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(107 A.)

The macadam, however, is paralleled upon [ find a verdict for the defendant. A number of either side by a narrower strip of "dirt road," witnesses for the defendant testified to the so called, upon which moving vehicles may effect that the plaintiff did not have any safely and properly encroach. At the time lights upon his carriage, and that the light of the accident, the plaintiff was driving with at the place of the accident was barely suffihis right wheels upon the strip of dirt and cient to enable a person to see the plaintiff's his left wheels upon the macadam. The vehicle a few feet away. It is not too much defendant was driving his automobile en- to say that the preponderance of the testitirely upon the macadamized part of the mony upon both questions was in favor of road and was not therefore as far to the the defendant. The defendant's witnesses right as the plaintiff. While the plaintiff and appear to have given their testimony in a the defendant were thus proceeding, the clear, plain and straightforward manner. letter saw another automobile approaching The jury had a right to believe them, and from the opposite direction with bright head- the verdict shows that they did believe them. lights. Upon coming nearer, the driver of In the case of Wilcox v. Rhode Island Co., the approaching automobile dimmed his 29 R. I. 292, 70 Atl. 913, commonly referred lights, whereupon the defendant did likewise. to as the Wilcox Case, this court said in the Almost immediately, and too late to avoid course of its opinion, referring to nisi prius a collision, the defendant discovered the car- courts: riage of the plaintiff only a few feet ahead of him. The right-hand end of the fender of the automobile struck the left-hand rear wheel of the carriage.

The case was tried to a jury in the superior court. The defendant claimed, and offered testimony to show, that the plaintiff was traveling without any light upon his carriage visible to a person approaching from the rear; that the street was not well lighted at the locus of the accident; that the night was somewhat cloudy; and that under the conditions existing he could not have discovered, by reasonable vigilance, the presence of the carriage in time to avoid it.

The questions presented for the consideration of the jury were: (1) Did the plaintiff have any lights upon his carriage? and (2) was the place of the accident sufficiently illuminated to have enabled the defendant, if he had been in the exercise of proper care, to have seen the plaintiff's carriage in time to escape a collision?

The jury rendered a general verdict for the defendant, and also found specially that the plaintiff's carriage was without lights. Upon motion of the plaintiff, a new trial was granted by the trial judge, and the case is now before this court upon the exception of the defendant to that ruling.

The trial judge, in granting the plaintiff's motion for a new trial, did not file any rescript pointing out his reasons for so doing. The meager indorsement upon the file wrapper indicating that the plaintiff's motion for a new trial had been heard and granted is all that is vouchsafed to us. When the transcript of testimony is turned to and examined with a view to discerning something which might have actuated the trial judge in his decision, or at least might explain or account for his attitude upon the motion for a new trial, the difficulty is increased, rather than lessened, and the effort to discover something in that line fails.

There is much testimony of a substantial character upon which the jury might well

"Those courts ought to independently exercise their power, to grant new trials, and, with entire freedom from the rule which controls appellate tribunals, they ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice to the parties in the case."

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In view of the Wilcox Case, the majority of this court take the position that it is precluded from any consideration of or inquiry into the justness of the decision of trial courts in matters of new trial, except when there is found to be an error of law or an absence of any supporting testimony. cepting, for the sake of the argument, the principle or the practice sought to be established by the above-quoted language from the Wilcox Case, and giving to it all the force and breadth which can be reasonably claimed for it, is this court so bound by it that it cannot, in a case like the present, sustain the exception when no reason appears for the action of the trial court and there is abundant testimony to sustain the verdict of the jury? I cannot believe that the language in question restricts or should restrict the ac tion of this court to such an extent.

The overruling of the exception in this case is practically saying that the trial judge may, without any discernible reason or upon his mere whim or caprice, grant or deny a motion for a new trial, and that this court is powerless to correct the error. It does not seem possible that the court, in announcing its decision in the Wilcox Case, could have intended to place itself in such a helpless situation. Taking the language of the Wilcox Case as it stands, it should not, in my opinion, be so construed as to form a barrier beyond which this court cannot go in a case like the present, where the record furnishes no reason for the action of the trial court and the imagination fails to supply one.

Such a construction is pro tanto an abrogation of the powers conferred upon this court by our Constitution and by our statute. By

"The Supreme Court shall have final revisory and appellate jurisdiction upon all questions of law and equity and shall also have such other jurisdiction as may, from time to time, be prescribed by law."

section 1, art. of Amendment 12, of the Con- j rule stated as to the duty of nisi prius courts stitution of Rhode Island, it is provided in the matter of motions for new trials. In thatthat case the defendant's motion to set aside the verdict on the ground that the evidence was not sufficient to sustain it was denied by the trial court. In some way it appeared on appeal, though in what manner is not disclosed, that the decision of the trial court was based upon the assumption that a new trial would not avail the defendant, and that the questions might as well be settled by the Supreme Court under the trial already had. But nevertheless the Supreme Court examined the testimony, found it insufficient to support the verdict, and reversed the judgment of the court below; the court including in its opinion the dictum which is now the basis of the Wilcox Case.

