Crafts v. Carr

• Decision Date: 05 August 1902
• Parties: CRAFTS v. CARR.
• Court: Rhode Island Supreme Court

53 A. 275

24 R.I. 397

CRAFTS

v. CARR.

Supreme Court of Rhode Island.

Aug. 5, 1902.

Action by Albert B. Crafts against Phebe A. Carr. From a verdict in favor of plaintiff, defendant brings a motion for a new trial. Motion denied.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.,

A. B. Crafts, in pro. per.

S. W. K. Allen, for defendant.

ROGERS, J. This is defendant's petition for a new trial, after verdict for the plaintiff, of an action of assumpsit for counsel fees for services alleged to have been rendered to the defendant, who is a minor, in bringing and successfully prosecuting an action at law brought by the defendant, by her father and next friend, George H. Sprague, against one Joseph H. Brown, for an alleged indecent assault upon her.

1. After the petition for a new trial was filed, the plaintiff moved to dismiss it for the following reasons: The defendant, upon the rendition of the verdict against her, duly filed notice of her intention to claim a new trial, and asked for an extension of time to file statement of evidence, etc., which was granted, and time was extended to October 15, 1901. On October 31st the time was further extended to November 8th, on which last-named date the statement was filed, and has been allowed by the justice presiding at the jury trial. The plaintiff claims that, inasmuch as there is no written extension of time from October 15th to October 31st on file, the petition should be dismissed, as the last extension was not made "within any extension thereof," etc., as required by Gen. Laws R. I. c. 251, § 6, p. 864. The statute provides that within five days after verdict, or within any extension thereof from time to time on motion therefor, the justice may extend the time for filing statements to such time as he may prescribe. With such discretion in the justice, it is to be presumed that his action was regular, and that the extension from October 15th to October 31st has been lost. That a clerical error was committed by the defendant's attorney in dates is apparent, for he heads his original motion for time extension thus, "Adjourned June Session A. D. 1891," instead of 1901, and asks that the time be extended to October 15, 1891, instead of 1901; the name of the county and the name of parties and the name of court being correctly given. The justice, in extending the time, gives the date of his action as July 10, 1901,—the very date of the rendition of the verdict,—and extends the time to October 15, 1901, so the clerical error la of no practical account.

2. The plaintiff also claims that filing the statement on November 8, 1901, is not a compliance with the extension to November 8, 1901. The invariable practice since the enactment of the judiciary act in 1893 by successive judges has been to construe the extension as inclusive of the day to which the extension was granted, and to allow statements so tiled when correct, and the presiding justice has allowed the statement in this case. The construction so adopted and followed has become too securely established, in our opinion, to be now successfully attacked. For the reasons given, the plaintiff's motion to dismiss the petition for a new trial is overruled. The defendant petitions for a new trial on the ground that the trial justice erred in his rulings upon questions of law raised at the trial, and that said justice declined to rule and charge the jury as requested by the petitioner, and ruled against her requests. The defendant's requests which the justice refused to give, and to which refusal the defendant excepted, are as follows, viz.: "(1) The declaration sets out no cause of action against the defendant, an infant under the age of twenty-one years.

(2) The testimony discloses no cause of action against the infant defendant; the services rendered not being necessaries as a matter of law, and the defendant never having ratified the claim after arriving at her majority.

(3) If the defendant was an infant under the age of twenty-one years, the father could not bind her estate by any contract with the plaintiff for professional services." We think the first request was properly denied. In the Second judicial district court, where the action was originally brought, the defendant was described as an infant, and her guardian was duly served with process as required by statute. The defendant demurred because the declaration did not set out that the services rendered by the plaintiff as an attorney were necessaries. The case was tried both on its merits on the general issue and on the demurrer, evidence being put in as to necessaries; and, while the district court was holding it for advisement, the plaintiff filed an amended declaration with the averment inserted, for the lack of which the defendant had demurred. Subsequently the district judge rendered a long decision in favor of the plaintiff, deciding that the services were necessaries. Thereupon the defendant asked for a jury trial, and the case was certified to the common pleas division, where the defendant again demurred for the same reason as before, with the added ground that the declaration did not set out that the defendant had ratified the contract since attaining majority. The demurrer was overruled, and the case was tried to the jury on the questions whether the defendant had made a promise, and whether the services rendered were necessaries that the defendant, under the circumstances of the case, was liable for; there being no pretense on the plaintiff's part that the defendant had ratified any promise made by her after attaining her majority. We think the declaration set out a cause of action against the defendant, an infant under twenty-one years, and the trial showed that the defendant's counsel fully understood and appreciated the cause set forth.

3. The next question raised is whether the plaintiff's services were necessaries. The services rendered by the plaintiff were as follows: The defendant in the summer of 1898 was 17 years old and unmarried. In August of that year her father, George H. Sprague, went to the plaintiff's office in Westerly, and told him of an indecent assault upon her by one Joseph H. Brown, and wanted a suit brought in order to protect her and others from similar assaults. The result of the consultation was that the plaintiff brought action against said Brown in the name of the defendant, by her father as her next friend, and after trial thereof the jury rendered a verdict in favor of the infant (being the defendant in the case at bar) for $600, which verdict was sustained on a petition for a new trial, and judgment was entered on the verdict in June, 1899. Mr. Allen, who is counsel for the defendant in the case at bar, was counsel for the said Brown in the damage suit against him. When the plaintiff in the case at bar visited the clerk's office of the common pleas division with reference to getting out an execution in the damage suit against Brown, he found a paper filed June 13, 1899, signed by said Brown and by Phebe A. Carr (for Miss Sprague had been married then), to the effect that the ease had been settled; but said paper was not signed by her father, George H. Sprague, her next friend, nor had any guardian then been appointed. Notwithstanding this peculiar settlement, execution was ordered to issue. The plaintiff in the case at bar, as shown by the statement of evidence, swore as follows, viz.: "I went to see her [the present defendant], and she was sick. I asked her if she had made that settlement, and she didn't answer at first, but finally admitted that on June 13th she was sent for by Mr. Allen to come to a neighbor's there, and she went without the knowledge of her father or mother, and they settled it up taking a $400 note. At this time she told me she didn't want to settle it, and wanted me to look out for her." The full judgment, amounting to $663, was finally collected, but not without efforts made in court by said Brown to enforce the settlement. After the execution was collected, the amount was paid to the defendant's guardian, who had then been appointed. It is urged for the defendant that the plaintiff's claim for services is properly one against George H. Sprague, and not against her. The situation was this: A girl of 17, having no estate and no guardian, was the victim of an indecent assault. She had a father and mother, and her father, her natural guardian, so to speak, at once took steps for his daughter's protection and for compensation for her sufferings, and incidentally for the punishment of her assailant. Her father was naturally her next friend, and legally became such to enable a suit to be brought, as she, being a minor, could not, except under very extraordinary circumstances, bring it without the aid of a next friend to manage it, which the law presumes, from the disability of her infancy, she is unable properly to manage herself; the next friend being liable to the defendant for costs of suit in case the infant fails in the action. Bliven v. Wheeler, 23 R. I. 379, 50 Atl. 644. If the infant recovers, her estate would be enriched, and, as she would then have an estate, she would then require a guardian, to whom the amount recovered would be paid. If the suit against Brown was a legally proper one for the next friend to have aided the infant to bring, and the expense of counsel engaged therein was what is technically termed in law "necessaries," then the infant defendant would be liable for such necessaries. It has been urged that the infant, in propria persona, did not promise the plaintiff in the case at bar to pay him for services, nor did she actually engage him. The father's duty as next friend was to exercise his mature judgment in the management of the action which the immature judgment of the infant, the law presumed, was not equal to; and the very first occasion for the exercise of such judgment was in the employment of capable counsel. The daughter knew of the...