Rhode Island : three centuries of democracy, Vol. II, Part 29

Author: Carroll, Charles, author
Publication date: 1932
Publisher: New York : Lewis historical Pub. Co.
Number of Pages: 716

USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. II > Part 29

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** Chafee vs. Quidnick Company, 14 R. I. 75.

*#Chafee vs. A. & W. Sprague Manufacturing Company, 14 R. I. 168.

*§King vs. Quidnick Company, 14 R. I. 131.

** Union Company vs. William Sprague et ux., 14 R. I. 452.

#*Union Company vs. Whitely, 15 R. I. 27.

*Chafee vs. Sprague, 15 R. I. 135.

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curious changes. Justice John H. Stiness, who wrote most of the decisions in the Sprague cases and participated in others, was regarded by William Sprague as his worst enemy. Yet a son of Justice Stiness, Henry W. Stiness, married Inez Sprague, a granddaughter of Wil- liam Sprague. Amasa Sprague, brother of William and partner in the firm of A. & W. Sprague, married November 12, 1873, a few weeks before the execution of the trust mort- gage. Amasa Sprague died August 4, 1902; his widow, Harriet B. Sprague, instituted pro- ceedings to establish a claim for dower against over 700 persons. The suit was before the Supreme Court twice, and two decisions were rendered, in the course of which the court discussed the law of dower exhaustively .; Edward C. Stiness, nephew of Justice Stiness, was a counsel for Mrs. Sprague in the dower cases. Justice Stiness died September 6, 1913; William Sprague died in Paris, September 11, 1915.

NEGLIGENCE CASES-An essentially new type of litigation in Rhode Island appeared in 1872, when the Supreme Court rendered its first decision in a tort action based upon negli- gence. The suit sought damages for injuries to a carriage stored in a barn, and the negligence alleged was failure to provide a roof strong enough to resist the weight of snow.# Three years later the first action seeking damages for injuries incurred during employment reached the court, and the decision suggested the fellow servant rule, which became so important in later litigation alleging employment injuries.§ Two negligence cases were before the court in 1878, in one of which the court outlined the general rule that an employe accepts the ordinary risks attending his occupation.[ The other was the first negligence case against a public service corporation that reached the Supreme Court; the plaintiff sued the Providence Gas Company for injuries in his greenhouse arising from gas escaping from a leaking main .* t It may not be assumed that negligence was not recognized as a cause of action for damages earlier than 1872, that settlements were not made without recourse at law, or that actions had not been tried in courts of inferior jurisdiction. The appearance of the cases noted in the Supreme Court indicated that damages had attained figures sufficient to warrant contests in the highest court, and also that the number of such cases was increasing and that their frequency necessitated an accurate statement of the legal principles to be applied. Two of the early cases named manufacturing corporations and one a public service corporation as defendants; against such, a jury might be persuaded to return verdicts sufficient in amount to warrant appeals. Other early cases followed the general tendencies noted, the number of cases increasing rapidly with the expansion of public service corporations, and the develop- ment of larger manufactories. Included were actions for damages arising from (1) a street railway company's negligence in leaving a pile of snow after clearing tracks ;*¿ (2) a collision occasioned by careless driving on a public highway ;* § (3) the carelessness of a hospital interne ;* T (4) the death of a laborer employed in the construction of the Providence City Hall ;** (5) the escape of a horse to a public highway ;** (6) a defective cistern cover ;§* (7) a defective stairway in a public building ;§§ (8) and carelessness in starting a street car while a passenger was alighting.#§

An amendment to the statutes permitting actions by relatives for damages in instances of negligence resulting in death favored the development of the new practice, which within a

+Sprague vs. Stevens, 32 R. I. 361. Sprague vs. Stevens, 37 R. I. 1.

#Remington vs. Sheldon, 10 R. I. 218.

§Mann vs. Oriental Print Works, 11 R. I. 152.

[Kelley vs. Silver Spring Company, 12 R. I. 112.

** Butcher vs. Providence Gas Company, 12 R. I. 149.

** Lee vs. Union Railroad Company, 12 R. I. 303.

* §Baldwin vs. Barney, 12 R. I. 392.

*[Glavin vs. Rhode Island Hospital, 12 R. I. 411.