By section 2 of chapter 1 of the Court and Practice Act passed at the January session of the General Assembly, 1905, and now section 2 of chapter 272, General Laws of 1909, it is provided that

"The Supreme Court shall have general supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly provided."

The language of the Wilcox Case, decided in 1908, so far as it bears upon the point in question, is merely a pronouncement of this court, and, if it is not possible to give to it a more liberal interpretation than the majority opinion would seem to indicate, it should be modified to the end that this court may again exercise the powers which the Constitution and statute confer upon it and which will enable it to deal more satisfactorily with cases like the one at bar.

Looking at the Wilcox Case and examining the authorities therein cited and upon which it rests, it is found to be destitute of any secure or stable foundation. It will not be disputed that the value of an authority must be determined by taking into account the particular Constitution and statutes of the state under which the decision is rendered, and that in another state such authority is worthy of consideration only when, and so far as, the powers conferred by the Constitution and statutes of the one state are in harmony with the powers conferred by the Constitution and statutes of the other.

The portions of the opinion in the Wilcox Case which relate to the question now being discussed are founded upon two cases therein cited. Dewey v. Chicago & N. W. R. R. Co., 31 Iowa, 373, and Clark v. Great Northern Railway Co. et al., 37 Wash. 537, 79 Pac. 1108, 2 Ann. Cas. 760. These cases may be conveniently referred to as the Iowa case and the Washington case.

The Washington case closely follows the Iowa case. In neither of these two states does the Constitution or the statute confer upon the Supreme Court the broad and explicit powers which are conferred upon our court by our Constitution and our statute. The Constitution of Iowa, art. 5, § 4, provides that—

"The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law."

In the Iowa case, decided in 1871, the court cites no authority in support of the

The Constitution of Washington, art. 4, § 4, provides that

"The Supreme Court shall have original juand mandamus as to all state officers, and aprisdiction in habeas corpus and quo warranto pellate jurisdiction in all actions and proceedings," and "shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction."

In the Washington case, the court cites some authorities, in addition to the Iowa

case, to the effect that, where the trial judge is convinced that the verdict is clearly against the weight of the evidence, it is his duty to grant a new trial. Such authorities have no application to a case like the one at bar, where it is obvious to any one that the verdict is not against the weight of the evidence, but rather in accordance with it. In the Washington case the lower court had denied the motion for a new trial, and the Supreme Court reversed that decision upon court had "failed to properly exercise the two grounds, one of which was that the trial power and discretion vested in it."

237, 78 Atl. 1012, Ann. Cas. 1912D, 1223, decided in 1911, this court followed and approved the doctrine proclaimed in the Wilcox Case, and in further support thereof cited the case of Kansas Pac. R. Co. v. Kunktion of the opinion of Mr. Justice Brewer in el, 17 Kan. 172, and quoted from that porwhich he distinguished the powers of trial and appellate courts as follows:

In McMahon v. Rhode Island Co., 32 R. I.

"The functions of the two are widely dissimilar. The one has the same opportunity as the dence to be placed in the various witnesses, jury for forming a just estimate of the creand, if it appears to him that the jury have found against the weight of the evidence, it is his imperative duty to set the verdict aside. We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would

(107 A.)

naturally and fairly come to different conclu- | suggestion that plaintiff had given birth to a sions thereon, he has no right to disturb the child, was harmless in view of a previous statefindings of the jury, although his own judgment ment to that effect. might incline him the other way."

The language above quoted does not sanction the application of the Wilcox Case to the case at bar, but, on the contrary demonstrates the preposterousness of any attempt to so apply it. The language referred to not only protects the verdict of a jury from any interference on the part of the trial court in cases like the one at bar, where there is a preponderance of testimony, but it also goes much further and condemns the interposition of the trial court in cases where the evidence is nearly balanced as well as in cases where different minds would naturally and fairly come to different conclusions.

Our Constitution and statute confer upon this court broad and specific powers and impose upon it a definite duty. It is charged with a "general supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein." No such ample or comprehensive powers are conferred upon the Supreme Court of either of the states mentioned, by Constitution or statute. Therefore, being without any substantial foundation, the authoritative value of the Wilcox Case becomes insignificant, if it is not wholly lost.

I do not contend that the so-called principle of the Wilcox Case should not be applied in some cases where the record discloses circumstances warranting its application, but to impute to it an importance sufficient to stifle all freedom of action on the part of this court in cases like the one at bar, in my opinion, amounts to a denial of justice. The defendant's exception should be sustained.

