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Action by Emily Hutchings against the Bay State Street Railway Company. Motion for nonsuit was granted, and plaintiff brings exception. Exception overruled.

Max Levy, of Newport, and Lewis A. Waterman, Charles E. Tilley, and Waterman & Greenlaw, all of Providence, for plaintiff.

Sheffield & Harvey, of Newport, for defendant.

PER CURIAM. This is an action of trespass on the case to recover for personal injuries suffered by the plaintiff, alleged to have resulted from the negligence of the defendant's servant. The case was tried before a justice of the Superior court sitting With a jury. At the Conclusion Of the plaintiff’s evidence said justice granted the defendant’s motion for a nonsuit. The case is before us upon the plaintiff's exception to said action of the justice.

[1] It appears that upon July 30, 1916, the plaintiff, an elderly woman, was walking in a northerly direction upon the westerly sidewalk of the Main Road, so called, in Tiverton; that the defendant's Car track between Newport and Fall River is located on the easterly side of the roadway of said Main Road; that the plaintiff, desiring to cross to the easterly sidewalk, stepped into the roadway, and proceeded, as she testified, “ordinary fast” to cross directly towards the opposite side. When about 16 feet from the defendant’s car track she looked toward the south, and saw an electric car of the defendant approaching from that direction. Without looking again towards said approaching car, she went upon the defendant's track, and was struck by Said car before she had passed over the easterly rail of said track; the latter fact clearly appears from her testimony in direct examination. Upon crossexamination there is some uncertainty as to her testimony in that regard. Whatever may have been her position, however, when she was struck, the event demonstrates that the plaintiff did not have the right of way, and in the exercise of ordinary prudence she should not have attempted to Cross the track. If She had looked toward Said Car immediately before she stepped Out of a place of safety into a place of danger upon or near said track, her peril would have been apparent to her. The justice of the Superior court was warranted in holding that the plaintiff was guilty of negligence as a matter Of law.

[2] The plaintiff alone testilled concerning the accident. In her testimony there appears no circumstance which Supports a Claim Of negligence on the part of the defendant's servant. The plaintiff was aware of the approaching car. There is no testimony as to the speed of the car, or that the defendant's

Imotorman failed to act with reasonable diligence, when it should have been apparent to him that the plaintiff, in disregard of her OWn Safety, Was about to go upon the track.

The plaintiff's exception is overruled. The case is remitted to the superior court, with direction to enter judgment upon the nonsuit.

T. W. LIND CO. V. NU–FASTENER CO. (No. 5275.)

(Supreme Court of Rhode Island. Dec. 19, 1919.)

1. EXCEPTIONS, BILL of 3~43(1)–FILING OF BILL OF EXCEPTIONS AND TRANSCRIPT TOO LATE. In action of assumpsit, the filing of a transcript in the office of the clerk of the superior court within 10 days after the time limited by the court's order, granting extension, pursuant to Gen. Laws 1909, c. 278, § 4, is not a proper compliance with the statutory provisions, relating to bills of exception, and the trial justice properly refused to allow bill and transcript, plaintiff being in default (chapter 298, § 18). 2. CourTS 3-'90(5)—CHANGES IN RULES OF PROCEDURE. Changes in rules of procedure, which have been long settled, and which have been applied in numerous cases, should, if desirable, be made by legislative rather than by judicial action.

Action by the T. W. Lind Company against the Nu-Fastener Company. Verdict for plaintiff was on defendant’s motion set aside and a new trial ordered. The trial judge refused to allow plaintiff's bill of exceptions and transcript, and the case is now before the Supreme Court on plaintiff's petition to establish the truth of the bill of exceptions, etc., under Gen. Laws 1909, c. 298, § 21. Petition denied.

Wilson, Churchill & Curtis, of Providence, for plaintiff.

Edward C. Stiness, Daniel H. Morrissey, and Christopher J. Brennan, all of Providence, for defendant.

PER CURLAM. The original action in this case was in assumpsit. After trial by a jury, a Verdict was found in favor of the plaintiff, which Was subsequently on motion of the defendant set aside, and a new trial was ordered by the trial justice.

The plaintiff duly filed notice of its intention to prosecute its bill of exceptions, ordered a transcript of the testimony, and made the deposit therefor as required by the provisions of chapter 298, § 17, Gen. Laws 1909. The court stenographer was directed by the court to deliver the transcript of testimony to the plaintiff or its attorney on or before February 21, 1919, and it was also ordered that the bill of exceptions and transcript of testimony should be filed in the office of the clerk of the superior Court on Or before March 3, 1919. Thereafter, on the 13th of February, 1919, the time for filing the tranScript of testimony was extended by the trial court to April 2, 1919, and on April 1, 1919, the time for filing the transcript in the of— fice of the clerk of the court was extended to April 9, 1919. The court stenographer delivered the transcript to the plaintiff before Said 9th day of April, but the transcript was not filed in the office of the clerk on or before April 9th, but was filed by the plaintiff With its bill of exceptions on April 19, 1919. At the hearing on the question of the allowance of the bill of exceptions and tranScript, upon objection thereto by the defendant, the trial justice refused to allow the bill and transcript, for the reason that the transcript had not been filed on or before April 9th. The case is now before this court on the petition of the plaintiff to establish the truth of the bill of exceptions, etc. Chapter 298, § 21, Gen. Laws. The sole question is: Was the filing of the transcript in the office of the clerk of the Superior court within 10 days after the time limited by the court for filing the same a proper, compliance with the statutory provisions relating to bills of exceptions? [1] In the case of McLean Co. v. WheelWright, 31 R. I. 562, 78 Atl. 261, which was decided by this court in 1910, it was held in an action at law that, Where an extension of time has been made for the filing of a transcript, the terms of the Order of extension must be strictly complied with, and that the transcript must be filed in court on or before the date fixed for such filing by the trial justice, or the party would be in default. Many cases, to which it is unnecessary to refer more particularly, have been before this court since the decision above mentioned was rendered, and the decision referred to has been affirmed and followed. The phaintiff, now seeks to have this long line of decisions Overruled and the established practice of years changed. In Support of its contention it cites the Case of Hawkins v. Co-operative Building Association, 33 R. I. 39, 80 Atl. 183, in which this court construed certain provisions of the statutes relating to appeals in cases in equity (chapter 289, § 26, Gen. Laws), and argues that, in view of the similarity of the statutory provisions for appeals in equity causes and the procedure by bills of exceptions, it was the intention of the Legislature to provide substantially the same procedure in law and equity for taking a case to this Court for review. In the Hawkins Case it was held that in equity appeals, in which the time for filing the transcript has been extended by the court, the transcript may properly be filed

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(108 A.)

