Flint Motor Car Co. v. Everson

• Decision Date: 10 April 1912
• Citation: 34 R.I. 65,82 A. 726
• Parties: FLINT MOTOR CAR CO. v. EVERSON.
• Court: Rhode Island Supreme Court

82 A. 726

34 R.I. 65

FLINT MOTOR CAR CO.

v. EVERSON.

Supreme Court of Rhode Island.

April 10, 1912.

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Action by the Flint Motor Car Company against Edward W. Everson. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted.

J. Jerome Hahn and John Henshaw, for plaintiff. Bassett & Raymond (R. W. Richmond, of counsel), for defendant.

DUBOIS, C. J. This is an action of assumpsit on book account, brought by the plaintiff in the superior court to recover the sum of $517.38 for work done and materials furnished in repairing the defendant's automobile. The plea was the general issue. The case was tried before a jury in the superior court, and resulted in a verdict for the plaintiff for $623.40. Thereupon the defendant made a motion for a new trial of the case before the judge who presided at the trial, and the same was denied. Whereupon the defendant excepted to such ruling, and has duly prosecuted his bill of exceptions, containing the same and other exceptions saved by him during the course of the trial, to this court, and the case is now before us upon said bill of exceptions, which reads as follows:

"Now comes the defendant in the above-entitled cause, and files this his bill of exceptions, and says: This is an action in assumpsit on an alleged book account, brought by the plaintiff against the defendant to recover the sum of $517.38. Said cause was tried before Mr. Justice Rathbun and a jury on the 5th and 6th days of May, A. D. 1911, and a verdict was rendered in favor of the plaintiff for the amount claimed, with interest added thereto. That within seven days of the rendering of said verdict the defendant filed a motion for a new trial, which said motion was based on the following grounds: (1) That said verdict is against the evidence and weight thereof. (2) That said verdict is against the law. (3) That the damages awarded by said verdict are excessive. That said motion for a new trial was subsequently heard on the 27th day of May, A. D. 1911, by Mr. Justice Rathbun, and denied, and the defendant's exception noted to said decision. That, within seven days of said decision denying defendant's motion for a new trial, the defendant filed a notice in the office of the clerk of the superior court of his intention to prosecute his bill of exceptions to the Supreme Court. That during the trial and the proceedings of said case certain errors were committed by said court, and certain exceptions were actually taken by defendant, which said errors and exceptions are shown in and by the transcript of the testimony taken in said cause, filed herewith and made a part of this bill of exceptions. Said exceptions, stated clearly and separately, are, viz.:

"(1) To the ruling of the justice presiding at the trial of said action in permitting the witness Alma C. Mowry to read from a book certain entries made by her therein from original slips, the original slip not being produced in court, and to testify from said book as to the alleged book account held by the plaintiff against the defendant. Which said exception is found on page 4 of the transcript of the testimony, and was preceded by objection of counsel found on pages 2 and 3 of the transcript of testimony to questions 14, 15, and 18, respectively.

"(2) To the ruling of the justice presiding at the trial in permitting witness Alma C. Mowry to testify as to book entries from the book she had made of entries copied from original slips. Which said exception is found on page 6 of the transcript of testimony.

"(3) To the ruling of the justice presiding at the trial in refusing to strike out the testimony of Alma C. Mowry, bookkeeper for the plaintiff. Which exception appears on page 56 of the transcript of the testimony.

"(4) To the ruling of the presiding justice in excluding the answer of the defendant to question 41 of his direct examination, as to his own damages. Which said exception is found on page 78 of the transcript of testimony.

"(5) To the ruling of the justice presiding at the trial in permitting the plaintiff's counsel to inquire of the defendant as to any indebtedness of his to the Union Trust Company, as asked in question 131 to defendant on page 89 of the transcript of testimony. Which said exception is found on page 89 of the transcript of testimony.

"(6) To the ruling of the justice presiding at the trial in permitting the plaintiff's counsel to inquire of defendant as to any indebtedness of his to the Union Trust Company, as asked in question 133 to defendant on page 89 of the transcript of testimony. Which said exception is found on page 90 of the transcript of testimony.

"(7) To the refusal of the court to charge the jury as requested by the defendant as follows: 'The original time slips for the time of workmen on this job not being produced, and no original slips for material used upon the job being presented, the jury are not entitled to consider as evidence of a shop book or book account the book of entries introduced by the plaintiff to prove the amount of charges against the defendant.' Which said exception is found on page 100 of the transcript of...