(107 A.) provided for the unlawful practice or attempt to practice medicine or surgery or any of the branches of medicine or surgery. [1] It cannot be doubted that the practice of osteopathy as authorized by chapter 1058 is the practice of medicine within the meaning of those words as used in section 8, c. 193. State v. Mylod, 20 R. I. 632, 40 Atl. 753, 41 L. R. A. 428; Swarts v. Siveny, 35 R. I. 1, 85 Atl. 33; State v. Heffernan, 40 R. I. 121, 100 Atl. 55. The statute authorizes the licensed prac "It shall be the duty of each town and city clerk to purchase a book of suitable size, to be known as the 'medical register' of each city or town, and to set apart one full page for the registration of each physician." The recognition in the sections referred to of the practitioner of osteopathy as a physician is clear and unmistakable. The osteopath is required to register, and by section 1 he is to be registered as a physician in the titioner of osteopathy to make a diagnosis of "medical register." All physicians get their diseased or abnormal conditions of the human authority to sign medical certificates in cases body and to apply a remedy therefor. This of death by the provisions of chapter 193, of power of diagnosis is not restricted. Having which chapter 1058 is now a part. As the determined, however, the nature and the osteopaths are now authorized to practice cause of the sickness, the practitioner is then medicine in a particular way, as they are rerestricted to the remedy for the ailment which quired to be registered in the medical register must be confined to manipulation of the body; and are subject to the disciplinary control of the method and the extent of the manipula-the board of health by the same general provition is left to the judgment of the practi tioner. parts of the statutes the word "physician" undoubtedly does have the limited meaning of doctor of medicine and not the broader meaning; as in chapter 123, § 54, by which it is provided that liquors are not to be sold, etc., except upon a physician's prescription, and in section 17, c. 178, "Of medicines and Poisons," where it is provided that any phy sions of chapter 193 as all doctors of medicine, so called, we think that the word “phy[2] Section 7, c. 121, of the General Laws sician" in section 2, c. 575, should properly 1909, as amended by section 2, c. 575, Public be construed in its broader meaning to include Laws 1910, provides that in case of death the osteopaths, and that as used in this part of undertaker or embalmer who has charge of the statutes it is not to be confined to its limthe body shall file with the town clerk or reg-ited meaning of doctor of medicine. In some istrar a certificate of death prepared in accordance with section 3 of this chapter. This section also provides that the medical certificate, which is a required part of the death certificate, shall state the cause of death in detail as specified in the statute, and that"The medical certificate shall be made and signed by the physician, if any, last in attend-sician who shall prescribe certain drugs, etc. ance on the deceased. But whenever the body of a person is lying dead in any town or city, who has been unattended in his or her last sickness, by a physician registered to practice in this state, the town or city clerk, or in the city of Providence the city registrar, shall call upon a registered physician, or the medical examiner of the district in which the remains are lying to inquire into and to certify as to the cause and manner of death. Is a registered practitioner of osteopathy a "physician registered to practice" in this state within the fair meaning of these words in this section? We think that he is. There is no express and specific requirement in chapter 1058 which requires an osteopath to register his certificate. The obligation to register is imposed by section 2, c. 193, which is general in its terms and applies to all persons who practice medicine or surgery. The person registering under this section is required to subscribe and verify by oath an affidavit of his age, address, etc., and "the school or system of medicine to which he or she proposes to belong." Section 1 of chapter 193 provides as follows: As osteopaths have no authority to give prescriptions or to prescribe drugs, it is manifest that the word "physician" in these clauses does not include a practitioner of osteopathy. We think that the conclusion we have reached is strengthened by a consideration of the result if the other construction were adopted. In that case we would have this situation: The state by its examination and certificate has certified to the ability of the osteopath to discover the cause of the disease while the patient