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3. TRIAL 133(6)-REMARKS OF COUNSELERROR CURED BY COURT'S CHARGE.

In action for breach of marriage promise, misconduct of plaintiff's counsel in stating to the jury that he expected to prove that plaintiff had given birth to a child was not prejudicial to the defendant, where the court charged the jury to disregard the improper remarks, and it is improbable that the jury was influenced by such conduct.

4. APPEAL AND ERROR 1060(1)—REVIEW— HARMLESS ERROR-CONDUCT OF COUNSELCURED BY EVIDENCE.

In action for breach of marriage promise, conduct of plaintiff's counsel in stating in the jury's presence that a child had been born and in asking a question that possibly suggested that fact was not prejudicial to the defendant, in view of his own testimony and that of his witnesses showing illicit intercourse and that a child was born. 5. TRIAL 168 DIRECTED VERDICT GROUNDS-MISCONDUCT OF COUNSEL.

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Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge.

Question asked defendant on cross-examination by plaintiff's counsel, in breach of marriage promise suit, as to whether he promised plaintiff that he would "marry her when a certain event occurred," if error as conveying the Murphy. Verdict for plaintiff, new trial de

Action by Alice Parkinson against Edward

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

nied defendant, and defendant excepts. Ex- that plaintiff's counsel had stated to the jury ceptions overruled, and case remitted.

Murphy, Hagan & Geary, of Providence (John F. Murphy, of Providence, of counsel), for plaintiff.

George A. Breaden, of Providence, for de

fendant.

PER CURIAM. This is an action in assumpsit brought to recover damages for alleged breach of promise to marry. After a trial in the superior court, resulting in a verdict for the plaintiff for $1,000, the defendant made a motion for a new trial on the following grounds, viz.: (1) That said verdict is against the law; (2) that the verdict is against the evidence; (3) that the verdict is against the law, the evidence, and the weight thereof-which motion was denied, and the case is before this court on the defendant's bill of exceptions.

[1] The defendant states his first exception as follows:

"To the ruling of the court in allowing the plaintiff's counsel in his opening address to touch upon evidence to be introduced in plaintiff's behalf showing or indicating conduct on the defendant's part amounting to seduction and allowing the admission of evidence along that line."

For convenience we will consider the latter part of this exception first; that is, the "allowing the admission of evidence along that line." Plaintiff's counsel was permitted to ask defendant on cross-examination the following question: "Did you about January 1, 1915, promise Miss Parkinson that you would marry her when a certain event occurred?" to which question defendant answered, "No, sir." The question in no way suggests seduction or "conduct on the defendant's part amounting to seduction." Defendant argues that plaintiff's counsel by asking this question suggested that plaintiff had given birth to a child.

[2] There was nothing in the question to suggest to what event counsel had reference; but, assuming that the question conveys the suggestion that plaintiff had given birth to a child, it is, at most, a repetition of the previous statement to that effect.

that he expected to prove that plaintiff had given birth to a child. It is unnecessary to consider whether the conduct of counsel was

prejudicial, as a new trial ordinarily will not be granted on account of misconduct of counsel when the court, in the exercise of its sound discretion, refuses to pass the case, but charges the jury to disregard the improper remarks and especially when it is improbable that the jury was influenced by counsel's misconduct.

The court charged the jury that

"It [proof of seduction] is not allowed for any purpose, either for the purpose of proving or disproving the promise of marriage or to increase or minimize the amount of damages if a promise to marry is proven."

[4] Was counsel's conduct prejudicial to the defendant? In this connection it is per tinent to examine the testimony of the defendant and certain witnesses called on his behalf. The defendant voluntarily testified that "she," meaning the plaintiff, "wanted me to keep her; she wanted me to buy her clothes for her"; that for a considerable time he gave her money for living expenses and that he bought her clothes; that at one place where they were living "she was supposed to be my wife"; that for more than three years they lived together as man and wife; that he paid $600 or $700 a year for her clothes; that she had credit at the various stores and that he paid the bills; that during the months of January and March, 1917, he asked her several times to get a license and marry him; that he "insisted on marriage from January 1, 1917, to the time suit was brought." George E. Parkinson, called as a witness on behalf of defendant, testified in response to a question asked by defendant's counsel, "I put the question up to Mr. Murphy in regard to the event; that under the conditions they were living under that the baby had got to have a name." George A. Waugh, called as a witness on behalf of defendant, testified in direct examination that plaintiff and defendant lived at witness' rooming house as man and wife; also that defendant, in the presence of witness, addressed the following language to the plaintiff, "I think it is about time we gave this child a name, and I am willing to take you and go down and get married to the city hall now or any time." On cross-examination Irene L. Perkins, another witness called on behalf of the defendant, testified relative to the child.

