t DUGAN v. SIMAS. (No. 460.)* (116 A.) continuously posted, copies of his statement accepting the provisions of said act. Section 5, art. 1, c. 831, Public Laws 1912, (Supreme Court of Rhode Island. April 27, known as the "Workmen's Compensation 1922.) 1. Master and servant 412-Finding of non- Where a notice of acceptance of the Work- Act," was in force during the employment of the respondent by the petitioner and at the time of the respondent's injury. That portion of section 5 which relates to the question before us is as follows: "Sec. 5. Such election on the part of the employer shall be made by filing with the commissioner of industrial statistics a written statement to the effect that he accepts the provisions of this act, and by giving reasonable notice of such election to his workmen, by posting and keeping continuously posted 2. Evidence 8-Common knowledge that Ink copies of such statement in conspicuous places Where a notice was continuously exposed to the weather during the working hours, it cannot be determined by inspection that 332 months previous to inspection a date and a signature, both written in ink, were not on the notice; it being common knowledge that ordinary ink exposed to the weather will fade and become obliterated. Appeal from Superior Court, Newport County; Willard B. Tanner, Presiding Justice. Petition by James J. Dugan, employer, for hearing of controversy with Manuel Simas, an injured employee. From a decree dismissing the petition, petitioner appeals. Reversed, and cause remanded, with directions. Mortimer A. Sullivan, of Newport, and Waterman & Greenlaw, of Providence, for appellant. Knauer, Hurley & Fowler, of Providence, for appellee. By an amendment to the Compensation Act, passed and approved since the date of respondent's said injury, an employer who elects to become subject to the act is not required to post copies of his acceptance about the place where his workmen are employed. testified that at the commencement of the It appeared in evidence before the superior court that the petitioner operated a stone quarry in Newport, and that on July 27, 1916, the respondent, while in the employ of the petitioner at said quarry, and less than a week after beginning work, sustained an accidental injury arising out of and in the course of his employment. The petitioner respondent's employment, at the date of said injury, and for a long time before and after, he had kept posted two copies of his statement of acceptance in conspicuous places where the respondent was employed; that one of said notices was posted on the inside PER CURIAM. This is the petition of an of the door of the toolhouse where the employer, filed in accordance with the Work-respondent and the other workmen workmen went men's Compensation Act, praying that the to obtain and to return their tools; that superior court decide the controversy be tween him and the respondent, his former employee, who had been injured in the course of his employment by the petitioner. The respondent in his answer admits that the petitioner filed with the Commissioner of Industrial Statistics a statement that he accepted the provisions of said act, but denies that the petitioner gave reasonable notice thereof to the respondent or that he posted, and kept posted, copies of said statement in conspicuous places about the place where his workmen and the respondent were employed. Said petition was heard before a justice of the superior court who entered a decree denying and dismissing the petition. The matter is before us upon the petitioner's appeal from said decree. At the hearing in the superior court the controversy was entirely with reference to whether the petitioner had posted, and kept the other was posted on the inside of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes worked at said quarry at the time of the accident to the respondent and that they had not seen said posted copies. The respondent and all but one of his witnesses testified through an interpreter, and each said that he could not read English. Said doors were removed from the buildings and at an adjourned hearing were brought before the superior court as exhibits. To one of these doors an alleged copy is still attached and appears to have been there for a long time. It is in testimony that the copy was torn from the other door shortly before the hearing. The place where it was attached is apparent, however, and some remnants of it still remain about the nails that are yet there. The justice very properly disregarded the respondent's testimony that the petitioner had not attempted to comply with the requirements of the act by posting two notices which were at least partial copies of his acceptance. from what appears to have been the action of water running over said pasteboard, portions of its former surface have been removed, together with the printed matter and whatever else may have been upon such portions. This is particularly true with reference to the space for signature where the original outer surface of the card has entirely disappeared. There was no evidence before the superior court to support the finding that the two notices in question which were posted on said doors throughout the period of the respondent's employment were not exact copies of the petitioner's statement of his election to become subject to the provisions of the act and there was the positive testimony of the petitioner, who has not been impeached in any way, and whose credibility said justice does not question, that said notices were exact copies of said statement and that he himself signed them. The Workmen's Compensation Act provides that the findings of fact of the superior court shall be conclusive and that a person, aggrieved by the final decree of that court, on an appeal to this court is restricted in his appeal to a review of questions of law. In the early case of Jillson v. Ross, 38 R. I. 145, 150, 94 Atl. 717, 718, the