is alive; but, upon the death of the patient, the osteopath then is to be held to be incompetent and unauthorized to state the cause of death. Such a construction is illogical, and its effect would be to impose in many instances unnecessary hardship and pain on the relatives of the deceased. For the reasons stated, we answer the question in the affirmative. C. FRANK PARKHURST. (42 R. I. 253) (No. 314.) Said action was brought for an alleged unpaid balance for tires thus consigned. Said Broley and Kirk were engaged as copartners in a garage and retail automobile (Supreme Court of Rhode Island. June 20, tire business in the city of Providence, at first 1919.) under the name "Broley & Kirk," and later 17-DECISIONS OF SUPERIOR under the name "Cataract Tire & Garage Company." 1. CERTIOBARI COURT. Where, in action on book account and on the common counts, an auditor was appointed by the parties by agreement, decision of superior court confirming report of auditor is not subject to review by Supreme Court in view of Gen. Laws 1909, c. 293, §§ 10-18, and petition for certiorari will be denied. 2. CERTIORARI BISDICTION. The plea in said cause was the general issue; but a stipulation was entered into between counsel that the defendants could make under said general issue any valid defense with the same effect as if such defense had been specially pleaded. After said cause was ready for trial, the 28(1)—OFFICE OF WRIT-JU- same was, by agreement, submitted to Henry M. Boss, Esq., as auditor, who thereafter heard the parties at various times, and finally on August 20, 1918, filed his report. Said report quite fully reviewed the accounts and the dealings involved in said cause and at the end found that the sum of $1,857.97 was due from the defendants to the plaintiff. The primary office of a writ of "certiorari," unless enlarged by statute, is to review the action of an inferior tribunal taken without jurisdiction, or in excess of the jurisdiction given to it; and such writ ordinarily does not lie to correct error in the exercise of jurisdiction. The defendants, in due course, filed seven exceptions to said auditor's report; the first five of said exceptions, in varying form, relating to the auditor's particular ruling of law which, together with the judge's decision confirming the same, the petitioners are now seeking to have reviewed before this Cushing, Carroll & McCartin, of Provi- court by proceedings under a writ of cerdence, for petitioners. Huddy, Emerson & Moulton, of Providence, for respondent. PARKHURST, C. J. This is a petition for a writ of certiorari, to order the certification of the record in a certain cause, now pending in the superior court, Providence county, to the end that said record, or as much thereof as is illegal, may be quashed. The petitioners are Clarence H. Broley and George Kirk. Said cause in the superior court is entitled, "No. 37601, Robert S. Emerson, Tr., v. Broley & Kirk." It is an action on book account and on the common counts brought by Robert S. Emerson, as trustee in bankruptcy of the Cataract Rubber Company, a corporation, against said Clarence H. Broley and George Kirk, both of North Providence, described in the writ in said cause as "formerly copartners as Broley & Kirk." The petition in bankruptcy was filed against the said corporation on October 23, 1914; and said corporation was adjudged a bankrupt on November 7, 1914. Mr. Emerson was a little later appointed trustee. He commenced said action by writ dated November 22, 1915. The said Cataract Rubber Company dealt at wholesale in automobile tires. In the course of said business, it consigned certain tires to Broley and Kirk for them to sell at retail. tiorari. Later the defendants' said exceptions were heard in said superior court by Mr. Justice Barrows, who, in a rescript and decision ed the auditor's aforesaid ruling of law, handed down on February 21, 1919, confirmoverruled all the exceptions, and confirmed said auditor's report. The petitioners thereafter on February 27, 1919, filed this petition for a writ of certiorari to bring up the record for the purpose of reviewing the decision of the superior court justice in the matters above set forth, particularly the ruling which confirmed the ruling of the auditor disallowing a certain item of set-off to the plaintiff's account and claim which the petitioners claim to have been an error in law. The case was heard in this court May 8, 1919, upon citation to the superior court, the respondent, to show cause why a writ of certiorari should not issue. At that time, by agreement of counsel, the case was heard solely upon the question whether certiorari was appropriate for such a review, which involves the question whether this court