[3] The first part of this exception relates to the conduct of plaintiff's counsel in his opening remarks to the jury. No exception was taken at the time, and consequently the statement objected to was not spread on the record. After the plaintiff had testified to some little extent defendant's counsel moved In view of the foregoing testimony of dethat the case be taken from the jury for fendant and three witnesses called on his bethe reason that plaintiff's counsel had in half, the defendant should not be permitted opening his case made statements prejudicial to complain that the plaintiff's counsel had to the defendant. The jury was taken from stated in the presence of the jury that a the court room, and there was considerable child had been born or that counsel had askdiscussion between court and counsel. From ed a question that possibly suggested that the record of this discussion it is evident fact. The plaintiff made no claim that she

(107 A.)

had been seduced by the defendant under made a demand? A. But I never done anypromise of marriage or otherwise. There thing like that."

was evidence, the major portion of which was supplied by the defendant, that the parties were guilty of continued illicit intercourse, and as a result of intercourse between the parties the plaintiff gave birth to a child. If, in spite of the charge of the justice presiding at the trial, the jury was prejudiced by this line of testimony, it was the fault of the defendant. After listening to the testimony of the defendant and the witnesses called on his behalf, the jury could not have been greatly influenced by the statement and suggestions made by the plaintiff's counsel. The defendant chose to prove the very facts which he contends should have been concealed from the jury. No point is made that the damages are excessive and the damages are not excessive. 38 Cyc. at page 1509, lays down the rule as follows:

"To warrant a reversal it must appear probable that the act complained of influenced the jury in arriving at their verdict."

The first exception is overruled. The second, third, fourth, fifth, sixth, and seventh exceptions are without merit and require no discussion.

[5] The eighth exception is as follows: "To the refusal and denial of the trial court to direct a verdict for the defendant upon his motion based upon the following grounds: (a) Plaintiff's counsel in his opening address to the jury clearly indicated to them by language unmistakable that a child had been born of this so-called common-law marriage; (b) that plaintiff had failed to show that she had complied with the law before bringing suit, that is to say, she made no request or demand upon the defendant to comply with his promise."

Whatever may have been the conduct of plaintiff's counsel, the defendant thereby is not entitled to a direction of a verdict in his favor.

[6] The plaintiff contends that she did request defendant to marry her. It is by no means clear that the plaintiff understood what defendant's counsel meant when she testified in answer to his questions relative to making a demand upon the defendant to comply with his promise. The questions and answers are as follows:

The plaintiff was later recalled, and she again testified on this subject:

"Q. Mr. Murphy testified that you never did request him to marry you; is that true or untrue? A. That's untrue."

From all of the testimony it would not have been unreasonable for the jury to have found that after a reasonable time had elapsed after the promise the plaintiff did request defendant to marry her.

[7] Plaintiff further testified as follows: "Q. Did he fix any time when he would carry out his promise? A. Yes, sir. Q. And has he carried out his promise? A. No, sir."

If the defendant promised to marry the plaintiff on a certain date, and defendant did not marry her on that date, she being ready and willing to marry him on said date, the action could be maintained even although plaintiff did not request defendant to marry her. Clark v. Corey, 24 R. I. 137, 52 Atl. 811, and cases cited.

[8] Did the defendant tell the plaintiff that he did not intend to marry her? If he did not intend to marry her and he brought this fact to her knowledge no demand was necessary. Kelley v. Brennan, 18 R. I. 41, 25

Atl. 346.

When plaintiff was working in the defendant's market she did not return from lunch one day as soon as defendant desired, and it is evident that the parties quarreled. The plaintiff testified relative to this matter in part as follows:

"Q. What did you tell him when he told you to get out? A. He wanted to know why I don't get back on time. I asked him if he wished me to bring my bed down and have my breakfast and lunch there all the time. 'No' (using an oath), he said, 'you can get right out on Monday. I don't want to have nothing more to do with you.'"

[9] Whether or not this testimony was true was a question for the jury. If the jury believed the testimony, they might very properly say that the defendant had served notice on the plaintiff that he would not marry her. The eighth exception is overruled.

The case was properly submitted to the jury. The judge presiding at the trial denied the defendant's motion for a new trial, and we find no reason for disturbing the verdict of the jury.

"C. Q. You personally never made a demand upon him to marry you? That is clear enough; yes or no. A. I don't know what you mean by a demand. C. Q. You don't know what deAll of the defendant's exceptions are overmand means, and yet you're a bookkeeper? A. ruled, and the case is remitted to the suI take a demand, to take it to a lawyer, or perior court, with direction to enter judgsomething of that kind. C. Q. But you never ment on the verdict.

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