court said: "Under the Rhode Island Workmen's Compensation Act it is contemplated that the decision of the justice of the superior court and the decree of that court shall be based upon evidence and not arbitrarily made. If the record discloses that a finding of fact is entirely without legal evidence to support it, such findviewed by this court upon appeal and set ing amounts to an error of law and will be re aside." This construction of the act with reference to appellate proceedings has since been followed by this court. [1, 2] From an examination of the notice posted on the door and exhibited to him, the justice said that he could not see thereon the signature of the petitioner nor the date, and for that reason, alone, he held that the petitioner had not posted copies of his acceptance. Said door is before us as an exhibit and we have examined it. The alleged copy is on a piece of thick pasteboard attached to the door by large, flat-headed nails or tacks. The body of this notice was printed, and, although now partly obliterated, there is no question that at the time of the respondent's employment it was an exact copy of the body of the acceptance. On this notice, as originally prepared, there were spaces in which it was intended that the date and the signature of the employer should be written. The sole question raised by the determination of said justice is as to whether the date and the signature of the petitioner were on this notice at the time of the respondent's employment and injury. It was nearly three years from the date of said injury to the time of hearing. During that period said notice had been exposed to the action of the elements. throughout the working hours at the quarry. As a result of such exposure, the pasteboard had become warped and its surface marred, weather-beaten, and rough. Since the hearing in the superior court the notice has been kept under cover and no question is raised but that its condition is the same as it was at said hearing. In the circumstances it cannot now be determined by inspection whether or not 331⁄2 months before the hearing in the superior The cause is remanded to the superior court the date and the signature, both writ- court, with direction to proceed and fix the ten in ink, had been upon the notice. It is a compensation due the respondent in accordmatter of common knowledge that writing in ance with the terms of the act, and to enter ordinary ink exposed to storm, dampness, its decree in accordance with this opinion and sunlight for a long period will corrode, and its determination as to the amount of The decree of the superior court dismissing the petition is reversed. In any further proceedings on this petition the question of whether the petitioner elected to become subject to the provisions of said act by filing a statement of his election and by giving legal notice of such election is concluded in favor of the petitioner. It appears in the transcript that by reason of a stipulation between the parties the respondent claimed that the scope of the hearing in the superior court was restricted. Nothing has been presented to us, however, which indicates that all the matters in dispute between the parties are not here for determination. (116 A.) SIMAS v. DUGAN. (No. 5560.) * (Supreme Court of Rhode Island. April 27, 1922.) Master and servant 351-Common-law action by employee stayed until determination of petition under Workmen's Compensation Act. Where for the same cause of action there was pending both a petition by the employer for settlement with an injured employee under the Workmen's Compensation Act and a common-law action by the employee, the proper practice was to stay the trial of the commonlaw action until a final determination upon the petition. Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge. Action by Manuel Simas against James J. Dugan. Judgment for plaintiff. On appeal, defendant's motion to show cause why the complaint should not be dismissed was granted. Knauer, Hurley & Fowler, of Providence, for plaintiff. Mortimer A. Sullivan, of Newport, and Waterman & Greenlaw, of Providence, for defendant. It is apparent that the course of the trial and the rulings of the justice presiding were other justice of the superior court who had affected by the prior determination of the heard said petition of the employer. When there is pending in the superior court both the petition of an employer under the Compensation Act for the determination of matters in dispute between him and his injured employee, and also a common-law action of the employee against the employer to recover damages for the same injury, it appears to us that the proper practice would be to stay the trial of the common-law action until there is a final determination upon the petition. On May 3, 1922, at 10 o'clock a. m., the plaintiff may appear before us and show cause, if any he has, why an order should not be entered remitting this case to the superior court with direction to dismiss the same with costs for the defendant. (44 R. I. 253) SWINEHART TIRE & RUBBER CO. v. BROADWAY TIRE EXCHANGE, Inc. (No. 5564.) (Supreme Court of Rhode Island. April 20, 1922.) had burden of proof. PER CURIAM. This is an action of tres- I. Sales 439-Buyer seeking to recoup for pass on the case against the former employ-breach of warranty in seller's action for price er of the plaintiff to recover damages for personal injuries alleged to have been received in the course of the plaintiff's employment by the defendant through the negligence of the defendant. The matter in its essential features has already been considered by us in Dugan v. Simas (Equity No. 460) (R. I.) 116 Atl. 753, rescript filed April 27, 1922. Dugan v. Simas was an appeal from the decree of the supe rior court entered on the petition of said employer, this defendant, brought under the provisions of the Workmen's Compensation Act (Pub. Laws 1912, c. 831). This court has reversed said decree and determined that the employer had elected to become subject to the provisions of said act and that thereunder the employee, this plaintiff, had waived his right of action at common law to recover damages for personal injury. This action at law was tried before a justice of the superior court sitting with a jury, subsequent to the entry of said decree in the superior court but prior to the determination of the appeal by this court. The cause is here upon the defendant's bill of ex ceptions. In seller's action for balance of purchase price, in which buyer sought to recoup for breach of warranty, the burden of proof on is sue as to whether there was a breach of warranty was on the buyer. 