will undertake to review the decision of the superior court in a case of this character; all questions of law, as to the validity of the rulings sought to be reviewed, being reserved for future argument, in case this court should find that this procedure is open to the petitioners. Chapter 293 of the General Laws of R. I. (107 A.) (1909), entitled "Of Referees, Auditors, and (writ of error, exceptions, or certiorari, beMasters in Chancery," under which this sub-cause the jurisdiction conferred by law upon mission to an auditor was had, after pro- the inferior tribunal or officer was exclusive. viding in section 10 that in a case at issue in the superior court, "in any way involving accounts, the court, of its own motion, or on the application of either party in a proper case, may appoint one or more auditors," etc., and in sections 10-16 providing for details of procedure by and before auditors, then continues as follows: "Sec. 17. The court, upon the reception of the report, if no cause be shown against the allowance of the same, shall render a decision thereon which shall be final, unless within two days thereafter the plaintiff or defendant shall, in writing, file with the clerk of the court in which said cause is pending a demand for jury trial, if the same has not been waived. "Sec. 18. Every reference to referees or auditors under the provisions of this chapter, when made by agreement of all the parties, shall be deemed a waiver of any claim for jury trial." [1] Under these sections, the respondent contends that, as an auditor was appointed by the parties in the present cause by agreement, there was in consequence a waiver of any claim for jury trial, and that, a jury trial having been waived, the finding of Mr. Justice Barrows which confirmed the report of the auditor is final, and not subject to review by this court in this proceeding; and further contends that this court has no jurisdiction to review the decision of the judge in such a case; and cites in support of that contention the cases of Blanding v. Sayles, 21 R. I. 211, 42 Atl. 872; Blanding v. Sayles, 23 R. I. 226, 49 Atl. 992; and Doane v. Simmons, 31 R. I. 530, 77 Atl. 775. The case of Blanding v. Sayles was before the superior court in several phases on petitions for new trial as reported in 21 R. I. 211, 42 Atl. 872; 21 R. I. 512, 45 Atl. 148; 23 R. I. 226, 49 Atl. 992. The case was substantially like the case of Emerson, Trustee, v. Broley & Kirk, here involved, in that there had been a voluntary agreement by the parties to submit the case to an auditor, the auditor had acted and made his report, and the same was confirmed by a judge of the common pleas division. The case reported in 23 R. I. 226, 49 Atl. 992, after reargument of the questions involved in the case as previously reported, deals with the question of the jurisdiction of the common pleas division in cases of this character under the statute then in force which is essentially the same as that above quoted; the opinion cites numerous cases relating to statutes in other states and in England where it is provided that in certain cases relating to certain matters the decision or judgment of an inferior tribunal or officer shall be "final," and wherein it was held that such decisions or judgments could not be reviewed by an appellate court on appeal, See 23 R. I. 229-233, 49 Atl. 992. The gist of this decision (Blanding v. Sayles, 23 R. I. 226, 49 Atl. 992), so far as it touches the particular question involved in the case at bar, is to be found on pages 236, 237 of 23 R. I., on page 996 of 49 Atl., as follows: "This case is one on a peculiar footing, put there by the voluntary agreement of parties, wherein the common pleas division having upon the express agreement of the parties referred it to an auditor, the duty is devolved upon that division that it, in the words of the statute, upon the reception of the report, if no legal cause be shown against the allowance of the same, shall render such decision thereon as to right and justice shall appertain; such decision to be final, unless within two days thereafter the plaintiff shall, in writing, file with the clerk of the court in which said cause is pending, a demand for jury trial, if the same has not been waived.' As jury trial had been waived, the decision of that division is to be final. "The final disposition of the case depends, not upon a decision of the common pleas division that shall, or may, be sustained by the appellate division on appeal or review, but upon such a decision of the common pleas division as to right and justice shall appertain in its opinion, and such a decision is to be final. "When that division has arrived at such a decision in its own opinion, it