unambiguous, and the term indebtedness clearly includes the bonded debt. \\\" See, also, Morgan v. Hedstrom, 164 N. Y. 224, 229.\\nNor can we find either in reason or authority any support for the defendant's claim that the amount of $3,610 for which said real estate was sold under the mortgage after bankruptcy should be applied by way of reduction of the \\\"amount of debts owed\\\" by the corporation. At the time of this sale, there were no surplus assets of the corporation; it was insolvent and its entire property in liquidation by the trustee in bankruptcy .paid only 35 ^ per cent, upon the total debts. The foreclosure of this mortgage by the Slater Trust Company was but a step in the liquidation of the property in bankruptcy, in order to apply its mortgaged land to the debt due to the Slater Trust Company and to ascertain what if any balance of the $4,000 note remained to be included within the claims upon which the trustee in bankruptcy was to pay dividends. It turned out that a balance of $390 remained to be so included on behalf of the Slater Trust Company. So that it clearly appears that this sum of $3,610 was not paid out of surplus assets, for there were no such surplus assets; and there is nothing in the decision of the case of J. L. Mott Iron Works v. Arnold, 35 R. I. 456, which in any way supports the position here attempted to be taken by the defendant. On the contrary, we think the amount of $3,610 realized on the foreclosure sale of the mortgage, stands in principle upon the same footing as the payments made by the trustee in bankruptcy in the liquidation of the bankrupt estate and is no more to be credited for the use of the defendant in this case, than were the dividends in bankruptcy in the Mott case, supra.\\nMurdock & Tillinghast, for plaintiff.\\nWilliam A. Spicer, Jr., Frank H. Swan, Edwards & Angel\\u00ed, for defendant.\\nMany cases have been cited upon the elaborate brief filed on behalf of the defendant, all of which have been carefully considered. We have not found it necessary to cite or review any of them other than such as are mentioned herein; in none of them do we find any support for the defence in this case.\\nOn the consideration of the whole record we find no error on the part of the trial judge in the matter of any of the exceptions above set forth. We are of the opinion that the plaintiff made o\\u00fct a case for recovery and that no defence attempted on behalf of the defendant was of any force or validity. The trial judge was therefore justified in. directing a verdict for the plaintiff.\\nThe defendant's exceptions are all overruled and the case is remitted to the Superior Court with direction to enter judgment for the plaintiff upon the verdict.\"}"

ri/4976007.json

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+"{\"id\": \"4976007\", \"name\": \"Fred A. Young vs. R. I. Auto Sales Co., Inc. et als.\", \"name_abbreviation\": \"Young v. R. I. Auto Sales Co.\", \"decision_date\": \"1932-04-06\", \"docket_number\": \"\", \"first_page\": \"199\", \"last_page\": \"203\", \"citations\": \"52 R.I. 199\", \"volume\": \"52\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T00:22:53.179633+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Stearns, C. J., Rathbun, Sweeney, and Murdock, JJ.\", \"parties\": \"Fred A. Young vs. R. I. Auto Sales Co., Inc. et als.\", \"head_matter\": \"Fred A. Young vs. R. I. Auto Sales Co., Inc. et als.\\nAPRIL 6, 1932.\\nPresent: Stearns, C. J., Rathbun, Sweeney, and Murdock, JJ.\", \"word_count\": \"1145\", \"char_count\": \"6713\", \"text\": \"Rathbun, J.\\nThis bill in equity is before us on appeal of respondent, R. I. Auto Sales Co., Inc., from a final decree granting relief to the complainant.\\nSaid respondent sold to the complainant on a conditional sale agreement a Viking automobile and received in payment a Velie automobile, a certain sum in cash and the balance in notes. In making said sale said respondent was acting either as agent for, or with the permission of, one Descoli who had previously purchased the Viking automobile on a conditional sale agreement from respondent Max Botvin. Descoli having failed to pay the balance due Botvin, the title was in the latter at the time respondent Auto Sales Co., Inc., assumed to make the sale to the complainant. Within a few days after the Viking automobile was delivered by said respondent to the complainant it was taken from him by Botvin who had the title thereto. The notes given by complainant in part payment were delivered for discount to respondent Arter who, attempting to clear the title to the automobile, offered to pay Botvin the amount due him on Descoli's notes. The offer, which was made after Botvin had taken the automobile from the complainant, was refused.\\nThe complainant is seeking alternative relief; he prays that Botvin be required to accept from Arter the amount due the former from Descoli and return the automobile to the complainant; and, failing in this, complainant prays that R. I. Auto Sales Co., Inc., be required to repay to him, with interest, the amount of cash paid by him to said company and return the Velie automobile, or pay him the value thereof, and that Arter be required to surrender for cancellation the notes delivered by complainant to said company.\\nRespondent R. I. Auto Sales Co., Inc., filed an answer in the nature of a cross-bill praying that Botvin be required to accept the amount due him on the Viking automobile and return it to the complainant or to said respondent.\\nThe trial court entered a decree dismissing the bill as .to Botvin and granting relief to the complainant substantially in accordance with the second prayer for alternative relief as above set forth. Respondent R. I. Auto Sales Co., Inc., appealed from said decree.\\nThe question in the case is whether Botvin was in duty bound to deliver title of the repossessed automobile either to the complainant or to said sales company upon tender by Arter of the amount due Botvin on Descoli's notes which were long overdue.\\nThe question must be answered in the negative. The trial justice found that there was no evidence to sustain the assertion in the cross-bill that Botvin had agreed to surrender the Viking automobile or to show that anything more was done by R. I. Auto Sales Co., Inc., or Arter than to inquire from Botvin's bookkeeper, after the sale to Young, as to the amount due. This finding was justified. It therefore appears that said company has no claim against Botvin for breach of contract.\\nThe document expressing the agreement between Botvin and Descoli was a conditional sale agreement, and not a mortgage, and was therefore not required to be recorded in order to be valid as to third persons. Arnold v. Chandler Motors, 45 R. I. 469. Said agreement contained provisions as follows:\\n\\\"1. Title to said property shall not pass to the purchaser until said amount is fully paid in cash. . . . 5. The purchaser . . . shall not transfer any interest in this contract or said property. . 6. Time is the essence of this contract, and if the purchaser default in complying with the terms hereof, the seller may take immediate possession of said property, (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose the seller may enter upon the premises where said property may be and remove it. The seller may resell said property, so retaken, at public or private sale, without demand for performance, with or without notice to the purchaser. . . . From the proceeds of any such sale, the seller shall deduct all expenses for retaking, repairing and selling such property, including a reasonable attorney's fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser; in case of deficiency the purchaser shall pay the same with interest and the purchaser does hereby confess judgment in the amount of said deficiency.\\\"\\nWhen Botvin took possession he was acting entirely within his rights as set forth in the agreement. By the terms thereof Descoli had no right to transfer his interest in the automobile, and he had no right to authorize another to effect a sale.\\nInasmuch as the agreement between Botvin and Descoli did not provide that all payments made under the agreement should be considered as rent until the full purchase price be paid, the appellee, said company, contends that a tender of the amount due on said notes vested title to the automobile in Descoli, in other words, that Descoli had a right to redeem, even after possession was taken, at any time before Botvin sold the automobile. Without consider ing in detail the general proposition of law suggested \\u2014 but not raised by the facts in the case \\u2014 it is sufficient to say that by the terms of the agreement Botvin, after rightfully retaking possession, was entitled to receive, in addition to the amount due on the notes, \\\"all expenses for retaking.\\\" The appellee suggests that' courts of equity do not favor forfeitures. However, even equity courts do not, without a showing of fraud, express or implied, ordinarily grant relief against contracts which are otherwise valid and contain no penalty clause. As this court said in Hamblin v. Sprague, 50 R. I. at 103: \\\"We are not to construe equities into the contract, but to carry it out as the parties were content to make it.\\\" Botvin protected his interests as he had a right to do, and, had he not been enjoined from selling, presumably would have sold the automobile and accounted to Descoli in accordance with the agreement.\\nJudah C. Semonoff, -for complainant.\\nKnauer & Fowler, for R. I. Auto Sales Co., Inc.\\nRaymond & Semple, Harold R. Semple, for respondent Max Botvin.\\nAs to respondent Arter, who had not appealed, it may be said that he knew before he accepted the notes that title to the automobile was in Botvin and that said company had no authority to sell to the complainant. Furthermore, it does not appear that he has advanced any money on said notes.\\nThe appeal is denied and dismissed. The decree appealed from is affirmed and the cause is remanded to the Superior Court for further proceedings.\"}"

