Brickle v. Quinn

Decision Date05 July 1939
Docket NumberNo. 698.,698.
PartiesBRICKLE et al. v. QUINN.
CourtRhode Island Supreme Court

Actions of trespass on the case for negligence by Bella Brickie and by her husband against James W. Quinn, C. T., for injuries to wife as a result of falling into a hole or depression in the sidewalk and, as to the husband, for loss of wife's services and expenses. Defendant's petition for writ of certiorari to the superior court, to quash the action of a justice of that court in allowing plaintiff in each of the actions to amend the declaration after trial which resulted in a disagreement of the jury, was granted.

Writ quashed and papers sent back to the superior court.

John R. Higgins, Louis M. Macktaz, and Sidney Silverstein, all of Woonsocket, for plaintiffs.

John J. Mee, City Sol., of Woonsocket, for defendant.

CONDON, Justice.

This is a petition by the defendant for a writ of certiorari to the superior court to quash the action of a justice of that court in allowing the plaintiff, in each of the actions at law pending in that court, to amend the declaration therein after a trial which had resulted in a disagreement of the jury.

The cases pending in the superior court are actions of trespass on the case for negligence. The plaintiffs are husband and wife. Bella Brickie has brought suit for personal injuries which she alleges that she suffered as a result of falling into a hole or depression in the sidewalk of Harris avenue in the city of Woonsocket. Her husband, Hyman Brickie, is suing for the loss of his wife's services and the expenses to which he has been put as a result of her falling on said sidewalk. For convenience we shall hereinafter refer only to the wife's case.

It appears from the record that the plaintiff alleged in her declaration, as originally filed, simply the duty of the city to keep and maintain Harris avenue safe for travel, the neglect of that duty in that it permitted a hole or depression to be and remain in the sidewalk of said avenue, and her resulting injury by reasbn of such neglect.

The accident was alleged to have occurred on the night of July 20, 1935. Plaintiff's writ was dated March 21, 1936, and together with her declaration was filed in the superior court on April 6, 1936. The case was assigned for trial several times in 1936 and also in 1937, but was never reached for trial. Finally, after another ineffective assignment in January 1938, the case was then tried to a jury on May 12, 13, 16, 17, and 18, 1938, and resulted in a disagreement.

On July 1, 1938, the plaintiff moved to amend the declaration, by adding two additional counts, one being substantially an allegation of defendant's "failure to barricade a hole or depression" and the other its "failure to place a light over the hole or depression." This motion was argued on July 25, 1938, before a justice of the superior court who granted the same and allowed the defendant an exception.

On July 29, 1938, the defendant applied to this court for a writ of certiorari, on the ground that the trial justice had abused his judicial discretion in allowing said amendments. We granted the application and the writ issued. Later, on March 10, 1939, the plaintiff's motion to quash the writ was denied, and thereafter, on April 3, 1939, the parties were fully heard on the merits.

The plaintiff contends that certiorari is not proper as the defendant has another and adequate remedy for obtaining a review of the alleged error of the superior court, and cites in support of his contention Cohen v. Superior Court, 39 R.I. 272, 97 A. 794, and Parker v. Superior Court, 40 R.I. 214, 100 A. 305. It is true, as stated in the former case, which is discussed in the latter case, that ordinarily in certiorari this court will consider and correct error only in those cases where no other remedy is expressly provided; but it is also true that in an exceptional case certiorari has been allowed, in the interest of justice, even though another remedy would be available later.

In Atlantic Mills v. Superior Court, 32 R. I. 285, 79 A. 577, after a demurrer to the declaration on substantial grounds had been sustained by the superior court, the plaintiff, on his motion and against the objection of the defendant, was permitted by that court to file an amended declaration, in which substantial changes from the original declaration were made; although the statutory period of limitation had elapsed. The defendant was then permitted by this court to have that ruling reviewed by the issuance of a writ of certiorari; but on the hearing the ruling was sustained.

The situation of the parties before this court in that case was substantially the same as the situation of the parties in this case; and there was as much basis in that case as there is in this for the contention that the issuance of the writ of certiorari was improper because another remedy was available; yet in that case the issuance of the writ was held proper. Where, as in this case, the alleged error of which review is sought is the abuse of discretion by the trial justice in allowing a substantial amendment to plaintiff's declaration after the period of the statute of limitations had elapsed, and where the defendant contends that such amendment sets out a new cause of action, we are of the opinion that this court may, in the exercise of its discretion, properly allow certiorari in order that the alleged error may be immediately reviewed.

Having had the benefit of examining the record brought up by the writ of certiorari and of hearing the merits fully argued, we are now of the opinion that the defendant has failed to show that the trial justice abused his judicial discretion in granting plaintiff's motion to amend. The defendant contends that there is a fatal variance between the amended declaration and the statutory notice of the accident given by the plaintiff to the city. He also contends that such amended declaration, in...

To continue reading

Request your trial
16 cases
  • Wilkinson v. Harrington
    • United States
    • United States State Supreme Court of Rhode Island
    • June 25, 1968
    ...as a vehicle by which petitioners can obtain immediate review, even though another remedy would be available later. Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374; Conte v. Roberts, 58 R.I. 353, 192 A. 814. It is our belief that petitione......
  • Conn v. ITT Aetna Finance Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • April 17, 1969
    ...R.I. 76, 166 A.2d 227; Mancini v. Superior Court, 77 R.I. 262, 75 A.2d 300; In re Estate of James, 64 R.I. 144 11 A.2d 289; Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; Conte v. Roberts, 58 R.I. 353, 192 A. This case, in our judgment, falls into the 'unusual circumstances' category. This is n......
  • White v. White., 806.
    • United States
    • United States State Supreme Court of Rhode Island
    • March 24, 1944
    ...53 R.I. 319, 166 A. 685; Rose v. Standard Oil Co., 56 R.I. 272, 185 A. 251; State v. Sisson, 58 R.I. 200, 192 A. 209; Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; In re Estate of James, 64 R.I. 153, 11 A.2d 293. But in those instances recourse to the writ was allowed either on the ground that......
  • Frigon v. Warner, s. 9303
    • United States
    • United States State Supreme Court of Rhode Island
    • May 29, 1953
    ...rise to the same cause of action between the parties. See Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251; Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; O'Brien v. M & P Theatres Corp., 72 R.I. 289, 50 A.2d 781, 171 A.L.R. The plaintiff further contends that the precedents cited ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT