Paradise v. Rick, 8122.

• Decision Date: 18 July 1939
• Docket Number: No. 8122.,8122.
• Citation: 7 A.2d 713
• Parties: PARADISE v. RICK.
• Court: Rhode Island Supreme Court

7 A.2d 713

PARADISE

v. RICK.

No. 8122.

Supreme Court of Rhode Island.

July 18, 1939.

Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Action on the case by Joseph Paradise against Charles A. Rick, executor of Bella Malone, deceased, based on a claim for services. A verdict for plaintiff resulted, and the defendant filed a motion for a new trial, which was denied. On exception by the defendant to the denial of the motion for new trial.

Exception sustained and case remitted to the superior court for a new trial.

Woolley, Blais & Quinn, of Pawtucket, and Walter J. Hennessey, of Providence, for plaintiff.

Thomas P. Corcoran and Charles E. Mangan, both of Pawtucket, for defendant.

CONDON, Justice.

This is an action on the case, based on a claim for services, against the estate of Bella Malone, late of the town of Lincoln, deceased. The trial of the case in the superior court resulted in a verdict for' the plaintiff and the defendant thereupon filed in that court a motion for a new trial on the usual grounds. This motion was denied by the trial justice. The defendant duly excepted to this denial and has brought to this court his bill of exceptions, containing this exception and others which he took during the trial.

The defendant is the duly appointed and qualified executor of the last will and testament of the aforesaid Bella Malone; and his wife, Anna S. Rick, is one of the principal beneficiaries under the will. The plaintiff was a neighbor of Bella Malone's in the village of Saylesville in the town of Lincoln in this state. He lived there since 1917, when he moved from his former home in Fall River, Massachusetts. He claims to have worked on and around Bella Malone's real estate in Saylesville, painting, papering, carpentering, and otherwise tending to the general repair and maintenance of such real estate until the funeral of her husband, James Malone, in May 1937. He also testified that he did no work thereafter, because he was not allowed admittance to the Malone home as he formerly had been; that he never received any compensation for his work, although he claims that Bella Malone promised him, on several occasions, that he would be paid for all that he had done; and that he need not worry about it.

The defendant's theory seems to be that the plaintiff's claim is improbable and unbelievable in view of the evidence of Bella Malone's prompt payment of all her debts when they became due, and of the plaintiff's long delay in demanding payment for his services and his failure in not keeping any record, either of the many items of work and labor which he claims to have performed or of the charge which he made therefor. The defendant's theory also involves a further contention to the effect that, if the services were actually rendered and if they were not paid for, there is no evidence in the record which furnishes a reasonable basis on which the damages awarded by the jury can be supported.

These and other contentions, which we shall notice as we proceed, are brought to this court by the defendant's bill of exceptions containing twenty-two exceptions. However, the defendant has argued and briefed here only three of those exceptions as follows: To the admission in evidence of the probate court record of the estate of Bella Malone; to the exclusion of the claim filed by the plaintiff against the estate of James Malone; and to the denial of defendant's motion for a new trial. In accordance with our well-established rule the other exceptions being neither briefed nor argued are waived.

Did the trial justice err in admitting in evidence the probate court record of the estate of Bella Malone? The admission of such a record in a case of this kind should be allowed with caution. There are cogent reasons in support of defendant's contention that the jury should not be permitted to take into the jury room such a record containing irrelevant and immaterial items which might tend to prejudice their minds and perhaps lead them astray from the true issue or issues of fact submitted for their determination. The instant case, however, presents certain issues concerning which the probate court record cannot be said to be wholly irrelevant and immaterial.

The trial justice was compelled to rule on this question at the very threshold of the trial. He did not decide it out of hand from the bench but took time over a recess period to consider it, and also to hear arguments of counsel, after which he came to the conclusion that he ought to admit the record in evidence. At the time of its admission, however, he then and there specifically instructed the jury concerning the purpose for which the record was being admitted and charged them clearly that they were to consider it only for that purpose. And later, at the conclusion of the evidence, when he came to charge them on the whole case, he again specifically and forcibly instructed them as to the extent to which they could consider the probate court record in coming to their verdict.

Under all the circumstances of the instant case we are of the opinion that the trial justice did not commit prejudicial error in allowing the admission in evidence of the probate court record, surrounding its admission as he did with timely and repeated instructions to the jury in regard to the purpose thereof. In the consideration of this point we have found some assistance in the plaintiff's citations of authority, although they do not deal with precisely the situation presented by the admission of the probate court record in the instant case. Marx v. Marx, 127 Md. 373, 96 A. 544; Palmer v. Lodge, 7 Boyce 537, 30 Del. 537, 109 A. 125; Leonard v. Gillette, 79 Conn. 664, 66 A. 502; Stetson v. Caverly, 133 Me. 217, 175 A. 473.

We have not found any case in this state which has definitely passed on the point and it is quite likely that there is none. However, in Ash v. Isaacson, 59 R. I. 407, 195 A. 700, we did have occasion recently to inquire somewhat into the question. From the consideration which we gave the matter then and from the consideration which we have given to it in the instant case, we are of the opinion that no inflexible "rule of admission can be safely laid down. Each situation must be dealt with as it arises on its own peculiar circumstances.

The next question is: Did the trial justice err in his refusal to admit in evidence defendant's exhibit 3 for identification? This exhibit is the statement of claim made by the plaintiff against the estate of James Malone. It was for twelve years' services and amounted to $7,152.

The defendant contends that it should have been admitted, as the claim appears to cover identically the same period included in his claim against Bella Malone, and also, as it is apparent from the plaintiff's evidence, that much of his case is dependent upon what Mr. and Mrs. Malone had each said to Paradise in the presence of the other regarding his services. The defendant contends, moreover, that it was relevant...