ri/4990072.json

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+"{\"id\": \"4990072\", \"name\": \"Leander C. Marshall vs. George W. Perkins\", \"name_abbreviation\": \"Marshall v. Perkins\", \"decision_date\": \"1897-04-17\", \"docket_number\": \"\", \"first_page\": \"34\", \"last_page\": \"35\", \"citations\": \"20 R.I. 34\", \"volume\": \"20\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T17:07:30.257665+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Matteson, C. J., Stiness and Tillinghast, JJ.\", \"parties\": \"Leander C. Marshall vs. George W. Perkins.\", \"head_matter\": \"Leander C. Marshall vs. George W. Perkins.\\nPROVIDENCE\\nAPRIL, 17, 1897.\\nPresent: Matteson, C. J., Stiness and Tillinghast, JJ.\\nA husband is liable for necessaries furnished to his wife, but not for money to buy them with, as such money might be misapplied.\\nSemble, that the testimony of the wife alone that the money was laid out for necessaries would be insufficient, as it would open the door to a misapplication which it is the purpose of the law to prevent.\\nDefendant\\u2019s petition for a new trial.\", \"word_count\": \"415\", \"char_count\": \"2288\", \"text\": \"Per Curiam.\\nThe court is of opinion that the defendant is entitled to a new trial upon exception to the refusal of the third request for instruction to the jury, viz.: \\\"That he is in no case liable for money loaned to the wife, even though it be to purchase necessaries.\\\"\\nIn Gill v. Read, 5 R. I. 343, Ames, C. J., said : \\\"It is old law that neither a wife nor an infant has credit to borrow money, the credit being for necessaries and not for money to buy them with, which may he misapplied. If, indeed, the lender lays out the money or sees it laid out for necessaries, he may charge them as provided by himself, and thus the application of the loan is left, as it should be, at his peril. If, as we understand the bill of exceptions, the money was furnished by the plaintiff directly to the wife, and there was no evidence that the same was applied by her to the purchase of necessaries, which the plaintiff charged, as he might, as furnished by himself, the ruling as to these items was erroneous.\\\"\\nThe court is of the opinion that that case is not substantially different from the present. The credit which the law recognizes is for necessaries, and not for money to buy them with, which may be misapplied. The present case does not show that the plaintiff either furnished the necessaries or saw that the money advanced was laid out for necessaries, and hence he is not within the rule. If the testimony of the wife alone that the money was laid out for necessaries should he held to be sufficient, it would open the door to the liability for misapplication, which it is the purpose of the rule to prevent.\\nCharles H. Page and Franklin P. Oioen, for plaintiff.\\nDavid S. Baker, for defendant.\\nNew trial granted, and case remitted to the Common Pleas Division for further proceedings.\"}"