2. Sales 445 (4)-Whether goods for which seller sought to recover were defective held for jury. In seller's action for price of tires, where defendant buyer sought to recover for breach tires were defective held for the jury. of warranty, the question as to whether the 3. Sales 445 (5)-Whether buyer complained of defects within reasonable time held for jury. In seller's action for price in which buyer claimed the goods to have been defective, whether buyer complained that goods were defective within a reasonable time, as required by Gen. Laws 1909, c. 263, § 9, held for the jury. 4. Sales 77(1)-Buyer held not entitled to credits allowed its customers in making adjustments. dealer gave retail dealer privilege of making Where contract of sale of tires to retail At the trial evidence was again presented with instructions to be furnished by" seller, the adjustments on defective tires "in accordance upon the issue of whether or not said employ-retail dealer was not entitled to credits allowed er had elected to become subject to the pro- customers in making adjustments made without visions of the Workmen's Compensation Act. I sending the defective tires and detailed report For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the adjustments to seller as required by in- refusal of the trial court to grant to the destructions sent the retail dealer. fendant a new trial. 5. Sales77(1)—Retail dealer held not entitled to credit for money expended for advertising. Under contract for sale of goods to retail dealer entitling dealer to one-half of the money expended by it for advertising, but requiring all such advertising to be submitted and approved by the seller, the dealer was not entitled to credit for money expended for advertising not so submitted to or approved by seller. 6. Sales 2-Contract made in state in which order was accepted. Where order given in the state was accepted by foreign corporation in other state, the con tract was made in the other state. 7. Corporations 642(42)-Foreign corporation which delivered goods on order given salesman within the state held not "doing business" in the state. Where an Ohio corporation's salesman took an order within the state for a bill of goods delivered on such orders, the contract was executed by the buyer in this state and by the corporation at its home office in Ohio, and was made in the latter state, and hence it was not "doing business" within this state, so that it was not barred from recovery by Gen. Laws 1909, c. 300, § 42, because it had not appointed an attorney for service of process. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Doing Business.] 8. Abatement and revival 84-Want of capacity to sue waived by pleading to merits. That a foreign corporation has not capacity to sue because it has not appointed an agent for service of process should be pleaded in abatement, and is waived by pleading to the merits. Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge. Action by the Swinehart Tire & Rubber Company against the Broadway Tire Exchange, Inc. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted to Superior Court with directions to enter judgment on verdict. Lyman & McDonnell, Thomas F. I. McDonnell, Richard E. Lyman, and Arthur J. Levy, all of Providence, for plaintiff. It is admitted that the defendant is indebted to the plaintiff. There appears to be no question as to the price which the defendant agreed to pay or as to the amount of goods delivered, but the defendant contends that it is entitled to certain credits not given by the plaintiff and also entitled to recoup for breach of warranty. The defendant contends that the damages awarded are excessive, and that on this ground the defendant was entitled either to a new trial or a reduction of the verdict. [1-3] The first exception is to the refusal of the trial court to grant a new trial. The goods were warranted to be free from defects and merchantable. A short time after receiving the goods the defendant wrote to the plaintiff saying, "We are pleased with the goods." Five or six months later, when payment was demanded, the defendant complained for the first time that a portion of the goods were defective. The tires were incased in paper wrappers, and could not be examined without removing the wrappers. The burden was on the defendant to establish a breach of warranty. It was a question for the jury to determine whether the goods were defective, and the jury were permitted to pass also upon the question as to whether the defendant within a reasonable time notified the plaintiff that the goods were defective. The jury evidently decided one or both of these questions adversely to the defendant. We think the jury would have been warranted in finding from the evidence that the goods were not defective, and also that the defendant's complaint as to defects in the goods was not made within a reasonable time. G. L. 1909, c. 263. Section 9 provides : "But if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise of warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor." [4] The defendant contends that it is entitled to certain credits which the defendant allowed to customers in making adjust Frank H. Wildes, of Providence, for de- ments