at any time within 10 days after the expiration of the extended period. It is true that the authority to extend the time for filing the transcript, both in law and equity causes, is derived from the same statute (chapter 278, § 4, Gen. Laws), and that the order for the extension in each class Of Cases may be and usually is made in the same form. In the circumstances it is argued that to hold in law cases the transcript must be filed within the extended period, Whereas in equity causes the transcript need not be filed until 10 days thereafter, is inconsistent, and creates unnecessary confusion in appellate procedure. Although this argument is not without Some force, yet from a consideration of the entire provisions relative to the two classes of appeals we think that sufficient reason is found therein for the decisions above referred to. The main provisions for appeals in law and equity are found in different parts of the statutes, and the procedure prescribed in the two 'cases differs in many respects. In the appeal in equity, which must be taken within 30 days after entry of final decree, the appellant must file his claim of appeal, with the reasons thereof, in the office of the clerk of the Court, and at the Same time file a request to the court stenographer for such transcript as may be required, and make deposit; in the procedure by bill of exceptions, the appellant, within 7 days after Verdict or notice of decision of a motion for new trial, must file a notice of his intention to prosecute a bill of exceptions, together with a request for the transcript and deposit, and in the Case of an extension of time for filing his transcript the statute provides that Within 10 days after the expiration of such extended time he shall file in the Office of the clerk of the superior Court his bill of exceptions, in which he shall state separately and clearly the exceptions relied upon. In the equity cause the reasons of appeal must be filed first, and without reference to the transcript; Whereas in the appeals at law the preparation and delivery to counsel in the first instance, and in the case of an extension of time the filing Of the same in court, is antecedent to the filing of the bill of exceptions, and in this latter case the time limit set by the court must be strictly observed. The distinction between the two classes of appeals was approved by this court in the Case of Allen & Reed, Inc., v. Russell, 81 Atl. 438, decided subsequent to the decision in the McLean Case, and affirmed in 33 R. I. 422, 82 Atl. 129. [2] The Construction of the statutes In question and the determination of the difference in the requirements in regard to the time of filing the transcript in the two Classes of appeals was thus established, and the practice has since been affirmed in numerous Cases, and Counsel in this case must have known of the rule. It is desirable, as argued, that the procedure by appeals should be made reasonably simple and as nearly uniform as is consistent with the different character of the appeals; but, as the construction of the statutes in question has been made by the court for reasons Which in the Opinion of the Court warranted Such Construction, we see no sufficient reason for reopening the question of Construction and changing without adequate and compelling cause rules of procedure which have been long settled and which have been applied in numerous Cases. If a change is desirable, such change should be made by legislative rather than by judicial action. As the plaintiff is in default (chapter 298, § 18), there was no error in the action of the trial court, and the petition of plaintiff is therefore denied and dismissed.

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6. PRINCIPAL AND AGENT 6-103(13)—DIsPoSITION OF MOTORTRUCK NOT WITHIN APPARENT AUTHORITY OF AGENT. That the manufacturer of motortrucks, employing an agent to establish sale agencies, did not remove his number plate from or attach truss rods to the sample truck the agent drove when sent to a town to establish an agency, had no tendency to prove the agent had any authority to dispose of the truck by a trade to the prospective sales agent, so that the transfer by agent did not terminate title as within the apparent scope of authority.

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Action by Guy S. Davison against Norman E. Parks and others, resulting in directed Verdict for plaintiff, and defendants except. Exceptions Overruled.

Trover for a truck. The defendant’s evidence tended to prove that the plaintiff, a manufacturer of Longford trucks, employed one Jordan to establish an agency for the sale of these trucks in the town of Colebrook, and authorized him to sell the truck in question for $300. Jordan traded it to the defendants for an automobile.

Frank P. Tilton, of Laconia, for plaintiff. Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendants.

YOUNG, J. [1] The questions raised by the defendant's exception are whether there is any evidence tending to prove: (1) That the plaintiff expressly authorized Jordan to trade the truck for an automobile, or (2) that Jordan had implied, or (3) apparent authority to make the trade, or (4) that it is the custom in the automobile business for those who are employed to sell trucks to trade them for other property. 2 C. J. 559, 560. The only evidence tending to prove that Jordan was expressly authorized to dispose of the truck is his testimony that he was authorized to sell it for $300. If “to sell” is given its ordinary meaning, Jordan's only authority, in so far as disposing Of the truck is COncerned, was to sell it for cash. Taylor & Farley Organ Co. v. Starkey, 59 N. H. 142; 21 R. C. L. 867. As there is no evidence tending to prove that that was not the sense in which the plaintiff used “to sell,” it must be held that Jordan was not expressly authorized to make the trade in question. .

[2, 3] An act an agent is not expressly authorized to do may bind his principal if it is one that is necessary to enable him to effectuate the purpose for which the agency is established. For example: An agent for the sale of spirituous liquor may buy liquor on the credit of the town if the town fails to supply him with funds for that purpose. Backman V. Charlestown, 42 N. H. 125. The test, therefore, to determine whether author

&o For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(108 A.)

ity to make the trade in question was incidental to Jordan's authority to establish an agency for the sale of trucks is to inquire whether Jordan could effectuate the purpose for which he was employed—to establish an agency for the sale of trucks in Colebrook— without furnishing the defendants with a sample truck, not whether it would be necessary for them to have a sample if they were to do a successful business. While it may be true that the defendants could not make the agency a success without a truck to show prospective customers, it was no more necessary in order to establish the agency that Jordan provide them with a sample at their price than that he should agree that they might fix the price at which trucks should be sold. In other words, while it was essential that the defendants have a sample truck, it was no more and no less necessary that Jordan should furnish them with it at their price than that he should fix, the price at which trucks might be sold. In short, if it can be found that Jordan had implied authority to make the trade in question, it can be found that he had implied authority to fix the price at which a truck might be sold, regardless of the price fixed by the plaintiff. It cannot be found, therefore, that Jordan had implied authority to trade the truck for an automobile from the mere fact he was employed to establish an agency for the sale of the plaintiff’s trucks. [4] When it is said that a principal is bound by an act his agent was not expressly authorized to do, because it was within the apparent scope of his authority, by it is intended that the act is one the principal held the agent out as having authority to do. Atto v. Saunders, 77 N. H. 527, 529, 93 Atl. 1037. In short, by it is intended that the principal has either So conducted his business as to give third parties the right to believe that the act in question is one he has authorized his agent to do, or that it is one agents in in that line of business are accustomed to ~do. 2 C. J. 573; 21 R. C. L. 867. - The defendants do not contend that it is the custom in the automobile business for those who are employed to sell trucks to trade them for other property; consequently the test to determine whether the trade in question was within the apparent scope of Jordan's authority is to inquire whether the plaintiff is shown to have done something which he ought to have known might induce the defendants to think Jordan was authorized to trade the truck for an automobile. The defendants say they were misled by the fact the plaintiff sent Jordan to Colebrook to establish an agency for the sale of those trucks without removing his number plate

from the truck, and without attaching the truss rods to it. [5, 6] If it is true that the defendants relied on those facts, it does not necessarily follow that their exception can be sustained, for, as we have seen, they must show not only that they were misled by the acts of which they complain, but also that the plaintiff ought to have anticipated that they would be. The question, therefore, is whether the plaintiff ought to have anticipated that, if he did the acts of which the defendants COmplain, it might lead them to think Jordan was authorized to dispose of the truck in the Way he did. It is obvious that the fact the plaintiff did not remove his number plate from and attach the truss rods to the truck Jordan drove when he sent him to Colebrook to establish the agency have no tendency to prove that Jordan had any authority to dispose of the truck. It cannot be found, therefore, that the plaintiff ought to have anticipated when he did these things that the defendants might think Jordan was authorized to make the trade in question. Defendants’ exception Overruled.

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2. INSURANCE 6-755(4)—WAIVER BY FRATERNAL INSURER OF BY-LAW AS TO PAYMENT OF ASSESSMENTS. Waiver of a by-law of a fraternal insurer as to monthly payment of assessments may be established by evidence showing that it had been abandoned, so that it was no part of the contract of insurance, or by evidence of a course of conduct which would estop the insurer from setting it up. 3. INSURANCE 3-819(3)—Ev1DENCE OF WAIVER OF BY-LAW AS TO PAYMENT OF ASSESSMENTS, BY FRATERNAL INSURER. In view of the by-laws in force up to the time of the death of a member of a fraternal insurance order, evidence held to warrant a finding that the insurer had waived compliance with that by-law requiring monthly payments of assessmentS.

Transferred from Superior Court, Coös County; Marble, Judge.

Action on policy of life insurance issued to Frank Langlois by Josephine Langlois against the Association Canado-Americaine. Subject to exception, nonsuit was ordered on defendant's engagement that if exception were sustained, there should be judgment for plaintiff. Transferred to Supreme Court. Judgment for plaintiff.

Goo For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

108 A.—19

The defense was that the insured had not complied with the by-law requiring him to pay $2.66 each month and that he was under suspension for nonpayment of the assessment or dues for December, 1916. Upon the defendants' motion for nonsuit, the plaintiff claimed there was evidence of a waiver of the by-law requiring monthly payments.