ri/5000494.json

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+"{\"id\": \"5000494\", \"name\": \"William McCanna vs. New England Railroad Company\", \"name_abbreviation\": \"McCanna v. New England Railroad\", \"decision_date\": \"1898-03-29\", \"docket_number\": \"\", \"first_page\": \"439\", \"last_page\": \"443\", \"citations\": \"20 R.I. 439\", \"volume\": \"20\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T17:07:30.257665+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Matteson, C. J., Tillinghast and Rogers, JJ.\", \"parties\": \"William McCanna vs. New England Railroad Company.\", \"head_matter\": \"William McCanna vs. New England Railroad Company.\\nPROVIDENCE\\nMARCH 29, 1898.\\nPresent: Matteson, C. J., Tillinghast and Rogers, JJ.\\nPlaintiff was injured and his horse killed on a grade crossing of the defendant\\u2019s railroad. He was familiar with the crossing, and had an unobstructed view of the railroad for some distance before reaching it, excepting a bank that obstructed his view when very near to it; he did not stop his horse, but listened ; his carriage made some noise, and he did not hear the whistle until so near that his horse became unmanageable and plunged forward striking one of the cars, although he gathered up the slackened reins and tried to stop him :\\u2014 Held, that plaintiff was guilty of negligence and had no claim agaiust the defendant.\\nThe duty to look and listen before crossing a railroad track at grade requires the traveler to select a position from which an observation can be made.\\nBut if looking or listening should be rendered unavailing and useless, then the law would excuse the traveler therefrom, as it never requires the performance of a futile act.\\nTrespass on the Case for negligence.\\nHeard, on defendant\\u2019s petition for a new trial.\", \"word_count\": \"1765\", \"char_count\": \"9845\", \"text\": \"Tillinghast, J.\\nThis is an action of trespass on the case for negligence. It was tried in the Common Pleas Division and resulted in a verdict for the plaintiff for $500, and the defendant now petitions for a new trial on the grounds (1) that the verdict was against the evidence and the weight thereof, and (2) that the verdict was against the law.\\nThe injuries complained of were received by the plaintiff on the 9th of October, 1895, at about four o'clock in the afternoon, at a railroad crossing on the main road between East Blackstone, Mass., and Woonsocket, R. L, in the following manner : The plaintiff, who is an undertaker, had been to a burying-ground with a funeral and was returning along said road to Woonsocket, driving a one-horse hearse, and when he reached the point where the road crosses the railroad at grade, his horse, which was a spirited one, became unmanageable by reason of the approaching train and, despite the efforts of the plaintiff to control him, plunged forward and ran into the rear part of the third car of the limited express train running from Boston to Willimantic. The train was a regular one and was on time when the accident occurred. The hearse was overturned, and the plaintiff was thrown to the ground and injured by the collision, and the horse was so badly injured that he afterwards died in consequence thereof.\\nThe evidence shows that a person approaching said crossing from the direction in which the plaintiff was approaching it would have an unobstructed view of the railroad for a considerable distance, until he gets near to the crossing, when a hill or bank, covered with trees and shrubbery, would shut off his view until he comes near to said crossing.\\nThe plaintiff's declaration alleges negligence on the part of the defendant (a) in its failure to blow the whistle; (b) in its failure to ring the bell-; (c) in its failure to maintain any gate or flag-man at said crossing ; and (d) in its failure to give any warning or signal whatever that its locomotive and train were approaching said crossing.\\nThe plaintiff was perfectly familiar with the crossing and had been over it five times before the same day. He testified that he was looking out for any train that might come along ; that he was listening, with his head inclined to the left, and that the first he knew of the approach of the train was when he heard the whistle blow, he then being about seventy feet from the track; that he then gathered up the slack reins and tried to stop his horse but could not, as it threw up its head and made a plunge forward, striking the third car as afore said. In cross-examination plaintiff testified that he was trotting his horse right along until he got within sixty feet or so of the crossing, trying to listen at the same time \\\"with one ear,\\\" and that as he could not hear anything there was no occasion for him to,stop ; that the first he knew he heard the whistle, and then it was too late to pull up; that if he had heard the train coming he would have stopped, but not . hearing it he did not stop. He further testified that his carriage rattled along, making some noise while he was trying to listen as aforesaid, and that a hack was being driven just behind him. The plaintiff offered no testimony except his own in support of his case.\\nIt is very clear that upon such testimony as this the plaintiff has no legal claim against the defendant. In attempting to cross the railroad in the manner above stated he was guilty of gross negligence. He was evidently driving with a slack rein; he did not stop, or even slacken the speed of his horse ; and, according to his own testimony, the only listening which he did, if indeed it can be said that he listened at all within the fair and practical meaning of the term, was of such a perfunctory sort as to be of no avail. The fact that his view of the track was obstructed was not only no excuse for his attempting to cross the same without observing the customary rule, but rendered its observance, in so far at least as stopping and listening were concerned, all the more necessary and imperative. The further fact that he was driving a spirited horse also called for the exercise of a higher degree of care than would otherwise have been required, the well-understood rule everywhere being that the degree of care to be exercised in a given case must be commensurate with the degree of danger. Moreover, the duty to look and listen before crossing a railroad track at grade requires the traveler to select a position, if practicable, from which an observation can be made. That is to say, ' ' he must exercise care to make the act of looking and listening reasonably effective.\\\" 3 Elliot on Eailroads, \\u00a7 1166 ; Patterson on Eailway Accident Law, 111, and cases cited. Had the plaintiff stopped and listened at a reasonable distance from said crossing in the circum stances of the case, as it was clearly his duty to ' have done, and as even a modicum of common sense and common prudence would seem to have dictated, no harm could have befallen him. Having failed to observe such a simple and reasonable precaution, the law can afford him no redress.\\nIn the case of Papper v. So. Pacific Railway Co., 105 Cal. 389, cited by defendant, the court say: \\\"If he could not see an approaching train because his vision was obstructed, ordinary care for his own safety required him to stop in order that his hearing should not also be obstructed, and in any event to make his approach so slowly as to give him complete control of his team, and enable him to stop instantly if occasion required.\\\"\\nIn Chase v. Maine Central Railroad Co., 167 Mass. 383, the court state the rule as follows: \\\"The general rule in this Commonwealth undoubtedly is that, as a railroad crossing is a dangerous place, a traveler on the highway is bound to make a reasonable use of his sense of sight as well as of hearing, in order to ascertain whether he will expose himself to danger; that if he fails so to use his senses, without reasonable excuse, he fails to use reasonable care, and that the burden is on the plaintiff to show such care, even though the defendant is in fault. So, too, it may be said to be a general, although not a universal, rule that if there is anything to obstruct the view of a traveler on the highway at a crossing at grade, it is his duty to stop until he can ascertain whether he can cross with safety.\\\"\\nTo the same general effect are Littaur v. Narragansett Pier R. R. Co., 61 Fed. Rep. 591; Rhoades v. Chicago, &c. R. R. Co., 21 Am. & Engl. R. C. 659 ; and Chase v. Maine Central R. R. Co., 78 Me. 353, cited by defendant. It is true, as suggested by plaintiff's counsel, that in Ormsbee v. Boston & Prov. R. R. Co., 14 R. I. 102, this court held, in substance, that the rule requiring a traveler to stop and look and listen before attempting to cross a railroad was subject to certain exceptions, one of which is that where the view of the track is so obstructed that the traveler is unable to see up and down the same- as he approaches it, he is obliged to act upon his judgment at the time as to what precaution he shall take. That is, that where compliance with the rule is impracticable or unavailing, he is excused from observing it. We approve of the doctrine thus \\u00e9nunciated. Of course the rule is and must necessarily be subject to exceptions, as- indeed what rule of law or of human conduct is not ? If looking or listening, or both, should for some reason be rendered unavailing and useless, then the law would excuse the traveler therefrom, as it never requires the performance of a useless or futile act. So again, as said in the Ormsbee case, \\u00a3\\u00a3 where the direct act of some agent of the company had put the person off his guard and induced him to cross the track without precaution,\\\" this would excuse the traveler from observing said rule. These exceptions, however, furnish no support to the plaintiff's case. For, while his view was obstructed in manner aforesaid, yet there was evidently nothing which, interfered with his hearing the approaching train except the noise made by his own carriage, and perhaps that of the hack in his rear; and there can be no doubt whatsoever that if he had stopped and listened he would have heard the approaching train. As it is clear, therefore, that the plaintiff's own negligence was 'the proximate cause of the injury, there is no occasion for us to consider the alleged negligence on the part of the defendant or to consider the evidence offered by it in the case.\\nCharles H. Page and Charles PL. Page, Jr., for plaintiff.\\nJames M. Ripley and John Henshaw, for defendant.\\nPetition for new trial denied.\"}"

