O'brien v. M & P Theatres Corp.. .

• Decision Date: 06 January 1947
• Docket Number: Nos. 840, 841.,s. 840, 841.
• Citation: 50 A.2d 781
• Court: Rhode Island Supreme Court
• Parties: O'BRIEN v. M & P THEATRES CORPORATION (two cases).

50 A.2d 781

O'BRIEN

v.M & P THEATRES CORPORATION (two cases).

Nos. 840, 841.

Supreme Court of Rhode Island.

Jan. 6, 1947.

Certiorari to Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Certiorari proceedings by Margaret O'Brien and by William O'Brien against M & P Theatres Corporation to have a decision of the Superior Court granting respondent's motion to strike out the third and fourth counts of the declarations in law actions by the petitioners, quashed.

Record of Superior Court granting motion to strike out third and fourth counts of declaration ordered quashed.

Crowe & Hetherington, Henry E. Crowe and Thomas Hetherington, all of Pawtucket, for petitioners.

Henshaw, Lindemuth & Siegl and Daniel S. T. Hinman, all of Providence, for respondent.

BAKER, Justice.

These are petitions for writs of certiorari praying that a decision of the superior court, granting respondent's motion to strike out the third and fourth counts from the declarations, in actions at law brought by the respective petitioners, be quashed.They were heard before us on citations to show cause why the prayer of each petition should not be granted and the same questions are raised in both cases.

The actions at law in question, which were trespass on the case for negligence, were brought following our decision that judgments of nonsuit should be entered for the defendant in the earlier cases between these parties.O'Brien v. M & P Theatres Corp., 71 R.I. 339, 45 A.2d 171.The basis of all these actions is that the petitionerMargaret O'Brien had, by reason of the respondent's alleged negligence, fallen on a stairway in its theatre and had thereby been injured.

In the earlier cases, disposed of by the entry of judgments of involuntary nonsuit, each of the declarations contained only two counts.The first set out in substance that the breach of respondent's duty was its negligence in maintaining the covering on the stairway in question, causing the petitionerMargaret O'Brien to catch her foot in a worn, broken or torn place in such covering and to fall.The second count set out in substance that the breach of respondent's duty was its same negligent act whereby the petitionerMargaret O'Brien stepped on a worn, broken or torn place in such covering, the frayed portions of which caused her to slip and fall.

In the later cases involved in these petitions, however, each of the declarations contains four counts.It is admitted that the first two counts are the same as those appearing in the declarations in the earlier cases; that the third count thereof sets out in substance that the petitionerMargaret O'Brien fell because of the respondent's negligence in failing to light the stairway sufficiently; and that the fourth count sets out in substance that the failure of the respondent to light the stairway properly was the negligent act which caused said petitioner to fall.

In the superior courtthe respondent moved that said third and fourth counts be struck from the petitioners' declarations on the ground that each of such counts sets up a new and distinct cause of action against the respondent, which was barred by the statute of limitations.The trial justice granted the above motions and the correctness of his rulings is the principal issue now before us.It is not disputed that if such counts set out new causes of action, as the respondent contends, they are barred by the statute of limitations.The petitioners, on the other hand, argue that the counts do not set out new causes of action, but merely state additional grounds of negligence as the causes of the same injury.

The respondent first contends that the instant petitions should be denied and dismissed because certiorari is not the proper remedy for reviewing the action of the superior court in striking out the third and fourth counts of the declarations.The respondent argues that no exceptional circumstances are here involved; that the situation comes within the rule that, apart from statute, this court will ordinarily entertain certiorari to correct error only in cases where no other remedy is expressly provided; and that the petitioners have exceptions to the superior court's ruling complained of, which exceptions can be prosecuted later, if they receive in that court an adverse decision or verdict on the merits.

The petitioners rely on Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890, as authority for the bringing of their present petitions.That case, as the respondent points out, discloses facts differing from those in the actions at law brought by the petitioners.In the Brickle case it appeared that the petitioners had asked permission of the superior court to amend their declarations by adding two new counts in cases that were then pending.The actions between the present parties were brought under the statute, General Laws 1938, chapter 510, § 9, after judgments on an involuntary nonsuit had been entered against petitioners in the first cases which they had instituted.In both instances, however, the respondents contended that the additional counts constituted new causes of action and that the statute of limitations had run as to them.

In the Brickle case, at page 123 of 63 R.I., at page 891 of 7 A.2d, it was stated that, ‘In an exceptional case certiorari has been allowed, in the interest of justice, even though another remedy would be available later.’The court then held that under the circumstances of that case it had such a situation before it, and that in the exercise of its discretion it was proper to allow certiorari in order that the alleged error complained of might be immediately reviewed.Upon consideration we are of the opinion that this same principle of law thus applied in the Brickle case is the principle which should be applied in the instant petitions.

We find that the present cases are exceptional ones, of the same general nature as the Brickle case, and that it is in the interest of justice that the alleged error of the superior court be reviewed immediately so that the petitioners, if their contentions are correct, may not be deprived of a full trial on all proper issues at one time.We, therefore, in the exercise of our discretion hold that, in view of all the special circumstances, the instant petitions for certiorari should not be denied and dismissed as being improperly brought.

A further preliminary question appears to be whether a motion to strike out the third and fourth counts is the approved method to raise the controlling question of law which is here involved.Under the practice in this state a motion to strike out pleadings prior to trial has uniformly been confined to striking out such pleadings as appear on their face to be incompetent, immaterial, repugnant, unnecessary, or frivolous and which would thus tend merely to delay the trial and confuse the issue.A consideration of our cases shows that ordinarily such motions have been used to strike out in whole or in part dilatory pleas of the above character and have at times been treated as somewhat equivalent to a formal demurrer.SeeCrafts v. Sweeney, 18 R.I. 730, 30 A. 658, and cases cited.A motion to strike out has never been approved, however, as a substitute for a substantial demurrer in order to test the legal sufficiency of matters well pleaded in a declaration or plea; nor has it been treated as the equivalent of a special plea when, to decide the issue, it is necessary to import new matter not already appearing in the pleadings.SeeGiarrusso v. Brown & Sharpe Mfg. Co., 72 R.I. 229, 50 A.2d 72.

In Chobanian v. Washburn Wire Co., 33 R.I. 289, 80 A. 394, Ann.Cas.1913D, 730, it does appear that a motion was made to strike additional counts from an amended declaration on the ground that such counts set out new causes of action against which the statute of limitations had run.However, no objection was made by any of the...