Joyce v. Cary

• Decision Date: 06 April 1921
• Docket Number: No. 5446.,5446.
• Citation: 113 A. 2
• Parties: JOYCE v. CARY.
• Court: Rhode Island Supreme Court

113 A. 2

JOYCE

v. CARY.

No. 5446.

Supreme Court of Rhode Island.

April 6, 1921.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.

Action by Florence G. Joyce against Rudolph P. Cary. Verdict for plaintiff, and motion for new trial refused, and defendant brings exceptions. Exceptions overruled, and case remitted, with directions.

Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff.

Charles H. McKenna, of Providence, for defendant.

RATHBUN, J. This is an action of assumpsit brought to recover for necessaries furnished the defendant's wife. The trial in the superior court resulted in a verdict for the plaintiff for $598. The case is before this court on the defendant's exception to the refusal of the trial court to grant the defendant's motion for a new trial. Said motion alleged that the verdict was against the law and the evidence and the weight thereof.

The defendant was living apart from his wife. The evidence warrants a finding that without justifiable cause the defendant failed to provide his wife with adequate means of support; that at his request the plaintiff nursed and cared for the defendant's wife for 52 weeks, for which plaintiff charged $5 per week, amounting to $260; that the services rendered were necessary and the charge reasonable; and that plaintiff furnished defendant's wife necessary household supplies and money, which plaintiff saw expended for necessary household supplies for the defendant's wife, to an amount more than equal to the difference between the verdict and $260, the amount charged for care and nursing; that all of said supplies were necessary for the reasonable support of defendant's wife; and that defendant without justifiable cause failed to provide either money to purchase any of said supplies or necessary household supplies which might have been used in the place of supplies furnished by the plaintiff. The verdict has been approved by the justice presiding at the trial.

The case was commenced in a district court. The ad damnum as laid in the writ was $100. On the entry day of the writ jury trial was claimed. In the superior court the plaintiff obtained permission to amend the ad damnum from $100 to $500 but the amendment was never made. The plaintiff" now moves that she be permitted to amend the ad damnum clause in accordance with the permission granted by the superior court. As the case was tried on the theory that the...