ri/5007676.json

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+"{\"id\": \"5007676\", \"name\": \"Gordon E. Haslam vs. Carl E. Carlson et al.\", \"name_abbreviation\": \"Haslam v. Carlson\", \"decision_date\": \"1924-06-11\", \"docket_number\": \"\", \"first_page\": \"53\", \"last_page\": \"57\", \"citations\": \"46 R.I. 53\", \"volume\": \"46\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:42:02.896708+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\", \"parties\": \"Gordon E. Haslam vs. Carl E. Carlson et al.\", \"head_matter\": \"Gordon E. Haslam vs. Carl E. Carlson et al.\\nJUNE 11, 1924.\\nPresent: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\", \"word_count\": \"1246\", \"char_count\": \"7231\", \"text\": \"Sweetland. C. J.\\nThis is a petition in equity in the nature of quo warranto brought under the statute to determine the title of the individual respondents to the office of president, vice president, treasurer and director, respectively, of the Narragansett Cotton Mill Inc.\\nThe cause involves the validity of an election by the stockholders of the seven directors of the corporation held on February 9, 1924. The officers of the corporation, except the secretary, are elected by the board of directors.\\nThe first claim of illegality made by the petitioners is that the election of the respondents was had in violation of the following provision of the by-laws of the corporation with regard to the order of business at the annual meeting. \\\"5. Election of directors and other officers, the president first naming the tellers.\\\" The petitioner alleges that the tellers were named by the president after the nomination of candidates for directors. The petitioner fails to support his contention upon this claim. There is conflict in the evidence. We find the fact to be that before the nomination of directors the president did appoint three tellers. One of the tellers named by the president was later nominated for the position of director and the president then named another stockholder as teller in place of the stockholder who had been nominated for director. All this occurred before the casting of ballots by the stockholders, and in no way affected the validity of the election.\\nThe second claim of illegality is that the tellers failed to comply with the following provision of the by-laws of the corporation: \\\"At all elections the president shall appoint two tellers who shall receive and count the ballots cast for all officers and shall report the result.\\\" The tellers did receive the ballots cast for directors. In the course of counting the ballots the tellers held that certain ballots so received by them were invalid. The tellers rejected as invalid two hundred and sixty-four ballots which were cast in favor of the petitioner for director. Of these two hundred and sixty-four ballots, the petitioner particularly objects to the action of the tellers in regard to ballots with proxies attached representing seventy shares of stock standing in the name of John E. Person and ballots with proxies attached representing one hundred shares of stock standing in the name of John A. Person.\\nIn their report to the meeting the tellers did not state that they had assumed to act judicially with reference to said 264 ballots and had conclusively determined that the same should be rejected. The tellers did report the result of their count of the other ballots. The presiding officer declared the seven candidates elected whose votes were the highest according to the report of the tellers. As to the correctness of the count and of the declaration of the president with reference to six of the candidates no question has been raised. The tellers reported that Andrew E. Johnson had received 6,401 votes and was the seventh in order according to number of votes received, and that the eighth was the petitioner with 6,315 votes in his favor. Mr. Johnson was declared elected as the seventh director. If the 170 votes, representing the 170 shares of John A. and John E. Person which were cast for the petitioner, had been counted in his favor his vote would have exceeded that for Mr. Johnson, as the same was reported by the tellers.\\nThe ground upon which the tellers based their determination of illegality with reference to the ballots upon said 170 shares of stock was that in the body of the appointment of proxy attached to each ballot the name of the person appointed did not appear in the blank space provided for that purpose nor elsewhere in the appointment. It is unquestioned that the person to whom each of the appointments in question was delivered by the stockholder had authority to fill the blank with his own name before casting the ballot. This was not done in either case. We are of the opinion that a ballot cast by a person claiming to have authority to do so, when his authority does not appear on the face of the appointment is an invalid ballot. In the circumstances of this case, however, it was an invalidity which the stockholders' meeting, after the report of the tellers and before the vote was declared by the officer presiding, might have permitted the proxy to remove by authorizing him to fill the blank in the appointment, which was attached to the ballot cast by him. It appears that in this corporation the number of stockholders is not great; that nearly all were present or were represented at this annual meeting, and from the evidence we are justified in assuming that they remained until the close of the meeting.\\nThe tellers failed in their duty under the provisions of the by-laws that they \\\"shall receive and count the ballots cast for all officers and shall report-the result.\\\" They did not report to the meeting that they had rejected the ballots representing said one hundred and seventy shares of stock and the grounds of such rejection. This they should have done that the meeting might, before the declaration of the vote, take such action as to it seemed proper in the circumstances. The tellers should also have reported the facts concerning the other ballots which they rejected. Ordinarily the failure of the tellers to inform the meeting that they had failed to count the 264 ballots in question would render the declaration of the vote invalid in so far as it was affected by this action of the tellers. Evidence was presented, however, by the respondents, through one of the tellers, that, from an examination of the memoranda used by the tellers in arriving at the result reported to the meeting as to the number of votes cast for Andrew E. Johnson, it appeared that an error had been made in the teller's count, and that Mr. Johnson should be credited with 6,701 votes rather than 6,401 votes as reported by the tellers. If we accept this testimony of the teller, then the petitioner failed of election even if all the rejected ballots had been counted in his favor. The ballots cast at the election have been filed in the office of the clerk of this court. They have been inspected by counsel on both .sides of the petition. No question is raised as to the correctness of the facts, testified to by the teller, and we take the same as true.\\nGreenough, Easton & Cross, Charles P. Sisson, for petitioner.\\nKnauer, Hurley & Fowler, for respondent.\\nThe action of the tellers in failing to report to the stockholders that they had rejected 264 ballots cast for the petitioner was irregular. It did not however affect the result of the election for the seven directors. In our opinion no good would be accomplished by declaring the election of Mr. Johnson invalid, nor in justice to him could it be done. He is entitled to the benefit of all the votes cast in his favor and his interests should not be affected by an impropriety on the part of the tellers in which he took no part.\\nThe petition is denied. Decree may be entered accordingly.\"}"

ri/5008742.json

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+"{\"id\": \"5008742\", \"name\": \"Ferdinando Fainardi et al. vs. Louis W. Dunn, Justice\", \"name_abbreviation\": \"Fainardi v. Dunn\", \"decision_date\": \"1925-03-02\", \"docket_number\": \"\", \"first_page\": \"344\", \"last_page\": \"347\", \"citations\": \"46 R.I. 344\", \"volume\": \"46\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T19:42:02.896708+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Sweefcland, C. J., Stearns, Rathbun, Sweeney, and Barrows, JJ.\", \"parties\": \"Ferdinando Fainardi et al. vs. Louis W. Dunn, Justice.\", \"head_matter\": \"Ferdinando Fainardi et al. vs. Louis W. Dunn, Justice.\\nMARCH 2, 1925.\\nPresent: Sweefcland, C. J., Stearns, Rathbun, Sweeney, and Barrows, JJ.\", \"word_count\": \"831\", \"char_count\": \"4825\", \"text\": \"Sweetland, C. J.\\nThis is a petition for a writ of certiorari directed to the respondent in his capacity as a magistrate in examining and acting upon the application of Ettore Sghelli to take the poor debtor's oath. The petitioner prays that the respondent be required to certify the record relating to said application to this court to the end that so much thereof as is illegal may be quashed.\\nThe respondent has forwarded the record in question to us and has also approved the truth of a transcript of the evidence taken before him at the hearing upon said application. This transcript is before us.\\nThe applicant for the oath, Ettore Sghelli, was one of the defendants in an action for deceit, against whom final judgment has been rendered in the superior court, and who is liable to be committed to jail upon execution issued on said judgment.\\nThere is no statutory method provided for review of the decision of a magistrate upon an application to take the poor debtor's oath. The petition sets forth that the determination of the respondent now in question was erroneous in law.\\nIn the exercise of its final revisory jurisdiction upon all questions of law and equity, this court has issued a writ of certiorari, when no other remedy has been specifically provided by statute for the review of alleged errors of law committed in an inferior tribunal. Providence Theatre Co. v. District Court, 38 R. I. 12.\\nThe respondent found said Sghelli entitled to take the oath, and administered the same to him. The statutory form of oath includes among other things the following: \\\"I have not, since the commencement of this suit against me or at any other time, directly or indirectly, sold, leased or otherwise conveyed or disposed of to, or entrusted any person or persons whomsoever with, all or any part of the estate, real or personal, whereof I have been the lawful owner or possessor, with any intent or design to secure the same or to receive or to expect any profit or advantage therefrom for myself or for any of my children or family or any other person, or have caused or suffered to be done anything else whatsoever whereby any of my creditors may be defrauded, so help me God.\\\" Section 5, Chapter 377, General Laws 1923.\\nThe petitioner claims that the action of the respondent, in administering said oath to Sghelli, was erroneous in law, for the reason that Sghelli testified before the respondent that he had, between the time of the commencement of said suit, in which judgment had been entered against him, and the time of the hearing before the respondent, made an assignment of his property. The petitioner further claims that it clearly appears from the testimony of Sghelli that said assignment was made by him with the intent to secure the same and receive profit and advantage to himself whereby his creditors were defrauded.\\nIn certiorari this court will not review and reverse findings of fact made by an inferior tribunal but will examine the evidence solely to pass upon questions of jurisdiction and questions of law, e. g., to determine if there was any competent evidence before that tribunal which supports its decision, or if such decision was made in disregard of the uncontroverted evidence before the tribunal. Lonsdale Co. v. License Commissioners, 18 R. I. 5; McCarty v. Aldermen, 38 R. I. 385; Baur v. Town Council, 39 R. I. 500. An examination of the evidence fully supports the petitioner's claim that, previous to the hearing before the respondent and since the entry of judgment, the debtor had made an assignment of all claims and demands which he had against the Outlet Company, a corporation doing business in Providence; that said assignment ostensibly secured to the assignee named therein certain claims due and arising to the debtor before the time of the hearing but that the debtor had a secret agreement with the assignee whereby nearly all of said assigned claims were secured to the debtor's own use. This assignment was in fraud of the creditors of Sghelli. Robinson v. McKenna, 21 R. I. 117; Lennon v. Parker, 22 R. I. 43. With this undisputed evidence, given by the debtor himself, before the respondent, it was error in law for him to administer the oath to the debtor.\\nFlynn & Mahoney, James W. Leighton, for petitioner.\\nWilliam C. H. Brand for respondent.\\nThe writ of certiorari will issue and on it judgment will be entered that the record of the action of the respondent in admitting the debtor to take the poor debtor's oath is quashed, as is also the certificate to that effect given to the debtor under the hands and seal of the respondent, in accordance with the provisions of Section 21, Chapter 377, General Laws 1923.\"}"

ri/5015051.json

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+"{\"id\": \"5015051\", \"name\": \"Abby J. Blake et al. vs. Rhode Island Hospital Trust Company, Ex.; Same vs. Same\", \"name_abbreviation\": \"Blake v. Rhode Island Hospital Trust Co.\", \"decision_date\": \"1933-01-18\", \"docket_number\": \"\", \"first_page\": \"87\", \"last_page\": \"89\", \"citations\": \"53 R.I. 87\", \"volume\": \"53\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T21:28:00.256190+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Steams, C. J.,'Rathbun, Sweeney, Murdock, and Hahn, JJ. .\", \"parties\": \"Abby J. Blake et al. vs. Rhode Island Hospital Trust Company, Ex. Same vs. Same.\", \"head_matter\": \"Abby J. Blake et al. vs. Rhode Island Hospital Trust Company, Ex. Same vs. Same.\\nJANUARY 18, 1933.\\nPresent: Steams, C. J.,'Rathbun, Sweeney, Murdock, and Hahn, JJ. .\", \"word_count\": \"592\", \"char_count\": \"3457\", \"text\": \"Rathbun, J.\\nThese proceedings involve the will of Adeline L. Thomas which was admitted to probate on March 18, 1930, by the Probate Court of the City of Provi dence. From the decree of said court certain relatives claimed an appeal on the ground of lack of testamentary-capacity. Before the appeal was heard by the Superior Court certain descendants of a half sister of the testatrix were permitted to become parties appellant to said appeal. The appeal was heard by a justice of the Superior Court, sitting without a jury, who decided that at the time of the execution of the will the testatrix had testamentary capacity. The case is here on exception of said descendants to the decision of said justice and also on their petition, based upon Sec. 3, Chap. 347, G. L. 1923, that they be allowed to file in the Superior Court a motion for a new trial based upon newly discovered evidence.\\nAs to the exception to the decision of said justice, it is sufficient to say that the decision is amply supported by the evidence. There was little opposed to a mass of evidence clearly showing business shrewdness and testamentary capacity, except the testimony of a physician, a stranger to the testatrix, called in a few days before her decease, and of a nurse whom he at that time placed in the home of the testatrix. The testimony of these two witnesses was specifically discredited by said justice in his oral opinion.\\nWe will now consider the petition for leave to file a motion for a new trial based upon newly discovered evidence. There was some evidence tending to show that testatrix believed that her said half sister, the ancestor of these petitioners, was illegitimate and that for this reason she cared little for the petitioners and as a result made no provision for them in the will. The evidence newly discovered consists of a marriage certificate purporting to show that Abby Horswell, mother of the testatrix and of her said half sister, was married to one John D. Washburn. Whether, with the aid of said certificate and other evidence, the petitioners could establish that said half sister was legitimate does not clearly appear. By the use of said certificate the petitioners hope to establish that the testatrix was suffering from an insane delusion. Admitting that testatrix was mistaken, that fact has little tendency to show that she had insane delusions. The testimony as to the sanity and testamentary capacity of the testatrix appeared to be very clear and convincing to the trial justice, and a study of the record satisfies us that there was ample foundation for his opinion. It is our opinion that if said certificate had been before said justice his decision would have been the same and that the introduction of the certificate at another trial would not be likely to change the result. See Shepard v. N. Y., N. H. & H. R. R. Co., 27 R. I. 135.\\nHinckley, Allen, Tillinghast, Phillips & Wheeler, S. Everett Wilkins, Jr., for appellants and petitioners.\\nTillinghast & Collins, Malcolm D. Champlin, for appellee and respondent.\\nThe petition for leave to file a motion for a new trial is denied and dismissed. The exception to the decision of said justice is overruled and the papers in the original case are ordered remitted to the Superior Court for further proceedings.\"}"