will enter judgment and cause an execution to be issued to enforce the same, without reference to or interference by this division. If it renders any decision that under Gen. Laws, c. 246, § 2, or under any other provision of the statute, it thinks it can recall, its opinion, and not ours, is the one to prevail in this case. In brief, the tion in this case, as we think it has, the appelcommon pleas division having exclusive jurisdiclate division has no power in or control over it, and though the common pleas division may make error after error in our opinion, it matters not, for error depends upon the standard of judgment erected, and in this case the Legislature upon the agreement of parties has made the opinion of the common pleas division the standard of judgment. There seems nothing strange to us in this, for the justices of the common pleas like ourselves, the only difference being that the division are members of the Supreme Court chief justice has delegated them to hold court in the common pleas division for the time being, and this peculiar tribunal could not have been imposed upon the parties but by their own agreement.' The above cases were decided before the creation of the present Supreme Court under the provisions of article 12 of Amendments to the Constitution of Rhode Island. After the passage of that amendment and of the Court and Practice Act, under which the Supreme and superior courts were organized, the case of Doane v. Simmons, 31 R. I. 530, 77 Atl. 775, was decided. That case was of a similar character to the case of Blanding v. Sayles, supra, and to the case of Em 106 107 ATLANTIC REPORTER escape from the decision of the superior court, selected and elected their own ultimate trithey have no just cause for complaint. They bunal and must abide by the result. See Blanding v. Sayles, 21 R. I. 211 [42 Atl. 872], and 23 R. I. 226 [49 Atl. 992]." erson, Trustee, v. Broley & Kirk, here under [ of an auditor. As the parties have seen fit, by discussion, in the matter of the voluntary their own voluntary agreement, to permanently agreement to appoint an auditor and to refer close against themselves the only avenue of the case to him, the reference to an auditor, his report, and the confirmation of his report by a judge of the superior court. To this decision the defendants attempted to except, and this court, on plaintiff's motion to dismiss the defendant's bill of exceptions, dismissed the same on the same grounds substantially as above set forth in Blanding v. Sayles, supra, viz., on the ground that the decision of the case by the superior court was final and conclusive and could not be reviewed by this court on exceptions. After setting forth the travel of the case and showing that the parties, having originally the right to claim a jury trial and to take exceptions, might by their voluntary acts waive those rights, and had done so, the court, after quoting the statute, says on page 533 of 31 R. I., on page 776 of 77 Atl.: "It thus appears that the only way to avoid the finality of the decision of the superior court rendered upon an auditor's report is to file a written demand for jury trial within two days thereafter. But it also appears that this can not be done where jury trial has been waived. The same statute further provides: Sec. 423. Every reference to referees or auditors under the provisions of this chapter, when made by agreement of all the parties, shall be deemed a waiver of any claim for jury trial.' This is notice to all parties to a suit that if they so desire they may agree to refer the case to referees or auditors, and by so doing make the decision of the superior court upon the report final and Although the case of Blanding v. Sayles, supra, denied the rights of parties to move for a new trial, and the case of Doane v. Simmons, supra, denied the right to a review based upon a bill of exceptions, the reasoning in both cases is so broad as to include the denial of any right of review by any means, because in cases of this character the jurisdiction of the superior court is exclusive and the decision is final and conclusive. We hold therefore, under the authority of these cases, that this court has no power to review the decision of the superior court in Emerson, Trustee, v. Broley & Kirk, and that the petition for a writ of certiorari must be denied. [2] It may be said in conclusion that the primary office of a writ of certiorari, unless enlarged by statute, "is to review the action of an inferior tribunal taken without jurisdiction or in excess of the jurisdiction given to it; and such writ ordinarily does not lie to correct error in the exercise of jurisdiction." See Cohen v. Superior Court, 39 R. I. 272, 275, 97 Atl. 794, 