Dyson v. R.I. Co.

• Decision Date: 04 February 1904
• Citation: 25 R.I. 600,57 A. 771
• Parties: DYSON v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

57 A. 771

25 R.I. 600

DYSON

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

Feb. 4, 1904.

Case for negligence by Louise Dyson against the Rhode Island Company. There was verdict for plaintiff. Heard on petition of defendant for a new trial, and petition denied. Remitted to the common pleas division for assessment of damages.

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

Irving Champlin, for plaintiff.

Henry W. Hayes, Frank T. Easton, and Lefferts S. Hoffman, for defendant.

BLODGETT, J. In the common pleas division the defendant, by its counsel in open court, submitted to a default, and then moved that damages be assessed by the court. The defendant's motion was denied, and a jury was impaneled therefor, and found damages for the plaintiff in the sum of $2,250. To the refusal of the court to assess the damages without the intervention of a jury the defendant seasonably excepted, and the case is now before us on its petition for a new trial grounded on the alleged error of this ruling, and also upon the ground that the damages awarded by the jury were excessive and unjust.

The statute under which these proceedings were had is Gen. Laws 1896, p. 830, c. 243, 8 5, as follows: "In all cases except where otherwise provided, if Judgment be rendered on default, discontinuance, submission, or demurrer, damages shall be assessed by the court, with or without the intervention of a jury, in the discretion of the court"

It will be observed that the language of the statute directs that damages "shall be assessed by the court, with or without the intervention of a jury, in the discretion of the court" Upon its face, then, the statute does not require the court to call a jury to its aid for that purpose. Neither is the court prohibited from doing so, but the court may call in a jury or may refrain from doing so, in its discretion. And this provision is of considerable antiquity in this state, being first adopted in substantially its present form more than 125 years ago.

In the Digest of 1767, p. 59, is to be found "An Act regulating Sunday Proceedings in the several Courts in this Colony," in which it is provided as follows: "That in all cases both at the Inferior and Superior Courts where Judgment shall pass by Default, Discontinuance, Nihil Dicit, Non sum informatus, or Demurrer where Damages are to be enquired into and assessed, Damages shall be enquired into and assessed by the Court or otherwise by a Writ of Enquiry at the Discretion of the Courts."

In the Revision of 1798, p. 166, "An Act prescribing the Manner of Proceeding in Courts," it is provided, by section 13: "That in all cases in the Supreme Judicial Court and Courts of Common Pleas when judgment shall be rendered on default, discontinuance or demurrer, damages shall be assessed by the Court with or without the intervention of a Jury at the discretion of such court"

In the Revision of 1822, p. 126, "An act prescribing the manner of proceeding in courts," section 13 re-enacts the last provision verbatim with addition of the word "submission" to the cases above enumerated. This was again re-enacted in the Revision of 1844, p. 129, in section 14 of "An act prescribing the manner of proceedings in courts"; in the revisions of 1857, Rev. St c. 186, § 7; 1872, Gen. St c. 202, § 7; 1882, Pub. St c. 213, § 8; 1893, Judiciary Act, c. 23, § 5; 1896, Gen. Laws, p. 830, c. 243, 8 5.

From the foregoing citations it will be seen that there was no statutory right to have damages in a defaulted case assessed by a jury at the time of the adoption of the Constitution in 1843.

Two questions are presented for our consideration by the exceptions — one being whether damages must be assessed by a Jury as matter of right when the question of damages is the only question to be determined; and the other being this: If an assessment of damages by a jury is not a matter of right, what is the effect of the finding of a jury in cases in which the court has intrusted the consideration of that question only to a jury?

Properly to decide these questions involves an examination of the respective provinces of court and jury, and requires us to trace the growth of the method of assessing damages in defaulted cases at the common law, and it therefore becomes necessary to consider the adjudications of the courts upon the law of England as it anciently stood, in deference not only to the injunction of Lord Coke in that behalf (Pilford's Case, 10 Coke Rep. 115)—"Satius est petere fontes quam sectari rivulos"—but in view also of the statute of the General Assembly of the colony contained in the Digest of 1767, p. 56, providing "that in all Actions, Causes, Matters and Things whatsoever where there is no particular Law of this Colony, or Act of Parliament introduced for the Decision and Determination of the same, then and in such Cases the Laws of England shall be in Force for the Decision and Determination of the same," as well as of the decision of this court in Martin v. Clarke, 8 R. I. 403, 5 Am. Rep. 586, that "the colonists here upon their emigration brought with them to this country the law of England as it then existed as modified by statutes so far as it was applicable to their condition and circumstances here." See, also, Bishop v. Tripp, 16 R. I. 198, 14 Atl. 79; Act 1647 (1 R. I. Col. Rec. 158); Act 1700 (Dig. 1719, p. 45).

In the Registrum Brevium, of which it is said by Lord Coke (Pref. part 10, Coke's Rep. Th. & F. Ed. xxiv) that it is "the ancientest book of the law," and that it "containeth the original writs of the common law," and that it is (Pref. part 8, Coke's Rep. Th. & F. Ed. xxiii) "so ancient as the beginning whereof cannot be shewed," adding also, "Concludere licet hunc esse librum turn antiquitatis, tum authoritatis maximse," "And of these ancient writs I will say that all the secretaries in Christendom may learn of them to express much matter in few and significant words," are to be found the form of a writ for the summoning of a jury for the trial of an issue, and the form for a writ of inquiry for the assessment of damages.

The form of a writ of venire facias to summon a jury of 12 men to determine an issue between the parties is as follows (Reg. Brev. Editio Quarta, 1687):

"Rex, Vicecomiti salutem. Praecipimus tibi qd' venire facias coram justitiariis nris apud Westm' & die, &c. 12 tarn milites quilm alios liberos & legales homines de visinetu de E. quorum quilibet habeat centum solidatas terrae, tenemen, vel reditus per annum ad minus, per quos rei Veritas melius sciri poterit, & qui nec A. nec I. aliqua affinitate attingunt, ad recognoscend' super sacramentum suum si W. consanguineus praed' A. cujus haeres ipse est, fuit seisitus de maaerio de R. cum pertinentlis in dominico suo at de feodo die quo obiit, quod idem A. in curia nostra coram justitiariis wis apud.

Westm' clamat ut Jus suum versus eum, sicut idem A. dicit, vel non sicut praed' I dicit, quia tam praed' I quilm praed' A. inter quos inde contentio est, posuerunt se in juratam illam. Et habeas I'hila nomina juratorum & hoc breve. T. &c."

And the form of a writ ad inquirendum de damnis was in these words:

"Rex vie' salutem. Ostensum est nobis ex parte P. de L. quòd cum B. de S. in curia nostra, &c. sum' esset ad respondend' eidem P. de placito quare cepit unum equum ipsius Petri in separali ipsius Petri, 4 eum injustè detinuit contra vadium & pleg', & idem B. venisset in eadem curia & dixisset quèd ipse cepit averia ilia in damno suo pascentia separalem pasturam ipsius Beruardi, & partes hinc inde posuissent se in juratam patriae, per quam postea in eadem curia nostra convictum fuit quèd praed' Bernardus averia cepit in damno suo in separali pastura ipsius Bernardi, ita quèd idem Bernardus per considerationem curiae nostrae haberet retornum averiorum praedictorum: Praefatus Bernardus licet praedictus Petrus rationabiles & sufficientes emend' pro damnis & transgressione praedictis saepius ei obtulerit, praedicta averia detinet imparcata, contra legem & consuetudinem regni nostri, ad damnum ipsius Petri non modicum & gravamen. Et quia nolumus quèd praedictus Petrus injurieturin hac parte, tibi praecipimus qudd in praesentia eorundein Petri & Bernardi ad hoc praemonitorum si interesse voluerint, per sacramentum probor & legalium hominum de visinetu illo neutri parti suspector, diligenter inquiras quae damna praedictus Bernardus habuit occasione transgressionis praedictae. Et quilm citius dictus Petrus eidem P. satlsfecerit de damno iilius juxta taxationem eorundem juratorum, praedicto averia eidem Petro sine dilatione liberari facias, Juxta eundem valorem & precium cujus fuerunt tempore quo fuerunt eidem Bernardo retornata. Et qualiter, &c. Et habeas, &c."

It is evident, in the first place, that the purpose and the effect of the latter writ are different from the purpose and the effect of the former, since otherwise there would be no need of more than one writ. And a comparison of the two discloses differences in several particulars. The number of a trial Jury is fixed at twelve, while the number of jurors is not determined in the case of a jury called merely to assess damages which is to be done merely "per sacramentum probor (um) et legalium hominum" (by the oaths of good and lawful men), the number of whom was determined by the sheriff at his pleasure, as will later appear. The precept of the writ in the former case summons a jury "per quos rei Veritas melius sciri poterit" (by whom the truth of the matter may be more clearly known), and who are summoned "ad recog-noscendum super sacramentum suum" (to determine upon their oath) as between the parties "inter quos inde contentio est" (between whom there is an issue), and of whom it is said "Posuerunt se in juratam" illam" (they have placed themselves upon that Jury).

In the latter the precept of the writ is not to the jurors to determine, but to the "vice comes" (sheriff), that he (the sheriff) should diligently...