Carrigan v. Cole

• Decision Date: 01 March 1913
• Citation: 35 R.I. 162,85 A. 934
• Parties: CARRIGAN v. COLE et al.
• Court: Rhode Island Supreme Court

85 A. 934

35 R.I. 162

CARRIGAN

v. COLE et al.

Supreme Court of Rhode Island.

March 1, 1913.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by Patrick F. Carrigan against Frank W. Cole and others. Motion by Susan A. Cole, administratrix, to dismiss plaintiff's amended declaration, was sustained, and plaintiff excepts. Exception overruled, and cause remitted.

John C. Quinn, of Providence, for plaintiff.

Stone & Lovejoy, of Providence, for defendants.

VINCENT, J. The plaintiff, Patrick F. Carrigan, by his writ dated the 14th of June, 1910, commenced suit against Frank W. Cole and Susan A. Cole as administratrix upon the estate of William H. Cole, deceased. The said Frank W. Cole and William H. Cole were formerly copartners doing business under the name and style of F. W. Cole & Co. The writ directed the attachment of the goods, chattels, and real estate of Frank W. Cole "of the commonwealth of Massachusetts," and also the attachment of the personal estate of the said Frank W. Cole in the hands or possession of the Cole Teaming Company, a corporation located and doing business in Providence, in the state of Rhode Island. The writ further directed that the said Frank W. Cole and Susan A. Cole, as administratrix, be summoned to answer the complaint. The suit was an action on the case for negligence, and was brought by Patrick F. Carrigan as father and next of kin of Joseph Carrigan, an infant, deceased, it being alleged that by reason of the negligence of said Frank W. Cole and William H. Cole, by their servants and agents, said Joseph Carrigan was run over by a vehicle owned by said Frank W. and William H. Cole, receiving injuries from which he died. It appears from the return of the officer upon the writ that a copy thereof was left with the treasurer of the Cole Teaming Company for the purpose of attaching the stock or shares of said Frank W. Cole in said company, that the defendant Susan A. Cole, administratrix, was summoned, and that a further copy of said writ was sent by mail to Frank W. Cole to South Rehoboth, Mass., that being his place of address, he having no usual place of abode in Rhode Island. William H. Cole deceased November 16, 1909, some seven months prior to the date of the plaintiff's writ. On August 2, 1910, the treasurer of the Cole Teaming Company made affidavit that at the time of the service of the writ the said Frank W. Cole was not, either directly or indirectly, the owner of any stock or shares in said company, and that there was no personal estate of the said Frank W. Cole in the hands or possession of said Cole Teaming Company. The plaintiff filed his declaration July 27, 1910. The defendant Susan A. Cole, administratrix, on August 5, 1910, demurred to the plaintiff's declaration, and the demurrer was sustained to all of the counts by consent, and the plaintiff allowed 10 days to amend. After several attempts to bring his declaration within the decision of the court upon the demurrer, the plaintiff filed his last amended declaration April 22, 1911. On May 3, 1911, the defendant Susan A. Cole, administratrix, filed a motion setting forth that she had demurred to each and all of the counts of the plaintiffs original declaration on the following grounds: (1) That said declaration did not set forth any act of negligence on the part of the defendants; (2) that the said declaration did not state that said claim was presented to said defendant Susan A. Cole, administratrix, or filed in the office of the municipal court of the city of Providence before the bringing of said suit; and (3) that said declaration did not set forth a cause of action which at common...