Frigon v. Warner

• Decision Date: 29 May 1953
• Docket Number: 9304,Nos. 9303,s. 9303
• Citation: 97 A.2d 276,80 R.I. 363
• Parties: FRIGON v. WARNER (two cases). Ex.
• Court: Rhode Island Supreme Court

Page 276

97 A.2d 276

80 R.I. 363

FRIGON v. WARNER (two cases).

Ex. Nos. 9303, 9304.

Supreme Court of Rhode Island.

May 29, 1953.

Fred Israel, Woonsocket, for plaintiffs.

Higgins & McCabe and Eugene V. Higgins, Providence, for defendant.

FLYNN, Chief Justice.

These actions in trespass on the case for negligence were brought respectively by a wife and her husband for damages resulting from injuries to the wife alleged to have been caused by the negligence of defendant as operator of a private bus in which the wife was a paying passenger. The amended declaration in each case has two counts and each case relies basically on the same allegations. Since the husband's case depends on defendant's liability for injuries to the wife and as the procedure in each was the same, we shall consider the case of Emily E. Frigon as if it were the only one here but our conclusion will apply to both.

In the superior court defendant's substantial demurrer to the second amended declaration was overruled as to the first count and was sustained as to the second count thereof. From the latter ruling plaintiff immediately prosecuted a bill of exceptions to this court. Thereupon defendant filed in each case a motion to dismiss on the ground that the bill of exceptions was prematurely here. This court denied such motions without prejudice, however, to their being renewed when the exceptions came on for hearing on the merits. Frigon v. Warner, 79 R.I. 423, 89 A.2d 834.

The defendant has renewed his motion to dismiss, which raises the first question to be considered. He contends in substance that the ruling sustaining his demurrer to the second amended count of the declaration was made before trial; that it is not a final decision which disposed of the case on the merits in the superior court; that there are issues under the first count to be decided; and that in accordance with general laws 1938, chapter 542, § 12, the ruling is not reviewable on a bill of exceptions until after verdict or final decision on the merits, and then only so far as it affects the final outcome.

The plaintiff on the other hand argues that the second amended count is a separate, distinct and different cause of action; that if not reviewed before trial the decision will become a judgment and will be res adjudicata without plaintiff ever having the opportunity to have it reviewed; and that in any event the rule or statute limiting a review of a decision made before trial should not be applied to cases for negligence in which the declaration contains several counts.

Bills of exceptions are governed by G.L.1938, chap. 542. In addition to section 5 of that chapter, which provides generally the conditions for filing a bill of exceptions after verdict or final decision, section 12, which is important here, reads as follows: 'Exceptions to decisions or rulings prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the supreme court that the verdict or final decision was erroneously affected thereby.'

The history, purpose and effect of chapter 542 have been previously considered and need not be repeated. See Troy v. Providence Journal Co., 43 R.I. 22, 109 A. 705; McMahon v. Edelstein, 75 R.I. 402, 67 A.2d 32. It is sufficient to point out that the former practice of determining before trial the questions of law raised by substantial demurrers was definitely changed by enactment of the Court and Practice Act of 1905. Since that time, as we stated in Davis v. O. D. Purington Co., 58 R.I. 482, 484, 193 A. 524, 525, quoting from the Troy case: '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.'

Moreover, final decision as contemplated in such statute has been held 'to mean 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 [43 R.I. 22, 109 A. 706]. In other words such decision means a final determination on the merits of the entire case in the superior court so that nothing remains there but the carrying into effect by operation of law of the court's determination of the case. Pawtucket Cabinet & Builders Finish Co. v. Peoples Excursion Line, Inc., 45 R.I. 426, 123 A. 354; Chase v. United States Fidelity & Guaranty Co., 71 R.I. 81, 42 A.2d 488. Consistently from the beginning this court has held that the provisions of the statute governing bills of exceptions are jurisdictional and require a strict construction. Frappier v. Frappier, 64 R.I. 54, 10 A.2d 340; Providence Fruit & Produce Bldg., Inc. v. Gamco, Inc., 76 R.I. 54, 57, 68 A.2d 20.

The first question in the instant case is whether the ruling of the superior court sustaining defendant's demurrer to one of two counts of the amended declaration is a final decision to which an exception can be prosecuted before trial. Clearly the decision related only to the sufficiency of one count in the declaration. The cause of action itself was still pending in the superior court on issues proffered by the first count. Therefore in our opinion the ruling in question is not a final decision which by operation of law would determine in that court the entire cause of action on the merits.

The plaintiff, apparently to avoid this conclusion, argues that the second count is a separate, distinct and different cause of action; that the ruling thereon would mature into a judgment which in legal theory and effect would be res adjudicata of a cause of action which was different from the one alleged in the first count; and that therefore the ruling is final and should be reviewed before trial. A sufficient answer to this contention is that the same argument was made to this court in Sanitary Oyster Carrier & Comm. Co. v. Wm. M. Merwin & Sons Co., 34 R.I. 381, 83 A. 753. There multiple counts were filed in a declaration and a demurrer was sustained as to one but not as to all counts, and this...