ri/5023720.json

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+"{\"id\": \"5023720\", \"name\": \"State vs. Frank S. Domanski et al.\", \"name_abbreviation\": \"State v. Domanski\", \"decision_date\": \"1937-03-16\", \"docket_number\": \"\", \"first_page\": \"500\", \"last_page\": \"506\", \"citations\": \"57 R.I. 500\", \"volume\": \"57\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-11T01:14:15.554355+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Flynn, C. J., Moss, Capotosto, Baker, and Condon, JJ.\", \"parties\": \"State vs. Frank S. Domanski et al.\", \"head_matter\": \"State vs. Frank S. Domanski et al.\\nMARCH 16, 1937.\\nPresent: Flynn, C. J., Moss, Capotosto, Baker, and Condon, JJ.\", \"word_count\": \"1840\", \"char_count\": \"10467\", \"text\": \"Capotosto, J.\\nIn this case a constitutional question is certified to us under General Laws, 1923, Chapter 348, Section 1. The defendants contend that the form for robbery set out in Public Laws, 1932, Chapter 1954, Section 3, Clause 5, which the indictment in the instant case follows, is unconstitutional in that it fails to inform them of the nature and cause of the accusation, in violation of Article'I, Sec. 10 of the Constitution of Rhode Island.\\nThe above-cited clause reads as follows: \\\"The following forms may be used in the cases in which they are applicable: . . . Robbery. \\u2014 A. B. robbed C. D.\\\" The indictment charges that these defendants on June 1, 1936, in Central Falls, \\\"did rob one William J. Wilbek.\\\" Section 3, Clause 4 of the statute in question provides that: \\\"The indictment or complaint may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more of the following ways: (a) By using the name given to the offense by the common law or by a statute.\\\"\\nThe common law crime of robbery consists in the \\\"felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear.\\\" 2 East P. C. 707; 4 Black, Comm. 243; Hale P. C. 532. The gist of the crime of robbery is the taking by force and fear. The nature and value of the property is immaterial, so long as it is property which may be the subject of larceny. State v. Denby, 143 Wash. 288; Wesley v. The State, 61 Ala. 282, 287; State v. Burke, 73 N. C. 83; State v. Howerton, 58 Mo. 581; People v. Nolan, 250 Ill. 351; State v. Perley, 86 Me. 427. The common law definition of the word \\\"robbery\\\" includes both the nature and cause of the offense. The manner in which that crime must be committed indicates its nature, and the kind of property that must be taken identifies the cause.\\nA word may acquire a specific meaning and become a word of art through constant and unmistakable usage. -At common law the term \\\"robbery\\\" or \\\"to rob\\\" has but a single meaning. When used in criminal proceedings or in connection with legal matters these words have a technical meaning and, unless otherwise defined by statute, they include within themselves all the elements of the common law crime of robbery. We cite the following rather old cases to illustrate the sole meaning that for years has been impressed by the courts upon the words \\\"robbery\\\" and \\\"to rob\\\" in the general field of the law.\\nIn De Rothschild v. The Royal Mail Steam Packet Co., 7 Exch. 734, the defendant was sued for the theft of boxes of gold dust, while in transit from Panama to London, under a bill of lading which excepted loss by \\\"robbers\\\". Looking at the nature of the contract and the circumstances under which it was made, the court agreed with counsel for the defendants \\\"that the word 'robbers' ought not to be construed in the technical sense given to the word 'rob' by the English law writers, and by some of the English statutes (1 Vict. c. 87, s. 2, for instance) where it means the felonious taking from the person or in the presence of another, of money or goods, against his will, by force, as putting him in fear\\\", but the court nevertheless held the defendants liable on the ground that the gold dust was stolen and not \\\"taken by force by a vis major.\\\" The statute cited by the court provides a penalty for \\\"whosoever shall rob any Person\\\" and at the time \\\"of such Robbery\\\" shall cut, stab or wound him.\\nIn Tomlinson v. Brittlebank, 4 Barn. & Adolph, 630, the declaration in an action for slander alleged that the defendant said of the plaintiff: \\\"He robbed John White, thereby meaning that the said plaintiff had been and was guilty of an offense punishable by law.\\\" There being no allegation of special damage, counsel for the defendant contended that the. word \\\"rob\\\" was of equivocal import and that, therefore, the suit could not be maintained without such an allegation. The court overruled this contention and, at page 632 of the opinion, says: \\\"Almost any words may be used in more than one sense. But the word to 'rob' gives a sufficient description of an offence punishable by law in the very terms of the statute 7 & 8 G. 4, c. 29. It has but one legal sense.\\\"\\nIn Tyson v. United States, 7 Okla. Crim. 433, the defendant was indicted in the words of the statute for an \\\"assault with intent to rob.\\\" The court sustained the indictment and, at page 434, says: \\\"The term 'rob' is used therein in its common-law sense and has a well-defined meaning.\\\" The case of Robinson v. The State, 11 Tex. App. 309, is to the same effect. In Acker v. Commonwealth, 94 Pa. 284, the indictment for robbery failed to charge that the property was taken from the person and against the will of the prosecutor. The defendant filed motions- to quash the indictment and in arrest of judgment on the ground that the indictment did not charge any offense known to the law. These motions were overruled and, at page 286 of the opinion, the court says: \\\"It is not necessary that all the circumstances which enter into the definition of robbery at common law should be particularly averred in the indictment. The word rob, which is used ex vi termini, includes all those circumstances, and it sufficiently appears that a taking from the person of the prosecutor and against his will, that being the legal definition of robbery, was substantially charged in the indictment.\\\"\\nThe common law meaning of the word \\\"robbery\\\" was well established in this State long before P. L. 1932, Chap. 1954, now under consideration, was passed by the legislature. No definition of that word appears anywhere in our statutes, where robbery is referred to only by name. For years the State has made it a crime with severe penalty to \\\"commit robbery\\\"; (G. L. 1923, Chap. 395, Sec. 4) or to \\\"make an assault with intent to commit robbery\\\" (idem. Sec. 18); or \\\"to enter any dwelling house in the night time with intent to commit robbery\\\" (G. L. 1923, Chap. 397, Sec. 9); or to be a \\\"principal or accessory in any robbery\\\" (idem. Sec. 27); and \\\"Every murder . . . committed in the perpetration of, or attempt to perpetrate any . . . robbery\\\" is murder in the first degree'. (G. L. 1923, Chap. 395, Sec. 1). In the absence of any statutory definition of the word \\\"robbery\\\", it is clear to us that throughout our statutes the legislature used that word to identify the crime of robbery as known to the common law.\\nThe provision in our constitution that the accused shall be informed of the \\\"nature and cause\\\" of the accusation is found not only in the federal constitution but in the constitutions of various States. Whatever else this provision may mean, it certainly signifies that the charge in an indictment shall be sufficient in law to fully and plainly identify the offense with which a defendant is sought to be charged. The accused undoubtedly has the constitutional right to be clearly informed of the accusation against him so that he may defend the same and later plead a conviction or acquittal in bar of a subsequent charge for the same offense, and, further, so that the court, upon conviction, may pronounce sentence according to the right of the case. No simplification of an indictment which deprives an accused of this constitutional guarantee could be sustained by the court. See People v. Farson, 244 N. Y. 413, 417.\\nPublic Laws, 1932, Chap. 1954, is a permissive statute allowing the prosecution, if it so elects, to eliminate some of the technical requirements which have surrounded the practice of criminal law. It was designed to simplify criminal procedure, not to change the substantive law. If the indictment charges an offense known to the common law in technical word or words which admit of but one meaning, and especially where the language used is the same as that of the statute that prescribes the penalty for that offense, the defendant's constitutional guarantee is fully satisfied.\\nThe indictment in the instant case is drawn under the short form authorized by the statute above cited, which declares that it shall be sufficient in a case of robbery to charge that \\\"A B. robbed C. D.\\\" There can be no doubt at this late date as to what crime the words \\\"robbery\\\" or \\\"to rob\\\" identify in criminal law. These words, when used as words of art, include within themselves all the necessary component elements that constitute the offense. When the State charged that these defendants \\\"did rob one William J. Wilbek\\\", the defendants were left with no doubt of the nature and cause of the accusation against them.\\nWhere, as in this case, the indictment is in short form and charges the offense by its technical name without specification of further details, the defendant may secure whatever additional and proper information he may require to prepare for trial by a bill of particulars. It should be noted that Section 3, Clause 7, of the statute provides that, upon motion by the defendant, the court shall \\\"order the prosecution to furnish him with such particulars\\\" of the offense as to enable him to adequately prepare his defense. (Italics ours.) This provision of the statute is designed to fully protect the accused and should be liberally construed.\\nIt is well established that a statute is presumed to be constitutional until the party raising the question of its unconstitutionality proves beyond a reasonable doubt that it is unconstitutional. A reasonable doubt is to be resolved in favor of the legislative action and the act sustained. State v. Smith, 56 R. I. 168, and cases cited. There is a limit to the simplification of criminal pleading, and the legislature may have gone to the verge of it in allowing the form that was used in the case at bar, but we are not satisfied that any constitutional right of the defendants has been violated in this instance.\\nOur decision is that the form for robbery allowed by Public Laws, 1932, Chap. 1954, Section 3, Clause 5, which was used in the indictment in the case at bar, does not violate Article I, Sec. 10 of the Constitution of Rhode Island.\\nJohn P. Hartigan, Attorney General, John J. Cooney, 2nd Asst. Atty. Gen., for State.\\nKirshenbaum & Kirshenbaum, Lester T. Murphy, for defendant.\\nThe papers in the case, with our decision certified thereon, are sent back to the Superior Court for further proceedings.\"}"

