Davis v. O. D. Purington Co., Inc.

• Decision Date: 21 July 1937
• Docket Number: No. 7781.,7781.
• Citation: 193 A. 524
• Parties: DAVIS v. O. D. PURINGTON CO., Inc.
• Court: Rhode Island Supreme Court

193 A. 524

DAVIS

v. O. D. PURINGTON CO., Inc.

No. 7781.

Supreme Court of Rhode Island.

July 21, 1937.

Exceptions from Superior Court, Providence and Bristol County; G. Frederick Frost, Judge.

Action of trespass on the case by Phyllis Davis, p. a., against the O. D. Purington Company, Inc., for negligence. The defendant's demurrer to the plaintiff's declaration was sustained and plaintiff given ten days within which to amend, and plaintiff brings exception without first exercising the privilege of amending.

Exception overruled and case remitted to the Superior Court for further proceedings.

Emile H. Ruch and Charles B. Coppen, both of Providence, for plaintiff. Clifford A. Kingsley and Francis V. Reynolds, both of Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence. The defendant demurred to the plaintiff's declaration on the ground that it was vague, indefinite, and uncertain, and on several other grounds. The demurrer was heard by a justice of the superior court and decision was reserved. Later, said justice filed a rescript sustaining the demurrer and allowing the plaintiff ten days wherein to amend her declaration. Plaintiff excepted to this decision and has prosecuted her bill of exceptions to this court, without first exercising the privilege accorded to her to amend her declaration and also without indicating to the trial justice that she elected to stand upon her declaration as originally filed, without amendment.

Defendant contends here that the decision of the trial justice sustaining its demurrer and allowing the plaintiff to amend her declaration is not erroneous, but defendant also raises a preliminary question as to whether or not on the pleadings as they now stand the prosecution by the plaintiff of her bill of exceptions is premature.

It is now well settled under our practice that a bill of exceptions may be prosecuted to this court only from a final decision on the merits by the court below. A decision on a demurrer is not ordinarily a final decision on the merits. Decision on demurrer to the sufficiency of a plea in form is not a final decision on the merits unless, if allowed to stand, it would result in a final decision for the opposite party. Hicks v. Lee, C. T., 37 R.I. 251, 92 A. 556.

Decision on a substantial demurrer to a plea is not a final decision on the merits. Troy v. Providence Journal Co., 43 R.I. 22, 109 A. 705. The court, in that case, commented on the practice that formerly prevailed prior to the enactment of the Court and Practice Act of 1905 of certifying causes to the appellate division of the Supreme Court for the settlement, before trial on the merits in the common pleas division, of questions of law raised by substantial demurrers filed in the latter division, and said: "Substantial demurrers are no longer certified to this court for determination before trial of the cause upon its merits. Such a demurrer is presented to the superior court for its ruling thereon, and said ruling cannot be brought by either party to this court for review until after verdict or final decision in the cause upon its merits, and not then unless the ruling erroneously affected said verdict or decision."

A final decision upon the merits means "a determination upon the merits of a cause which will in due time by operation of law lead to a final judgment in the cause." Troy v. Providence Journal Co., supra. A decision overruling a demurrer to a declaration was definitely said in that case not to be such a final decision. The court did say, however, 43 R.I. 22, at page 26, 109 A. 705, 706 of the opinion, that: "A ruling sustaining a demurrer to all the counts of a declaration, if the plaintiff is not permitted to amend, is a 'final decision'," because, it said, such ruling concludes the cause and leads to a final judgment for the defendant. This is a correct statement of...