+*McCaughey vs. Tripp, 12 R. I. 449.

#*Fallon vs. O'Brien, 12 R. I. 518.

§ *Bradbury vs. Furlong, 13 R. I. 5.

§ § Wixon vs. Newport, 13 R. I. 454.

§tRathbone vs. Union Railroad Company, 13 R. I. 709.

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few years had grown to such an extent that it had become one of the most prolific and pro- ductive sources of income for lawyers. The latter might be classified in two categories, thus : Those who were counsel for plaintiffs seeking damages in actions based upon negligence, and those who had become counsel for corporations defending themselves against claims for neg- ligence. Tort cases alleging negligence lengthened the dockets of courts, necessitated an increase in the number of jurymen drawn, aroused public interest because of the damages asked for and the large verdicts sometimes returned, and burdened the appellate division of the Supreme Court with appeals and requests for new trials involving close discriminations in decisions. In the desire to state an action somehow in such manner as to assure a trial by jury, a tendency to multiplicity in pleading developed, principally to avoid the demurrer interposed by a lawyer skilled in the technique of procedure to obtain a decision in chambers.

The profession and practice of law might be considered as having reached the golden age if the stories of almost fabulous retainers, and shares of large verdicts and of settlements negotiated out of court might be true. It was commonly stated and generally believed that law had become the most remunerative of the professions. as rumors were circulated that cer- tain lawyers had received as fees in individual cases amounts that were larger than the annual earnings of some of the more prominent members of the bar in earlier days. Law had been a dignified and studious profession practiced in an environment of dusty, dingy offices and small courtrooms; it had become the highway to wealth. The new type of lawyer chose an elaborate suite of offices in a modern building, with an imposing library, a corps of clerks, and sometimes a staff of younger lawyers serving an apprenticeship with the head of the "firm." Courtrooms also were increased in size, and accommodations were provided for hosts of wit- nesses, large panels of jurymen, and the crowds of the curious who attended trials, which had become more dramatic than the theatre. Older easygoing methods of trial had been replaced by sharp practice to win advantage, and the presentation of evidence and examination of wit- nesses had undergone a revolution. Lawyers were being classified as specialists, and a new type of "trial lawyer" had appeared-a lawyer who tried jury cases for his colleagues at the bar. The "trial lawyer" or "jury trial lawyer" was practiced in the art of winning the jury, getting from his own witnesses the most of evidence favorable to his case, cross-examining the witnesses of the other party, and finally summing up the case for the jury. In the trial of cases involving large claims, several lawyers participated for the parties on each side.

Two backfires eventually tended to reduce the volume of this litigation-the practice of corporations in seeking promptly-if possible before a claimant had employed a lawyer-a settlement and a release; and with reference to employment accidents, the workmen's com- pensation law. Meanwhile the courts had developed three rules that tended to reduce dam- ages: (1) the doctrine of contributory negligence ;* (2) the fellow servant rule as applied to employes of the same corporation ;; and (3) the doctrine that an employe accepted all the ordinary risks of an occupation .¿ Other measures that tended to reduce "accident" cases were safety devices installed in factories and by public service corporations. The courts also introduced the practice of reviewing verdicts§ rendered by juries, and of granting new trials conditional upon remission of excessive verdicts.

The workmen's compensation act practically repealed the fellow servant rule, which excused employes from liability for injuries caused by the negligence of other employes on the ground that such negligence was among the ordinary risks of occupation assumed, and thus eliminated several early cases as precedents. It tended also to reduce litigation, both by establishing exact rules for damages and by setting up a simple procedure for action on claims

*Chaffee vs. Old Colony Railroad Company, 17 R. I. 600.

¡Gaffney vs. N. Y., N. H. & H. R. R., 15 R. I. 456 ; Brodeur vs. Valley Falls Co., 16 R. I. 448.

#Kelley vs. Silver Spring Co., 12 R. I. 112 ; McGrath vs. N. Y. & N. E .. R. R., 14 R. I. 357. §Dyson vs. Rhode Island Company, 25 R. I. 600.

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without the intervention of a court. The courts had established other precedents that tended to limit suits, such as the rule that intervening negligence may break the causation and become paramount,ff that negligence must be proved rather than assumed, ¿¿ and that there must be reasonable proof that a claimant for damages himself was careful in a dangerous situation.§§ One action for damages for negligence reached the Supreme Court seven times before final disposition .*; A jury had returned a verdict for the plaintiff with damages assessed as $10,000. The defendant moved for a new trial for the reason alleged that the verdict was contrary to the evidence. The motion for a new trial was argued and granted. Plaintiff obtained an.order for a reargument, and the court decided that a new trial may be granted, in the discretion of the court, even if there is evidence before the jury that will support the verdict. The order for a new trial was reaffirmed. Plaintiff then raised a constitutional question as to the right of a court to set aside a verdict in view of the constitutional safe- guards of right and property. The constitutional question was decided adversely to the plain- tiff on the ground that a court unquestionably has a right to grant a new trial if a verdict is in conflict with the evidence. At the second jury trial the plaintiff received a second verdict, and the case was carried to the Supreme Court on the refusal of the trial court to enter judg- ment on the verdict. The Supreme Court sustained the trial court. On defendant's petition for a new trial based upon the allegation that the verdict was against the evidence, the Supreme Court after argument entered judgment for the defendant. The plaintiff then raised a fresh constitutional question on the right of the court to reverse a verdict returned by a jury, and the court decided adversely, holding that in the instance of a verdict contrary to the evidence, the defendant was entitled to final judgment as a protection against continued litigation. The court denied a motion for reargument of the constitutional question.

In another action one of the parties raised a constitutional question as to the organization of the Supreme Court under the judiciary act of 1893, which divided the Supreme Court into an appellate division and a common pleas division, asserting that since 1893 the common pleas division had been an inferior court, and that the appellate division consisting of the chief justice and three justices assigned by him was a body so variable as to permit not less than 120 combinations. To this argument the court answered: "Some calculations in permutations and combinations have been made, to show of how many constituent elements the court may be composed under the present system. They are quite correct, and a like result can be shown as to the supreme court of the United States, or any other court whose quorum is less than their whole number. This, however, is a constitutional question, and such problems are not solvable by mathematics. . . . We have one supreme court with full jurisdiction upon the highest matters, and divisions for subordinate matters." The court denied a motion to dis- miss a petition for a new trial, filed by the plaintiff who sought a second trial upon the ground of erroneous rulings and inadequacy of damages .** As a rule. however, the juries of the period were generous, if not extravagant, in awarding damages, and lawyers with cases against corporations could not be persuaded to settle out of court while juries were disposed to pun- ish corporations.

Public service corporations experienced difficulty in retaining the services of good trial lawyers, in view of the possibilities of large fees to be won through successful actions against corporations. Eventually a shrewd corporation lawyer found a way out. In a case that was clear cut the plaintiff claimed a jury trial, and was ready to proceed, when the defendant sub- mitted to default and moved that the judge should assess the damages. The court denied the

ttMahogany vs. Ward, 16 R. I. 479.

##Gunn vs. Union Railroad Company, 22 R. I. 321, 579.

#§Judge vs. Narragansett Electric Company, 21 R. I. 128; 23 R. I. 208.