ri/5053763.json

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+"{\"id\": \"5053763\", \"name\": \"Francesco Marsella et al. vs. Attillio Simonelli\", \"name_abbreviation\": \"Marsella v. Simonelli\", \"decision_date\": \"1920-07-06\", \"docket_number\": \"\", \"first_page\": \"153\", \"last_page\": \"155\", \"citations\": \"43 R.I. 153\", \"volume\": \"43\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:34:45.976390+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\", \"parties\": \"Francesco Marsella et al. vs. Attillio Simonelli.\", \"head_matter\": \"Francesco Marsella et al. vs. Attillio Simonelli.\\nJULY 6, 1920.\\nPresent: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\\n(1) New Trial. Remittitur.\\nWhere on petition for new trial the justice presiding set the whole verdict aside because he was unable to determine the amount of the excess satisfactorily to himself, it was error for under Gen. Laws, cap 298, \\u00a7 12, it was his duty to determine the amount which appeared to him to represent such excess and fix a remittitur; but in view of the decision of the justice, as bearing on the question of the credibility of plaintiff and from the unsatisfactory nature of all of plaintiff\\u2019s testimony and the grave doubt as to the validity of his claim as a whole, the decision unconditionally granting a new trial will not be disturbed.\\nAssumpsit.\\nHeard on exception of plaintiff and overruled.\", \"word_count\": \"1042\", \"char_count\": \"5981\", \"text\": \"Sweetland, C. J.\\nThe above entitled case is in assumpsit brought to recover for goods alleged to have been sold and delivered by the plaintiffs, Francesco Marsella and his wife Caterin\\u00e1 Marsella, to the defendant, and for money alleged to have been loaned by the plaintiffs to the defendant.\\nThe case was tried before a justice of the Superior Court, sitting with a jury, and resulted in a verdict for the plaintiffs for $816. The defendant duly filed his motion for a new trial. In his decision upon said motion it appears that the justice presiding did not approve of the verdict in so far as it was a finding in favor' of the plaintiffs upon that portion of their claim which was not represented by the checks of the plaintiff Francesco, which checks the plaintiff Francesco testified he gave to the defendant as a method of loaning the money of the plaintiffs to the defendant. In his decision said justice stated that, \\\"A verdict for plaintiff for the debt represented by the checks I should not disturb.\\\" Because of his uncertainty as to the amount of the claim represented by the checks said justice states that he will not attempt to fix the amount of a remittitur and grants the defendant's motion for a new trial. To this decision of said justice the plaintiff excepted and the case is before us upon said exception.\\nSection 12, Chapter 298, General Laws, 1909, provides in part as follows: \\\"A verdict shall not be set aside as excessive by the supreme or superior court until the prevailing party has been given opportunity to remit so much thereof as the court adjudges excessive.\\\"\\nFrom his decision it clearly appears that said justice regarded the verdict as excessive and set the whole verdict aside because he was unable to determine the amount of the excess satisfactorily to himself. When said justice had determined to his own satisfaction that some portion of the verdict was unwarranted, and hence' that the jury's award was excessive, it became his duty under the statute to determine the amount which appeared to him to represent such excess and fix a remittitur. An examination of the transcript indicates that such a task was not without difficulty, nor could said justice hope to reach an entirely satisfactory conclusion, but he had the same data as the jury, to whom upon the evidence he had submitted the claim as to the checks. In the event of another trial the plaintiffs' claim as to money loaned by checks will undoubtedly be submitted to the jury upon much the same evidence as was introduced at this trial. We are of the opinion if the defendant's liability upon the checks is established it can be determined on the evidence, with reasonable certainty, as to the amount due upon that item of the plaintiffs' claim. Many cases are presented to the courts for determination, in which the plaintiff is clearly entitled to a verdict but the evidence does not permit the fixing of damages with exactness. Such causes should be allowed to reach a final determination and questions of doubt as to the amount of the damages may well be resolved in favor of the defendant. We are of the opinion that under the statute as the justice approved the verdict in part only he should have fixed the amount of a remittitur.\\nLee, Boss & McCanna, George J. Sheehan, of counsel, for plaintiff.\\nWashington R. Prescott, Pasquale Romano, for defendant.\\nWe have examined the transcript and find the evidence to be sharply conflicting upon all the matters in controversy. A conclusion as to where the preponderance lies must depend upon where credence is placed in passing upon the conflicting testimony of the plaintiff Francesco and that of the defendant. In his charge to the jury said justice stated as follows: \\\"Briefly, the question of liability here depends on what you determine'as to who is telling the truth and who isn't.\\\" We think that this statement was entirely justified from an examination of the transcript. In his decision the justice has given credit to one portion of said Francesco's testimony and not to the other. If Francesco is discredited with regard to the items of the plaintiffs' claim other than as to the money alleged to have been loaned on checks, he must be held to have disregarded his oath, and, as to a large part of his evidence, to have wilfully testified falsely. From our examination of the evidence it appears to us that the plaintiffs are no more entitled to recover for the money alleged to have been loaned upon checks than upon the other items of their claim.\\nFrom the Justice's point of view, as set out in his decision, we think he was in error in not fixing a remittitur; but in view of his decision, as it bears upon the question of the credibility of the witness Fx-ancesco, and from what appears to us to be the very unsatisfactory nature of all of said Francesco's testimony and by reason of the grave doubt which we have as to the validity of the plaintiffs' claim as a whole, we think there was no error in the decision unconditionally granting a new trial.\\nThe plaintiffs' exception is overruled and the case is remitted to the Superior Court for a new trial.\"}"

