Senn v. Kogut
| Decision Date | 27 June 1952 |
| Citation | 89 A.2d 842,79 R.I. 429 |
| Parties | SENN v. KOGUT. Ex. 9278. |
| Court | Rhode Island Supreme Court |
Fred Israel, Woonsocket, for plaintiff.
Samuel H. Brenner, Woonsocket, for defendant.
This is an action of trespass on the case for alienation of affections. After a trial in the superior court the jury returned a verdict for the plaintiff for $5,000. Thereafter defendant filed a motion for a new trial which was denied by the trial justice. The case is here on her bill of exceptions containing exceptions to such denial, to a ruling before trial overruling her demurrer to plaintiff's declaration, to numerous rulings on the admission of evidence during the trial, and to the trial justice's refusal to charge the jury as requested.
At the hearing before us defendant did not brief and argue all the exceptions set out in her bill. In accordance with our well-established rule those exceptions which were neither briefed nor argued are deemed to be waived. Moreover, it is not always apparent from her brief precisely which exception or exceptions are being pressed, as she has not specifically briefed her several contentions as is required by rule 15 of the rules of practice of this court. Instead of duly numbering each specific question raised under the appropriate exception or exceptions and also numbering each point made in the discussion of such question accompanied by citation of authorities relied on in support thereof, she has argued more or less indiscriminately thus leaving open to surmise which exception she is discussing.
As far as we have been able to gather from such general argument in her brief she contends that the superior court erred in overruling her demurrer to the declaration. She grounded her demurrer on the claim that nowhere in the declaration does it appear what was the nature of the act or acts alleged to have been committed by her which led to the alleged alienation of affections complained of, and further that the declaration was so vague and uncertain that it failed to set forth a cause of action. The gist of the declaration is as follows:
'For that, whereas, the defendant contriving and wickedly intending to injure the plaintiff, and to deprive her of the society and assistance of Rene Senn, the husband of the plaintiff, on to wit, the 27th day of May, A.D. 1946, and on divers other days between that time and the commencement of this suit, at Woonsocket in the County of Providence and State of Rhode Island, did wilfully and maliciously destroy and alienate from the plaintiff the affections then and there had by the said Rene Senn, then and there the husband of the said Anita Senn, the said Anita Senn in no wise consenting thereto, by means whereof the plaintiff has from thence hitherto wholly lost and been deprived of the society, affections, assistance and comfort of the said Rene Senn, her said husband, in her domestic affairs, which the plaintiff during all of said time ought to have had.'
Her chief objection is that such statement does not allege facts but a conclusion of law and therefore the declaration does not sufficiently apprise her of the specific offenses charged so that she can properly prepare her defense. We are not satisfied that such contention is correct. In Lanca v. Central Engineering & Construction Co., 75 R.I. 365, 66 A.2d 638, this court upheld the overruling of a demurrer to a somewhat similar allegation that defendant had unreasonably and unnecessarily obstructed a public way by reason whereof plaintiff was injured. We rejected the claim that such allegations were conclusions of law and held them to be allegations of fact. If the defendant there required further information thereon in order properly to prepare his defense, we said he could obtain it by a motion for a bill of particulars, provided the requests for such particulars were reasonable and not designed primarily to obtain plaintiff's evidence. In the case at bar the overruling of defendant's demurrer can be justified on like reasoning.
However, even assuming that the declaration was subject to demurrer, we think that defendant takes nothing by her exception, because thereafter she filed a motion for a bill of particulars which was granted, whereupon plaintiff duly filed the particulars requested and the case proceeded to trial on the declaration as thus supplemented and limited. Such bill of particulars supplied defendant with the information which she claimed was necessary for her properly to prepare her defense. Thereby the declaration was substantially made as explicit and definite as defendant sought in effect to have it made by her demurrer. In such circumstances whether or not the declaration as originally filed was demurrable as being too vague and indefinite is of no consequence. Under General Laws 1938, chapter 542, § 12, it is expressly provided that '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.'
Applying that statute, this court in Shepard Land Co. v. Banigan, 36 R.I. 1, 87 A. 531, refused to entertain six exceptions to decisions and rulings of the superior court prior to trial because it found that such rulings and decisions did not erroneously affect the final decision on the merits. In O'Brien v. Moskol, 45 R.I. 486, 489, 123 A. 568, 569, this court again applied the statute where a demurrer to the declaration on the ground of misjoinder of counts had in its opinion been erroneously overruled by the superior court. 'We regard the ruling upon the demurrer', the court said, 'as questionable if not erroneous; but, if it should be held to be erroneous, the defendant takes nothing by his exception.' And after quoting the statute in full it continued:
This court has similarly applied the statute to an exception to the denial of a motion to dismiss for want of jurisdiction, Bridges v. Bridges, 46 R.I. 191, 125 A. 281, and to an exception to the superior court's denial of a motion to quash, Cummings v. Church, 50 R.I. 71, 145 A. 102. And in Ferra v. United Electric Rys., 52 R.I. 7, 155 A. 668, 671, while it considered and sustained an exception to the overruling of defendant's demurrer to plaintiff's declaration, it did so only because it had sustained another exception to the trial justice's charge to the jury and the case necessarily was going back for a new trial. 'Under the provisions of section 5132, Gen.Laws 1923 [now G.L.1938, chap. 542, § 12], this exception,' the court said,
From the foregoing it...
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Miner v. Commerce Oil Refining Corporation, Civ. A. No. 2721.
...is not barred by the Statute of Limitations." See also, Cabakov v. Thatcher, 1953, 27 N.J.Super. 404, 99 A.2d 548. In Senn v. Kogut, 1952, 79 R.I. 429, 89 A.2d 842, the Supreme Court held that the statutory provision which is now said 2 Gen.Laws of R.I. Section 9-1-16, was the statute fixin......
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Bailey v. Huling, 75-260-A
...cause of the breakup of the marriage? ' " In answering these questions the trial justice quoted the following from Senn v. Kogut, 79 R.I. 429, 437, 89 A.2d 842, 846 (1952), which is settled law in this "(I)f the jury found from the evidence that defendant's conduct was the procuring or cont......
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Church v. McBurney, 85-86-A
...conclusion that it is not one for "injury to the person." In Commerce Oil the court specifically endorsed the holding in Senn v. Kogut, 79 R.I. 429, 89 A.2d 842 (1952), to the effect that an action for alienation of affections, though an action "of the case," was not one for personal injuri......
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McSoley v. McSoley, 9603
...treated here as not having been properly briefed and are therefore waived. Joseph v. Di Guilio, 60 R.I. 286, 198 A. 333; Senn v. Kogut, 79 R.I. 429, 431, 89 A.2d 842. Under point III contestants list sixteen exceptions to the admission of testimony and two exceptions to the introduction of ......