** Gunn vs. Union Railroad Company, 22 R. I. 325, 579 ; 23 R. I. 289 ; 24 R. I. 174; 26 R. I. 112 ; 27 R. I. 320, 432.

** Floyd vs. Quinn, 24 R. I. 147.

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motion, and empanelled a jury to assess damages, which returned a verdict for the plaintiff in the sum of $2250. Defendant excepted, and filed a petition for a new trial on the grounds (I) that the court was in error in calling the jury, and (2) that the verdict was excessive and unjust. The appellate division denied the motion for a new trial and sent the case back to the common pleas division with directions to the court to assess the damages by approving or dis- approving the award of the jury .* Substantially the court held that the "right of trial by jury .... relates only to those civil cases or causes of action in which there has been an issue made by the pleadings of the parties-where the facts alleged constituting the cause of action are denied and an issue of fact is formed which must be tried by a jury. Such a trial of an action has no application to an inquiry into damages, whether by the court or jury, after default, when the cause of action stands confessed." The decision meant that a cor- poration could default a case that involved no doubt as to liability, and have the damages assessed by the judge without a jury ; and that the finding of a jury under the circumstances was not a verdict. The decision of the court, written by Blodgett, J., recalled, in its massing of precedents and exhaustive examination of the point involved in its historical aspects with reference to even the earliest decisions in the Norman-English Year Books, the note sum- marizing the history or Rhode Island law occasionally appended by Justice Elisha R. Potter to an opinion. Aside from the consternation which the decision caused among the lawyers who were amassing riches through successful suits against wealthy corporations, the case as printed in the Rhode Island reports is most striking from a typographical point of view, as it incorporates, done in Gothic letters, ample quotations from the Year Books. The decision in the Dyson case, with that in the case of Gunn vs. Union Railroad Company, tended to diminish the effectiveness of appeals to juries in civil cases, as (I) a defendant could avoid a jury trial by defaulting ; and (2) the court assumed in the Gunn case the right to set aside verdicts held to be in conflict with evidence and to enter up judgment contrary to the finding of the jury.

CHANGES IN THE BAR-The older Rhode Island lawyer was a general practitioner, and in early days it was possible for a lawyer, as the times for holding courts were established, to attend successively every session of every court except only the ordinary justice courts of limited jurisdiction. While there was not in Rhode Island, as in states of larger area, riding of circuits, a practice resembling it was established as lawyers traveled to attend the sessions of courts. The holding of court at the county seat witnessed also a gathering of a consider- able representation of the Bar at convenient inns, and congenial meetings of Bench and Bar outside of court hours. There was no less of dignity in older than in modern courts-the habits of the time were stately. A fine fraternal spirit prevailed, which lent itself to cordial relations betwixt Bench and Bar, which never have departed completely from Rhode Island, in spite of the changes that time has wrought in procedure and practice and of the large num- ber of members of the legal profession. With the years specialization tends to replace general practice, because of the immensity of the body of the law, and a keenness of discrimination in the application of legal principles that tends to pass mastery by any individual mind. The European classifications of lawyers as advocates, attorneys, barristers, counselors, solicitors, etc., have not appealed to Americans so much as specialization in subject matter, which has produced constitutional, corporation, criminal, equity, insurance, land title, patent, probate and trust lawyers, and other types of legal experts in particular fields of jurisprudence. Not all those who study law become practicing lawyers. Burke once remarked the number of Americans who had read Blackstone, and who were, by reason of familiarity with the writ- ings of the great English jurist, thoroughly prepared to discuss the rights of men intelligently. American lawyers formulated the doctrines of the Revolution. A knowledge of law has been

*Dyson vs. Rhode Island Company, 25 R. I. 600.

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and is in America the most direct approach to public office and political preferment, to execu- tive and administrative employment in manufacturing and in business, in the conduct of pub- lic service corporations, in finance and banking. The lawyer is an indispensable factor in planning and in consummating the consolidation of major corporate enterprises which are characteristic of the twentieth century, and in obtaining the legislation necessary to authorize the new corporations. With the development in half a century of numerous departments for the administration of public business, and of officers, commissions and boards exercising quasi-judicial functions, legal practice, formerly limited generally to courts of justice, takes on new forms and enters new fields, in which a lawyer specialist may find employment quite as interesting and as profitable as that which lures his brother to distinctly judicial courts. Hearings resembling judicial trials require mastering of precedents and skill in marshalling testimony. The insurance lawyer occasionally may appear in court as an expert on a question of insurance in process of litigation ; more often he finds more remunerative practice as coun- sellor in his own office, in which his understanding of actuarial principles, of loss adjustments, of insurable interest, or reinsurance, etc., is applied. Modern practice before public utilities commissions regulating public service corporations is one result of specialization in a vast field of administration, with published reports resembling law libraries and growing constantly in volume. The utilities lawyer must be familiar with the most intricate details of the business of the service corporation which he represents, and particularly with the financial aspects of management, which are the bases for determining rates. Even the general practitioner may become an expert for purposes of a particular trial-as did the Rhode Island lawyer who, in preparation for the defence of a physician charged with murder, so completely mastered the details of anatomy and medical knowledge that became issues, as to amaze medical experts by his searching questions in examination and cross-examination of witnesses.

The older type of law firm was seldom more than an arrangement for joint occupation of office, hiring of stenographer and typist, and sharing the cost of telephone, as each of the lawyer members received and advised his own clients and retained his individual practice. Some modern combinations are scarcely more than that, although there are two distinctly dif- ferent types of modern law firms: (1) A combination of specialists operating under a firm name and offering the service of an expert in each of several particular lines; (2) a firm headed by one or more lawyers with established reputation and practice who employ other lawyers on salary to attend to the details of writing briefs, collecting and reading "authorities," filing papers, following court dockets, appearing in court with motions or in the simpler forms of practice in chambers, and sometimes for actual trials. A member of a firm of this type was overheard combining, in his discussion of the election of a new judge, expression of pleasure at the elevation of an excellent lawyer to the bench with expressions of regret that the firm would lose thereby the services of one who had been hired frequently to try jury cases for the firm.

Rarely were judges or lawyers in colonial days learned in the law; law schools were practically unknown and law libraries were rare and small. Instead of impressive collections of reports and encyclopedias and texts upon particular subjects lining the walls, the lawyer owned a small number of legal treatises and a copy of the statutes. J. K. Angell placed the date, July 1, 1847, on the preface to the first volume of Rhode Island Reports of decisions by the Supreme Court. Preparation for the bar was principally by reading law in the office of an established member of the profession. The Brown University alumni list includes the names of only half a dozen of the many graduates who became lawyers before 1825 who attended the law school at Litchfield, Connecticut, or those opened subsequently at Harvard and Yale. Attendance at law school was the exception rather than the rule so late as 1850 and 1875. In more recent years, and particularly since 1875, rules for admission to the bar,

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promulgated by the Supreme Court, have stressed preparation and have increased the qual- ifications for eligibility. Even success at law school does not ipso facto qualify; the candi- date must pass satisfactory examinations, and must have been registered in the office of a prac- ticing member of the bar, and have served an adequate apprenticeship to assure familiarity with Rhode Island law and Rhode Island procedure, as well as the theory and philosophy of law as taught in high-class law schools. Preparation is exacting, and examinations are severe, although there has never been a repetition of the three-day ordeal of examinations set in 1901.

BENCH AND BAR-The organization of the department of justice in Rhode Island in 1930 is as follows :

A. Bench and Bar.

I. The Supreme Court of Rhode Island and Providence Plantations.

a. A chief justice and four associate justices.

b. Members elected by General Assembly to hold office during good behavior.

c. Sits as a full bench.

d. Meets in Providence at Supreme Courthouse, but may meet elsewhere whenever it is deemed advisable.

e. Exercises original jurisdiction through prerogative writs and in constitutional cases.

f. Exercises final revisory and appellate jurisdiction over courts of inferior jurisdiction and over boards and commissions whose functions are judicial or quasi-judicial.

g. May render advisory opinions on request of Governor or of either house of General Assembly.

h. Regulates admission of attorneys to practice.

2. The Superior Court

a. Consists of a presiding justice and eight associate justices.

b. Members are appointed by Governor* to hold office during good behavior.

c. Is a trial court, one justice being a quorum.

d. As a county court holds sessions in every county except Bristol. Bristol County cases are tried at Providence.

e. Exercises general trial jurisdiction in law and equity and cases following procedure in equity. 3. District Courts.

a. One for each of twelve judicial districts.

b. Judges and clerks elected by General Assembly triennially.

c. Exercise original jurisdiction in civil cases in which the damages claimed do not exceed $1000, in actions for possession of tenements, in criminal cases in which fines do not exceed $1000.

d. Serve also as juvenile courts.

4. Justices of the peace.

a. In certain towns issue warrants and accept bail.

b. Two preside alternately in Providence Police Court.

5. Probate courts

a. Consists of town councils, unless Judge of Probate has been designated.

b. Jurisdiction-administration and probate of estates, appointment of guardians, adoption of children, change of name.

6. Referees, auditors and masters in chancery.

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Rhode Island : three centuries of democracy, Vol. II, Part 29

Author: Carroll, Charles, author Publication date: 1932 Publisher: New York : Lewis historical Pub. Co. Number of Pages: 716

Author: Carroll, Charles, author
Publication date: 1932
Publisher: New York : Lewis historical Pub. Co.
Number of Pages: 716