Ovide J. Coulombe, of Berlin, for plaintiff, Joseph E. Lachance, of Manchester, George F. Rich, of Berlin, and Robert W. Upton, of Concord, for defendants. PARSONS, C. J. [1, 2] The by-law of a fraternal insurance company such as is here relied upon is a stipulation of the contract which may be waived. Downs v. Knights of Columbus, 76 N. H. 165, 80 Atl. 227. Such waiver is proved by evidence tending to show the stipulation had been abandoned so that it was no part of the contract sued upon (Salvail v. Foresters, 70 N. H. 635, 50 Atl. 100; Dunn V. Ins. Co., 69 N. H. 224, 39 Atl. 1075) or of a course of conduct which would estop the defendant from now setting it up (Lally v. Ins. Co., 75 N. H. 189, 72 Atl. 208; Appleton v. Ins. Co., 59 N. H. 541, 546, 47 Am. Rep. 220). . Upon the latter proposition the case cannot be distinguished from Lally V. InS. CO. [3] Although the by-law required payment of the monthly dues before the last of each month, the evidence was that in 1916 the officer designated by the defendants to collect the dues accepted payment from Langlois of two months at a time, one month being Overdue, three times in 1916 and five times in 1914 and 1915, without objection, remonstrance, or suggestion that he Was in any Way in default. From this evidence the jury would be justified in inferring that the insured had been led to believe that payment once in two months was all that was necessary to keep the policy in force. Having by their course of business authorized this belief in the insured, reasonable men might conclude the insurers could not equitably be permitted to insist upon the forfeiture or suspension which would follow a strict application of the by-law. Langlois paid his November assessment. The time permitted for the payment of the assessment for January, 1917, had not expired. Payment of the December assessment any time in January would have been a compliance with the contract for December such as the defendants accepted for August, May, and March, 1916, and for five other months in the two years preceding. This evidence the defendants attempt to answer by calling attention to by-law No. 201:

“Any member suspended for the nonpayment of his assessments to the insurance fund or con

tributions to the other funds, may be reinstated if he shall comply with the following conditions: During the first, month following his suspension by paying all of his arrearages; provided he is in good health when making such payment.”

If this by-law applied, it is not clear that it would not be for the jury upon the testimony of the collector to say whether the month late payments of which there were so many were made to secure reinstatement after suspension or understood to be made and accepted as a compliance With the COntract. But this by-law was not in force in December, 1916, but is part of the amended by-laws which went into force January 1, 1917, and necessarily relates to payments becoming due after its adoption. The only payment thereunder, the January assessment, Was not in default until after the assured's death, so that the amended by-laws are without application.

Article 199 of the by-laws of 1913 in force in 1916 is:

“Any member, suspended for arrearages, or for being behind in payment of supplementary assessments of fines, may be reinstated if he shall discharge all his debts within the 60 days following his suspension and declare upon his word of honor that he is in good health.”

There is no evidence which has any tendency to prove that in making the over-due payments Langlois understood he was securing reinstatement under this by-law. The evidence tends to prove the contrary. The jury could therefore find that from the course of business permitted by the defendants payment Once in two months was a compliance With the contract to the satisfaction of the defendants. It was the duty of the secretary treasurer to whom Langlois paid to Collect the dues of members for the High Court issuing the policy. Article 142. This made him the agent of the insurer for the collection of the insurance assessments. Article 144 provides that he shall have no right to accept any payment from a member Whose name has been stricken from the rolls, but Langlois' name was not stricken from the rolls. He was not entered as suspended. He was suspended, if at all, by force of the by-law (192) providing:

“All members who shall not have paid their assessments on the last day of the month shall be ipso facto suspended.”

There was evidence this by-law was waived to the extent of granting an additional month's credit, and the exception to the order of nonsuit is sustained. According to the stipulation of the case, there should be judgment for the plaintiff. All concurred.

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