New England Transp. Co. v. Rodrigues, 2207

• Decision Date: 19 June 1953
• Docket Number: No. 2207,2207
• Parties: NEW ENGLAND TRANSP. CO. v. RODRIGUES. Equity
• Court: Rhode Island Supreme Court

Page 264

98 A.2d 264

80 R.I. 414

NEW ENGLAND TRANSP. CO. v. RODRIGUES.

Equity No. 2207.

Supreme Court of Rhode Island.

June 19, 1953.

On Motion for Reargument July 17, 1953.

William E. Boyle and William J. Carlos, Providence, for petitioner.

William R. Goldberg, Pawtucket, for respondent.

CONDON, Justice.

This is an employer's petition for review of an agreement for workmen's compensation. The superior court granted the petition and the respondent claimed an appeal but failed to file with his reasons of appeal a transcript of the testimony as provided by general laws 1938, chapter 300, article III, § 7. For that reason, on petitioner's motion the superior court dismissed his appeal. From the decree dismissing the appeal respondent has appealed to this court.

In prosecuting the instant appeal respondent intentionally omitted to file a transcript, since the motion to dismiss was considered and decided by the superior court solely on statements of counsel and without any evidence. Nevertheless petitioner contends that we should dismiss this appeal for the same reason that the trial justice granted its motion to dismiss the original appeal. In support of that contention it cites Plouffe v. Taft-Peirce Mfg. Co., 72 R.I. 487, 53 A.2d 529. The petitioner appears to be under the impression that the appellant in that case desired to raise only a question of law unrelated to the evidence. That is not so. We dismissed the appeal there because the issue which the appellant intended to argue necessarily involved consideration of the evidence. But we pointed out later in denying the appellant's motion for a reargument, Id., 73 R.I. 215, 54 A.2d 417, 418, that if the appeal had raised 'a pure question of law, depending in no way on any evidence or finding of fact' a transcript would be unnecessary.

In the instant case, at the hearing in the superior court on petitioner's motion to dismiss, not only was no testimony taken but no finding of fact was made upon which the trial justice based his ruling. The question which he decided was solely one of law in no way dependent upon evidence. Nor did his ruling on the motion involve any exercise of his discretion. On the contrary the motion called for a ruling on a clear-cut matter of law, namely, whether respondent was entitled to prosecute his appeal notwithstanding that he had admittedly not complied with the provision of the statute requiring the filing of the transcript of testimony together with his reasons of appeal. In the circumstances here a transcript of the hearing on the motion would serve no useful purpose and it is therefore not necessary in order for us to determine whether or not as a matter of law the trial justice erred in granting the motion to dismiss.

The original appeal was apparently predicated primarily on certain questions of law, the consideration of which involved the testimony of three medical witnesses. The respondent in prosecuting his appeal recognized that fact and obtained a transcript of the testimony which he intended to file and mistakenly thought he had filed with his reasons of appeal within the time fixed therefor. He was apprised of that mistake when he was served with petitioner's motion to dismiss the appeal because he had not duly filed the transcript together with his reasons of appeal. Instead of requesting the trial justice to fix a new time within which he might file the transcript, he elected merely to oppose the motion to dismiss on the ground that because his reasons of appeal had been filed in time he should have been allowed to file the transcript forthwith, especially since only the time originally fixed had expired and there had been no extensions previously granted.

The trial justice quite properly disregarded that argument on the motion before him. If it had any merit it should have been made by respondent in support of a formal request to the court, in accordance with G.L.1938, chap. 300, art. III, § 7, to fix a new time within which he might file the transcript. Such a request would have invoked the exercise of the trial justice's discretion to grant him relief from his mistake and if refused could have been reviewed here for abuse of discretion. On the motion to dismiss there was clearly no room for the exercise of such discretion. If respondent needed a transcript to prosecute his reasons of appeal in this court, and apparently he assumed that he did in opposing the motion to dismiss in the superior court, then the trial justice did not err in dismissing his appeal, as the record disclosed that the transcript had not been filed together with his reasons of appeal as required by G.L.1938, chap. 300, art. III, § 7.

However, in this court respondent argued that his appeal should not have been dismissed in any event, because one reason of appeal raised a question of law which was not dependent on the evidence. In support of that contention he relies upon Sormanti v. Deacutis, 77 R.I. 507, 77 A.2d 919. In that case in denying plaintiffs' motions to...