relative to defective tires. fendant. The contract between the parties contained the following provision: * "The first party (plaintiff) covenants and agrees with the second party (defendant) as follows, to wit: To give the second party the privilege of making adjustments on defective Swinehart tires in accordance with in$3,-structions to be furnished by the home office of the first party. It is understood however that the first party reserves the right to withdraw said privilege at any time by giving the second party notice of its intention to do so. In the RATHBUN, J. This is an action of assumpsit to recover the balance of the purchase price of certain automobile tires and tubes. The trial in the superior court resulted in a verdict for the plaintiff for $3,540.97. The case is before this court on defendant's exceptions to the admission and exclusion of testimony, to the refusal of the trial court to dismiss the case, and to the (116 A.) event of any tires or tubes originally sold by the party of the second part and later adjusted by the party of the first part direct to the consumer the party of the first part is to pass credit to the party of the second part covering the difference between the second party's cost of said adjustment and the price collected from the consumer." executed by the defendant at Providence, and by the plaintiff at its home office in Ohio. The contract was made in Ohio. The statute has no application. Furthermore, want of capacity to sue should be set up by a plea in abatement, and is waived by pleading to the merits. Weaver Coal Co. v. Co-Operative Coal Co., 27 R. I. 194, 61 Atl. 426. We find no merit in the exceptions to the admission and exclusion of testimony, and we find no reason for disturbing the verdict which has been approved by the trial court. All of the defendant's exceptions are overruled, and the case is remitted to the superior court, with directions to enter judgment on the verdict. The "instructions furnished by the home office" were a part of the contract. Said instructions directed the defendant, on adjusting a claim with a customer relative to a defective tire, to make a detailed record of the facts, send a copy of this record to the home office not later than the following day, and ship to the home office once in 10 days the used tires on hand received from the customers in making adjustments. The defendant sent no notice or reports of adjustments; neither did he ship said used tires to the CUNNINGHAM v. J. SPAULDING & SON'S home office. He made no claim for credits for adjustments until after the plaintiff sought to collect the balance due the plain- (Supreme tiff. [5] The defendant contends that it should have been given credit for one-half of the money expended for advertising. It was agreed between the parties that the defendant would advertise Swinehart tires, and that the plaintiff would credit the defendant with one-half the money expended in such advertising, but not to exceed either $500 or 1 per cent. of the net business received from the defendant by the plaintiff. The contract contained language as follows: "All such advertising to be submitted and approved by the party of the first part"that is, the plaintiff. No advertising was submitted to or approved by the plaintiff. The defendant having failed to submit the advertising to the plaintiff, and thereby having failed to get said advertising approved by the plaintiff, the defendant was not entitled to credit for money expended for advertising. The trial court did not err in refusing to grant the defendant's motion for a new trial. [6-8] The eighth exception is to the refusal of the trial court to dismiss the case. When the testimony was concluded the defendant moved that the case be dismissed, and argued that the plaintiff was a foreign corporation doing business within this state, and attempting to enforce in the courts of this state contracts made within the state, and that the plaintiff, not having appointed a resident attorney with power to accept process, was barred from recovery by the provisions of section 42, c. 300, G. L. 1909. There was no proof that the plaintiff ever did business within this state as contemplated by said chapter 300. The plaintiff's salesman came to Providence and took an order for a bill of goods. The contract between the parties was Co. (No. 1758.) (80 N. H. 335) Court of New Hampshire. Strafford. March 7, 1922.) Master and servant 124 (5)-Injury by nail, not discoverable by ordinary inspection of box, held not actionable. Where an employee handling boxes was injured by a nail, projecting from the side of a box in a place such that it would not have been discovered by an ordinary inspection on account of the dark color of the box and the of a failure to inspect the box for defects. nail, his employer was not liable, regardless Transferred from Superior Court, Strafford County; Marble, Judge. Action by Benjamin R. Cunningham, against J. Spaulding & Son's Company. Verdict for plaintiff. Transferred on denial of defendants' motion for nonsuit, subject to exception. Exception sustained. Verdict set aside; judgment for defendants. Case, for negligence. Trial by jury, and verdict for the plaintiff. The defendants were subject to, and had accepted the provisions of Laws 1911, c. 163. The plaintiff claimed that he was injured by being cut upbox. The facts appear in the opinion. The on a rusty nail protruding from a wooden defendants' motion for a nonsuit was denied, subject to exception. Murchie & Murchie and Alexander Murchie, all of Concord, for plaintiff. Lucier & Lucier and Alvin J. Lucier, all of Nashua, for defendants. PLUMMER, J. The plaintiff at the time the accident occurred was engaged in soaking shoe counters in a tank. The counters were brought on trucks to the soaking tank packed in wooden boxes 12x16x6 inches. The sides of the boxes were one-half of an For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |