Mockel v. Pawtucket Gas Co. of N.J.

• Decision Date: 16 November 1927
• Docket Number: No. 6389.,6389.
• Citation: 139 A. 308
• Parties: MOCKEL v. PAWTUCKET GAS CO. OF NEW JERSEY et al.
• Court: Rhode Island Supreme Court

139 A. 308

MOCKEL

v. PAWTUCKET GAS CO. OF NEW JERSEY et al.

No. 6389.

Supreme Court of Rhode Island.

Nov. 16, 1927.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Frank Mockel against the Pawtucket Gas Company of New Jersey and the Blackstone Valley Gas & Electric Company. Case discontinued as to last-named defendant. Plaintiff's motion to reopen case as to last-named defendant was denied, after verdict was directed for defendant Pawtucket Gas Company, and plaintiff excepts. Exceptions overruled, and cases remitted, with directions to enter judgment on the verdict.

Boss, Shepard & McMahon, of Providence, for plaintiff.

Sherwood, Heltzen & Clifford, of Providence, for defendant.

STEARNS, J. Plaintiff brought an action for negligence against these defendants July 8, 1925. The writ directed the sheriff to summon "the Pawtucket Gas Company, of New Jersey, a New Jersey corporation, doing business in the city of Pawtucket, state of Rhode Island, and Blackstone Valley Gas & Electric Company, a Rhode Island corporation, doing business in the city of Pawtucket, state of Rhode Island." It was served by leaving an attested copy "with Geo. Stiness for each of defendant corporations." The description of defendants was the same in the declaration. Plaintiff joined the defendants because he was uncertain whether the driver of a truck which injured him was the servant of one or the other; his purpose being to ascertain which corporation was liable. G. L. 1923, c. 333, § 20. The same attorney entered an appearance for each defendant. The declaration charged that plaintiff was injured by reason of the negligent operation of an automobile truck operated by the servants of the defendant corporations. Each defendant filed a plea of the general issue, and later a motion for surety for costs and a bill of particulars. Plaintiff made an affidavit of inability to furnish surety and filed a bill of particulars. The case was assigned for trial to January 25, 1926. By agreement of counsel this assignment was vacated, and the case was reassigned to June 25, 1926, then to March 25, 1927, and again to October 21, 1927, at which time the action was tried.

Before opening his case to the jury, plaintiff discontinued the case against the Blackstone Valley Gas & Electric Company. The evidence for plaintiff is that on the evening of November 18, 1924, he stepped out of an automobile in which he had been riding onto the highway; while standing in the street, he was struck and injured by an automobile truck on which was the sign "Pawtucket Gas Company."

Defendant called one witness only, George Stiness. He testified that he was the treasurer of the Pawtucket Gas Company of New Jersey, a corporation chartered under the laws of New Jersey; that this corporation was a holding company, which owned a large majority of the stock of, and did the financing for, the Pawtucket Gas Company, a corporation chartered under the laws of Rhode Island; that the New Jersey corporation did no business in this state in connection with the gas business, and had no property herein, except a few account books; that he was treasurer of the defendant New Jersey corporation and of the Rhode Island corporation, the Pawtucket Gas Company; that the Rhode Island corporation owned and operated trucks in connection with its lighting business, which usually had signs affixed to them. Some had "Pawtucket Gas Company"; others, "P. G. Co."

At the conclusion of the evidence, counsel for defendant moved for the direction of a verdict. Counsel for plaintiff then said to the court:

"I would first like to move, the real party now appearing, it having failed to appear in the case since its inception, that the case be reopened, and that the real defendant, the Pawtucket Gas Company, a Rhode Island corporation, be added a party defendant."

This motion was denied, and a verdict was directed for the defendant. To this plaintiff took exception. By his bill of exceptions the question thus raised is the only one before us.

Plaintiff now claims that the Rhode Island corporation was in fact the real defendant throughout the suit; that Stiness must have known it was the corporation plaintiff intended to sue, because he knew the New Jersey corporation did not carry on any business in this state. But the Blackstone Valley Company is an operating company in this state. The writ simply gave Stiness notice that plaintiff was bringing an action against one or the other defendant described in the writ. The basis of the action was not disclosed until the declaration was filed. It is likely that at that time, if not before, defendants' attorney knew that neither of his clients was responsible for the accident. The pleas of the general issue which he filed were proper. It is claimed that the New Jersey corporation should have filed a plea in abatement, setting out its relation to the Rhode Island corporation; but such a plea, if objected to, would have been held bad, as being nothing other in effect than the general issue. The attorney for the defendants was not the attorney for the Rhode Island corporation. That corporation has never appeared or been represented by counsel...