ri/5054581.json

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+"{\"id\": \"5054581\", \"name\": \"Lawrence A. Faccenda, Admr. vs. Rhode Island Company\", \"name_abbreviation\": \"Faccenda v. Rhode Island Co.\", \"decision_date\": \"1920-07-08\", \"docket_number\": \"\", \"first_page\": \"199\", \"last_page\": \"201\", \"citations\": \"43 R.I. 199\", \"volume\": \"43\", \"reporter\": \"Rhode Island Reports\", \"court\": \"Supreme Court of Rhode Island\", \"jurisdiction\": \"Rhode Island\", \"last_updated\": \"2021-08-10T22:34:45.976390+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\", \"parties\": \"Lawrence A. Faccenda, Admr. vs. Rhode Island Company.\", \"head_matter\": \"Lawrence A. Faccenda, Admr. vs. Rhode Island Company.\\nJULY 8, 1920.\\nPresent: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.\\n(1) Requests to Charge. Trial.\\nWhere the issues in a case are few and simple, the instructions upon the law applicable to the case to be of value to the jury should, be clear and concise, and the court condemn the action of counsel in such an action in offering forty eight requests to charge involving argumentative, involved, complex and some improper requests for instructions; especially in a case where there had been a comprehensive charge.\\nTrespass on the Case for negligence.\\nHeard on exceptions of plaintiff and overruled.\", \"word_count\": \"874\", \"char_count\": \"5180\", \"text\": \"Per Curiam.\\nThis is an action of trespass on the case brought under the provisions of the statute by the plaintiff as administrator of the estate of his father Carmine Faccenda, to recover damages for the death of said Carmine Faccenda alleged to have been caused by the negligence of the defendant and its servant.\\nThe case was tried before a justice of the Superior Court, sitting with a jury, and resulted in a verdict for the defendant. Said justice denied the plaintiff's motion for new trial and the case is before us upon the plaintiff's exception to the decision of said justice on his motion for new trial and upon-the plaintiff's exceptions to certain rulings of said justice made in the course of the trial.\\nThe plaintiff's claim is that on December 28, 1911, while the deceased, Carmine Faccenda, was a passenger on one of the electric cars of the defendant, because of the defective condition of the electrical mechanism or appliances on said car, fire and smoke enveloped the front portion of said car, terrifying the deceased, Carmine Faccenda, and causing him to jump from the rear platform of said car to the street, whereby said Carmine received fatal injuries. The defendant sought to explain the occurrence and claimed that the presence of the smoke and flame in the front part of said car was consistent with due care on the defendant's part. It produced evidence in support of its contention that the trouble was caused by the breaking of a brush-holder spring in one of the motors on said car and that proper inspection had failed to disclose the latent defect in said spring which caused it to break. It thus became a material issue in the case as to whether the defendant had used proper methods in inspecting the motors on said car, including the brush-holder springs, and whether the breaking of the spring could have been avoided by inspection. The justice presiding, upon the defendant's request, properly directed the jury, over the exception of the plaintiff, to return a special finding on the question, \\\"Could the trouble which caused the breaking of the spring have been avoided by any reasonable and practical inspection?\\\" To this question the jury answered, \\\"No.\\\" Upon the issues in the case the evidence was conflicting, though from an examination of the trans-script it appears to us decidedly to preponderate in favor of the defendant. The jury's verdict has been approved by the justice presiding and we find no error in his decision.\\nJohn P. Brennan, Thomas W. Gilchrist, for plaintiff.\\nAlonzo R. Williams, Charles A. Kiernan, for defendant.\\nWe have examined the numerous exceptions taken to rulings of the justice made in the course of the trial upon the admission of evidence, and upon other matters, and the plaintiff's exceptions to the charge of said justice. We find no merit in any of them.\\nAt the close 9f the case the plaintiff presented to the justice forty-eight requests for instructions to the jury, most of which said justice refused to give and the plaintiff has insisted before us upon his exceptions to these refusals of the justice.\\nThese forty-eight requests cover sixteen pages of the transcript. Some are argumentative, others are involved and complex, and still others, if given, would improperly invade the province of the jury. In so far as they correctly state legal principles applicable to the case they are, in more involved and less suitable form, merely a repetition of instructions contained in the general charge of the justice. If said justice had given these sixteen pages of instructions to the jury, aside from the erroneous nature of some of them, he would have subjected himself to the just criticism of confusing the jury by the prolixity of his charge. We most strongly condemn the action of counsel in presenting this unreasonable number of unnecessary requests. Although the trial lasted for a long time, apparently an unnecessarily long time, the issues were few and simple; and the instructions upon the law applicable to the case, to be of value to the jury, should have been clear and concise. Of such a nature was the comprehensive charge of the justice presiding. The preparation of this mass of useless requests for instructions indicates a misconception on the part of counsel as to the true purpose of a charge, which is to enlighten the minds of the jury.\\nAll of the plaintiffs exceptions are overruled. The case is remitted to the Superior Court with direction to enter judgment for the defendant upon the verdict.\"}"