796. Since it is shown in the case of Emerson, Trustee, v. Broley by the cases cited that the matter involved & Kirk, and the decision thereof, was within the exclusive jurisdiction of the superior court, and that its decision was final and conclusive, it would be a novel and unwarranted use of the writ of certiorari to allow its issue for the purposes set forth in the petition. It is a warning to conclusive in the matter. parties not to agree unless willing to incur the So parties consequences of such agreement. entering into an agreement of this kind can fairly be said to have intentionally relinquished certain known rights, viz., the right to claim a jury trial, and the right to take exceptions to It is not the rulings of the superior court. for us to say that a claim for jury trial after decision upon an auditor's report is an inapPapers in the case of propriate or inconvenient method of procedure; that is a legislative question and not a judicial one. A demand for jury trial is the way pro- Emerson, Trustee, v. Broley & Kirk, to be vided by the Legislature to bring in question the sent back to the superior court, sitting in decision of the superior court upon the report | Providence county. Petition denied. William R. McFeeters, of St. Albans, and Rufus E. Brown, of Burlington, for plaintiff. Porter, Witters & Harvey, of St. Johnsbury, and John W. Redmond, of Newport, for defendant Robie. HASELTON, J. This is an action of tort for injuries that befell the plaintiff in consequence of her stepping through a defective part of a platform owned by the defendant Robie while she was making her way as a customer across the platform into a store owned by the defendant Robie and occupied by the defendant Slayton under a lease from Robie. The case has once before been here on exceptions taken at a former trial. On both defendants, but on review here that that trial the plaintiff had judgment against judgment was reversed, and the cause remanded by reason of errors in the instruction of the court to the jury. 92 Vt. 27, 102 Atl. 88. On the trial under review, the plaintiff, at the close of her evidence, discontinued the suit as to the defendant Slayton, and the jury gave a verdict against the defendant Robie, who will hereafter be spoken of by name or as the defendant. Judgment was rendered on the verdict, and the defendant brings a bill of exceptions. The trial under review will hereinafter be designated as the trial, and whenever there is occasion to refer to the former trial it will be so designated. The transcript of evidence taken on the trial is made a part of the bill of exceptions, and, notwithstanding the testimony of certain witnesses somewhat at variance with the statement of facts in the former opinion in 5. TRIAL 120(2)-ARGUMENT OF COUNSEL- the case, there is before us substantial eviPROPRIETY. In an action against a landlord by an invitee of a tenant, argument of counsel that the landlord stood by and saw his hired man repair the platform through which plaintiff stepped held warranted under the evidence and subject, at most, to mere verbal criticism. 6. TRIAL 210(3) - INSTRUCTIONS-PROPRI ETY. A charge on the inconsistency in the testimony of defendant whose testimony at a previous trial was introduced held warranted and proper. dence tending to show the facts narrated in such statement; and for this reason an extended account of what the evidence now tends to show is unnecessary. Such references to the testimony as is required will be made as the exceptions are taken up. At the close of all the evidence the defendant moved that a verdict be directed in his favor. His motion was overruled, and he excepted. Two grounds of the motion are briefed. [1, 2] The first ground is that, as matter of law on the evidence, Robie did not have control of the platform, and that the burden of Exceptions from Caledonia County Court; repairs was not on him. This ground of the Leighton P. Slack, Judge. Action by Ida May Beaulac against L. S. Robie and another. At the close of her evi dence, plaintiff discontinued as to the unnamed defendant, and, verdict and judgment having been rendered against the named de fendant, he excepted. Judgment affirmed. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. motion we now consider. The platform in question was in front of and appurtenant to a store building that entire building to one tenant the sole control Robie had leased, and, had Robie leased the of the platform would, in the absence of evidence to the contrary, have been that of the tenant. But such was not this case. A part of the ground floor of the building in question, the store proper, was under a lease to Slayton For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |