Volume 41 — Rhode Island Reports

<p>(1) Negligence. Automobiles. Carriers.</p> <p>Defendant was engaged in the business of using his automobile, either by himself or through his son as his servant, in the carriage of passengers for hire and was licensed to do so in the city of Providence, and it was customary for the son to solicit and carry passengers for hire within such city from seven to ten-thirty p. m., or later, having no fixed time after which he was not authorized to carry passengers for hire in the evening. The car had a “jitney” sign on it. The son took plaintiff into the car as a passenger about ten o’clock, p. m., on his return from a trip outside the State, which he had made on his own account, without his employer’s knowledge, and gratuitously to take some of his friends for a ride for the purpose of carrying one of them to her home outside the State, and to return with the others.</p> <p>Held, that on the evidence the jury were warranted in finding that there had not been any such precise limitation of the route over which the son was authorized to take passengers for hire as was claimed, and that plaintiff paid his fare and the son agreed to take him to his destination as a passenger in the due and regular course of business as a servant of defendant.</p> <p>Held, that on the evidence the jury were warranted in believing that the son accepted plaintiff as a passenger in the due and regular course of business as the servant of the defendant.</p> <p>Held, further, that even if taking his friends for a gratuitous ride outside the State and return was a departure from the service of his master for the time being, when the servant being then in the city of Providence took plaintiff as a passenger for hire, it was competent for the jury to find under the evidence that he had resumed his master’s service and was, so far as plaintiff was concerned, acting within the scope of his authority, and the mere fact that he was still serving a purpose of his own in carrying some of his friends toward their home was immaterial.</p> <p> (2) Carriers. Negligence. Question for Jury. </p> <p>Where there is a dispute in the evidence as to whether or not the servant was at the time of the injury acting for the master, the question is one of fact for the jury under proper instructions.</p> <p> (S) Evidence. Admissions by conduct. </p> <p>The transfer of property by a defendant in a personal injury action, to his wife nine days after an accident, was a fact from which the jury could draw an inference, based upon the defendant’s conduct, taken in connection with other evidence and circumstances in the case, unfavorable to the sincerity of the defence advanced at the trial by him, but at no time so far as the evidence showed, claimed by him immediately after the accident.</p>

<p> (1) Officer’s and Director’s Liability. Corporations. Statute of Limitations. </p> <p>Gen. Laws, 1909, cap. 214, §§ 2, 3, 12, of the liability of officers and directors of a corporation, is remedial in character and intended for the benefit of creditors, and hence the bar of the statute of limitations imposed by Chapter 357, Section 8, providing that “All suits or prosecutions founded upon any penal statute which are wholly or in part for the use of the prosecutor, shall be brought within one year, and all other suits and prosecutions on such statute within two years after the commission of the offence unless otherwise specially provided,” does not apply.</p> <p> {S) Corporations. “Charter.” Director’s Liability. </p> <p>‘The word “charter” as used in Sections 1 and 2 and impliedly in Section 3 of Chapter 214, Gen. Laws, 1909, relates to manufacturing corporations whether created under the general corporation act or by special act of the Legislature.</p> <p>(S) Corporations. Director’s Liability.</p> <p>At a first meeting of a corporation, defendant with others was elected a director “to hold office until the annual meeting to be held on the first Tuesday in April, 1899.” Preceding the election of defendant, by-laws were adopted providing that “the officers of the corporation shall be elected by the stockholders at the annual meeting and shall hold office for one year or until their successors are duly elected.” Defendant never resigned and the corporation never thereafter held an annual meeting and in 1915 went into bankruptcy. Other provisions of the by-laws invested the directors with the full control of the affairs of the corporation. During its existence the corporation transacted a large amount of business, declared large dividends and paid large salaries. While the directors never met formally, defendant with another person who had also been originally elected a director, dictated the policy of the company and directed its affairs.</p> <p>Held, that defendant was a director defacto, if not dejure, and as such director he was liable to a creditor under Gen. Laws, cap. 214, § 12.</p> <p> (4) Corporations. Meetings of Directors. </p> <p>Formal meetings of directors are not necessary where their usual course of business is to act informally.</p>

<p>{1) Exceptions.</p> <p>An exception to a charge as a whole will not lie.</p> <p> (2) Negligence. Firearms. </p> <p>Jn a personal injury action arising out of a gun shot wound caused by minor son of defendant, the facts tended to show that the son knew of his father’s ownership and use of the gun; that the son was never instructed or warned by his father as to the danger of using the gun and was never forbidden to use it; that the father never took any precautions until as he claimed at a certain time he broke the stock of the gun and threw the metal portion and the broken stock under his bed, for the reason as he stated, he was afraid some children would get hold of it and scare someone, and that the father left a cartridge in the gun.</p> <p>Held, that whether the father was negligent and whether his negligence caused the injury to plaintiff was properly left to the jury and upon the above facts the jury could properly find for the plaintiff on both points.</p>

<p>(1) Decision of Justice on Undisputed Facts. Review.</p> <p>Where the decision of a justice of the Superior Court sitting without a jury, as to a finding of fact, is based upon the inference which in his opinion should be drawn from undisputed evidence, upon appeal the question as to the purport of such undisputed evidence comes up for review unaffected by the conclusion which the justice may have reached thereon.</p> <p> (2) Joint Interest in Personalty. Intent. </p> <p>A joint ownership of a deposit is created when it appears to have been the intention of the original owner to divest himself of the exclusive ownership and control of the money and vest such ownership and control jointly in himself and another with the attendant right of survivorship.</p> <p>‘The intention to make a present gift of a joint interest in such deposit may appear in the statement of the depositor or it may be shown by his acts and the attendant circumstances.</p> <p>-(S) Joint Interest in Personalty.</p> <p>.A deposit was made “payable to the order of A. or B. or the survivor”. Evidence considered" and held that a joint interest was created and on the death of A., B. became entitled to the fund.</p> <p>Prov. Inst. for Savings v. Carpenter, 18 R. I. 287, distinguished.</p>

<p>(1) Insurance. Change of Beneficiary.</p> <p>In a case where the insured had freedom of choice of beneficiary, where the policy of life insurance provided, “Every change (of beneficiary) must be made by written notice to the company at its home office accompanied by the policy, and will take effect only when endorsed on this policy by the company,” and insured had executed a nomination paper for change of beneficiary which paper was in the possession of the local agent of insurer for the purpose of being returned to the home office for endorsement upon the policy, but insured died prior to the receipt of the paper by the home office, he had done all that was required of him to make the change effective.</p> <p>(8) Insurance. Change of Beneficiary. Ministerial Acts.</p> <p>An insured may change a beneficiary under an insurance policy (having reserved the right to do so) by doing all that is required of him to effect the change or all that is possible for him to do although certain formal or ministerial acts of the officers of the insurer are not performed before the death of the insured. The question in a particular case will be ordinarily as to whether the acts required but unperformed were essential parts of the contract or were ministerial and formal details. r (</p>

<p>Case stated for an Opinion.</p>

<p>(1) Elections. Resignation of Member of General Assembly.</p> <p>A member of the General Assembly has the legal right to resign his office and create a prospective vacancy if he adopts the proper method of procedure looking to that end.</p> <p>(2) Elections. Resignation of Member of General Assembly.</p> <p>The resignation of a member of the General Assembly creating a prospective vacancy in the representation of a city or town while the General Assembly is in session, should be given to the clerk of such city or town, as he alone is authorized to -order a new election to fill such prospective vacancy.</p> <p> {S) Elections. Resignation of Member of the General Assembly. </p> <p>The resignation of a member of the House of Representatives, while the General Assembly is in session, tendered to and accepted by said House of Representatives is a nullity.</p> <p> (4) Elections. Resignation of Member of General Assembly. </p> <p>As no particular form of resignation of a member of the General Assembly is prescribed by statute, the filing by a member of notice of his resignation with the city clerk of the city which the member represented, is proper, such officer being the one authorized to call an election to fill the prospective vacancy.</p> <p> (5) Elections. Resignation of Member of General Assembly. </p> <p>Under Art. XVI of amendments to the constitution, a member of the General Assembly continues to hold his office until the election and qualification of his successor and cannot create a vacancy by an attempted resignation of his office.</p> <p> (6) Elections. Resignation of Member of General Assembly. Sheriffs. </p> <p>'The election by the General Assembly to the office of sheriff of one who had tendered his resignation as a member of the House of Representatives to such House, which had accepted it and declared the seat vacant, is invalid and void, since the incumbency of the member resigning continued up to the time of the qualification of his successor and under the provisions of Gen. Laws, 1909, cap. 282, § 1, a member of the General Assembly is not eligible to the office of sheriff.</p>

<p>(1) Mechanics Lien. Service of Notice of Lien.</p> <p>Under Gen. Laws, 1909, cap. 257, § 5, service of the notice of lien may be made by leaving the notice with some person living at the last and usual place of abode of the respondent within the State.</p>

<p> (1) Pleading. Joinder of Defendants. Joinder of Counts. </p> <p>In an action against defendants as joint tort-feasors, correct pleading permits a plaintiff to join in the declaration only such counts as allege common causes of action against the defendants, and counts setting forth distinct causes of action against the several defendants cannot be joined.</p> <p> (£) Pleading. Joinder of Defendants. </p> <p>Gen. Laws, 1909, cap. 283, § 20, of the joinder of defendants when a plaintiff is in doubt as to the person from whom he is entitled to recover, permits a plaintiff to proceed against two or more defendants jointly, but the declaration in such joint action must conform to the rules of correct pleading against joint defendants and can only set forth in each of its several counts a joint cause of action against all the defendants.</p> <p>(S) Pleading. Joinder of Defendants.</p> <p>It is not the intent of Gen. Laws, cap. 283, § 20, of joinder of defendants in case of doubt as to the person from whom a plaintiff is entitled to recover, that in a joint action against two or more defendants a plaintiff may join distinct several causes of action against the different defendants.</p> <p>(4) Pleading. Joint Tort-Feasors.</p> <p>A declaration setting out a distinct wrongful act of each of two defendants, which acts occurring at the same time and place brought about a collision causing the injury, does not allege a joint tort of the two defendants, but by reason of the two distinct, though related torts, defendants are collaterally liable.</p> <p> (5) Pleading. Joinder of Defendants. </p> <p>Gen. Laws, 1909, cap 283, § 20, is for the relief of a plaintiff who is in doubt as to which one of a number of persons is guilty of a certain act which has caused an injury and is not intended for the relief of one who is in doubt as to which of a number of acts,, each committed by different persons and each alleged to be unlawful has caused the injury.</p>

<p>(1) New Trial. Joint Tort-Feasors.</p> <p>In an action against joint tort-feasors, after verdict against both defendants, independent motions by defendants for a new trial were properly filed. Bassett v. Loewenstein & Hahn, 22 R. I. 468, and Curry & Richards v. Stokes, 12 R. I. 52, distinguished.</p>

<p> (1) Resulting Trusts. </p> <p>Evidence considered and held to establish a resulting trust.</p> <p> (2) Resulting Trusts. </p> <p>A resulting trust which arises by operation of law, may be proven by parol testimony.</p> <p>(S) Laches.</p> <p>‘The question of laches must be decided upon the circumstances of each particular case.</p> <p>•Complainant, an illiterate man, unfamiliar with business and with implicit confidence in his wife, whose rights in realty remained undisputed for many years until her last illness which covered a period of twenty months, cannot be deemed guilty of laches in failing to assert such rights under the unsuitable conditions which then prevailed.</p>

<p>(1) Elections. Military Service of the United States.</p> <p>The right of an elector to vote in the election of all civil officers and on all questions “in all legal town or ward meetings,” under Article II, Section 1 of the Constitution, or “in all legally organized town or ward meetings,” under Article VII of Amendments, cannot be exercised by an elector otherwise than in person in said town or ward meetings, except as provided by Article IV of Amendments.</p> <p> (%) Elections. Military Service of the United States. </p> <p>The General Assembly cannot provide by law for the exercise of the right to vote other-where than “in legally organized town or ward meetings,” except as provided by Article IV of Amendments.</p> <p> (S) Elections. Military Service of the United States. </p> <p>The words “military service of the United States,” as used in Article IV of Amendments of the Constitution, include the naval service of the United States, and the language of the Article is sufficiently broad to empower the General Assembly to provide for the voting by all electors otherwise qualified in time of war “absent from the state in the actual military service of the United States,” whether such service be in the army or navy, if the General Assembly shall see fit. .</p> <p> (4) Elections. “Representatives in Congress.” </p> <p>The words “representatives in congress,” in -Article IV of Amendments do not include senators in Congress.</p> <p> (5) Elections. “Senators in Congress.” </p> <p>Pub. Laws, cap. 1034, § 8, approved April 21, 1914, amending Gen. Laws, 1909, cap. 11, § 58, so as to include in the provisions for voting by electors absent from the State in the actual military service, etc., voting for “senators in congress,” was unwarranted under Cons. R. I. Art. IV of Amendments.</p> <p> (6) Elections. “General Officers of State.’’ </p> <p>The words “general officers of the state” in Article IV of Amendments do not include members of the General Assembly and officers of cities and towns.</p>

<p>(1) Workmen’s Compensation Act. Agreements. Limitation of Action. Amendment. Adding New Parties. Petitions.</p> <p>After death of employee, an agreement in writing for’ compensation under the Workmen’s Compensation Act was made between employer and a sister of employee which was filed in court and approved by a justice, by the terms of which it was agreed that deceased left no one wholly dependent upon his earnings and that the sister was partly dependent thereon; the amount of the annual earnings was set out and the amount contributed by deceased to those partially dependent was stipulated, and the amount to be paid to the sister as partial dependent was provided. By the agreement the dependency, if any, of the father of deceased was to “be ascertained and agreed upon or fixed by the court upon petition,” and it was further agreed that the agreement should not in any way prejudice the individual rights of the father.</p> <p>More than two years after the death of the employee, the father filed a petition for compensation.</p> <p>Held, that the agreement was the individual agreement of the parties thereto and there was nothing to show an intention to make any other person a party thereto, and the question of the dependency of the father was to be determined either by another agreement or by the court in proceedings by petition under Article III, Sections 1 and 2 of the act.</p> <p>Held, further, that the petition of the father was an independent proceeding and as such was barred by the provisions of Article III, Section 18 of the act as it was not filed within two years of the death of the employee.</p> <p>Held, further, that the petition could not be treated as an amendment of the written agreement as the result would be to substitute a new agreement not made by the parties but by the court and the statute authorized no such procedure.</p> <p>Held, further, that while the act permitted amendments to be made to petitions, thus perhaps permitting the addition of a new beneficiary, where the period of limitation had not expired, no such power was given in regard to agreements.</p>

<p>(1) Elections. Illegal Votes. Ineligible Candidates.</p> <p>Under the provisions of Cons. R. I., Art. XI, § 7 of Amendments, “In elections by the general assembly in grand committee the person, receiving a majority of the votes shall be elected,” where a majority of the votes were cast for a candidate for office, whom the court subsequently declared to be ineligible for such office, the minority candidate cannot be declared to have been elected, on the ground that the majority of the votes were cast in “wilful defiance of law,” where it appears that while the members voting for the ineligible candidate did so vote in disregard of the construction given to the law by the supporters of the minority candidate, which was also the construction placed upon it by the court, they disagreed with such construction and were desirous of casting effective votes, and therefore their votes while inefficient were not illegal and cannot be considered as nullities in a consideration of the total number of votes cast.</p>

<p> (1) Contract Based on Immoral Consideration. Question for Jury. </p> <p>In an action for the purchase price of articles alleged by defendant to have been immoral objects, where the articles introduced in evidence bear unmistakable proof of their obscene and indecent character, the court is justified in refusing to submit the question as to their indecency to the jury as one of fact.</p> <p> (2) Contracts. Immoral Articles. </p> <p>A contract for the sale of goods which are obscene, indecent or manifestly tend to the corruption of the morals of youth, is unenforcible as a violation of Gen. Laws, 1909, cap. 347, § 13.</p>

<p>Proceedings for appointment of receiver. Heard on motion to dismiss appeal of a stockholder from a decree .authorizing the conversion of the property into cash.</p>

<p>Exceptions will not lie to the decision of the Superior Court on a petition for a writ of mandamus, but the case should be brought up for review by appeal under Gen. Laws, 1909, cap. 289, § 25.</p>

<p> (1) Charitable Trusts. “Monument.” </p> <p>Testator bequeathed a fund in trust “to use and expend said trust fund and its accumulations, if any, in the erection of and to erect upon some suitable site in “Roger Williams Park,” so-called, designated by the city council of said city, a monument dedicated to and illustrative of Music, which said monument shall be designed and executed in such manner as at once to instruct and adorn.”</p> <p>Held, that the word “monument” was not.used in the restricted sense of a stone column or pillar, but with a broader and more comprehensive meaning, and by the use of the word “adorn,” and the sum appropriated, testator intended to materially beautify the principal park of the city, set apart and resorted to by its people as a place of rest and relaxation, benefitting the general public by conveying to their hearts and minds an educational influence.</p> <p> {8) Public Charity. </p> <p>Held, further, that the bequest created a public charity, for while it did not fall within the enumeration of the purposes constituting charitable uses set out in the statute relating to charitable donations, that enumeration was not exhaustive, but where a purpose by analogy is deemed to be within its spirit and intendment it is held to be “charitable” within the meaning of the statute.</p> <p> (8) Charitable Trusts. Uncertainty. </p> <p>Held, further, that the trust was not void for uncertainty.</p>

<p>(1) Negligence. Independent Contractor.</p> <p>Where a corporation hired a truckman to transport a boiler from one place to another, the contract making no provision as to the route over which it was to be carried or the means or method by which the transportation was to be effected, and the corporation giving no instructions as to the method to be employed and as a matter of fact having no knowledge that it was in transit prior to the accident, the truckman was an independent contractor.</p> <p> (2) Joint Defendant. New Trial. </p> <p>In an action for negligence, where certain counts charged a joint liability of two parties defendant, other counts charged one defendant as the agent of the other, and others charged one defendant as an independent contractor who acted with the knowledge and consent of the other, after a verdict against both parties, where the court find that one defendant was an independent contractor and order judgment in favor of the other defendant, justice requires that the defendant found to be an independent contractor should have an opportunity at a new trial to present his case free from the questions which have been eliminated.</p>

<p>(1) Wharfage.</p> <p>The use of a wharf for berthing purposes will support a claim for wharfage-, under an implied contract.</p> <p> (1) Wharfage. </p> <p>The use of a wharf by overlapping will support a claim for wharfage, although defendant was not the owner of the vessels which discharged at his wharf the cargoes purchased by him, where defendant ordered such vessels brought to its wharf for the purpose of discharging their cargoes, and was aware that every vessel brought to its wharf by its order would overlap a neighboring wharf, and had been notified that it would be held responsible for such use of plaintiff’s wharf.</p> <p> (3) Wharfage. Actions. </p> <p>Under the saving clause of the Judiciary Act of 1789 an action in personam can properly be brought in a State Court for wharfage under an implied contract.</p> <p> (4) Wharfage. Evidence. </p> <p>In an action for wharfage where plaintiff had testified that he was familiar with the value of wharf properties on both sides of a river and kept himself posted as to rentals of the same, evidence by him as to fair rental value of the privilege of overlapping enjoyed by defendant while discharging vessels at its dock was properly admitted.</p> <p> (5) Wharfage. Evidence. </p> <p>In an action for wharfage, a real estate broker was properly permitted to explain in what way there had been an increase in the value of water front properties as stated by witness in answer to a previous question.</p> <p> (6) Wharfage. Evidence. </p> <p>In an action for wharfage, evidence tending to show that defendant had long enjoyed by permission the privilege of overlapping; that it had for a long time paid plaintiff monthly a certain sum therefor; that during the period sued for it had continued to make use of plaintiff’s wharf in the same manner as formerly; that the wharf was in the same condition as when defendant was formerly using it and that plaintiff had leased the wharf for $400 more a year than had been paid under a former lease which contained a privilege of use by defendant, was admissible as to the value of the use of the property by defendant.</p> <p>(7) Wharfage. Damages.</p> <p>In an action for wharfage, where defendant offered no evidence on the question of damages, while there was evidence on the part of plaintiff upon which the jury could properly award as large a sum as given, a verdict approved by the trial judge, will not be disturbed.</p>

<p>(1) Exceptions. Deposit of Fees for Transcript.</p> <p>Gen. Laws, 1909, cap. 298, § 17, providing that a party desiring to prosecute a bill of exceptions, “shall deposit with the clerk the estimated fees for transcribing such testimony as may be required,” is not complied with by giving in the evening of the last day in which such deposit can be made, a check payable to the clerk as such and accepted by him, which on presentation is dishonored. The form in which such deposit may be made is not decided otherwise than that a deposit in the form of currency or money which the law recognizes as legal tender would undoubtedly satisfy the statute.</p>

<p> (1) Divorce. Evidence. </p> <p>Evidence in .a petition for divorce as to acts of personal violence on the part of respondent’s father which were committed in the presence of respondent and. apparently with his acquiescence and approval, was properly admitted.</p> <p>(3) Divorce. Evidence.</p> <p>Evidence in a petition for divorce of the family physician that he attributed the impaired health of petitioner to her home life which, she had described to him, admitted as a part of the history of the case, was proper.</p> <p>(3) Divorce. Exceptions.</p> <p>In considering the decision of the trial court in a petition for divorce, the appellate court will not undertake to pass upon questions of fact which are peculiarly within the province of that court and reverse its decision unless such decision is clearly wrong.</p> <p> (4) Divorce. Condonation. </p> <p>Condonation to be effective must be voluntary and intentional. Such intention may be expressed in words or may be implied from the acts of the injured party, and while there might be a presumption of sexual cohabitation and therefore of condonation from the fact that the petitioner occupied the same bed with her husband for a brief period after the final act of cruelty, such presumption may be rebutted.</p> <p> {5) Divorce. Condonation. </p> <p>Where it appeared that after swearing to a petition for divorce and for custody of her children, petitioner returned to her home and attended to her household duties and slept in the same bed with her husband, but without any act of sexual intercourse between them, intending to go to her mother’s home as soon as service of the papers should secure to her the custody of her children, the fear of being deprived of her children was a sufficient excuse for the acts of petitioner, whch not being intended as an expression of forgiveness would not amount to condonation.</p>

<p>(1) Wills. Income. Life Tenant. Remainderman.</p> <p>Testator bequeathed the residue of his estate in trust, to pay the income dividends and profits to his wife for life, and to hold the remainder in perpetuity for the benefit of a public charity to be created, instructing the trustee to pay over to the Board of Trustees of the charity “such reasonable sum from the income of the said remainder as due regard for the future maintenance of said Home and prudent management may dictate, for the purpose of establishing the Home,” and thereafter to collect and receive “the rents interest dividends and income” and “pay over the net income” to the Board of Trustees for the purposes mentioned in the will.</p> <p>The trust estate contained .certain shares in a land company and three land trusts. In the case of the land company, the entire capital stock was represented by the land held by it; this land the company held for years waiting until in the course of time it increased in value, then platting and selling it.</p> <p>Held, that in this the company was using only its capital which was solely land, in paying the expenses, and was converting its capital into money and then distributing the capital so converted among the shareholders.</p> <p>Held, further, that all dividends upon the stock of the company and dividends paid under the land trusts were in liquidation of the par value of the stock and of the capital of the trusts and were wholly paid out of the net proceeds of the conversion of the capital of the company and the trusts into money by the sale of land.</p> <p>Held, further, that the life beneficiary was not entitled to any apportionment on the theory that the securities being such as would not be suitable for trustees to hold, might be treated as if converted into cash at the date of testator’s death and a capital sum established upon which interest could be allowed to the fife beneficiary in lieu of income which she had not received, since the trustee was expressly authorized to continue the investment even if hazardous and doubtful.”</p> <p> (0) Wills. “Income.” </p> <p>Whatever rule is adopted as to the distribution of dividends between life tenant and remainderman, the words dividends, profits, earnings and all similar words and phrases are not sufficient in the absence of more explicit directions to indicate any intent that is not equally well expressed by the word “Income.”</p> <p>(3) Wills. “Income.”</p> <p>The use in a will of the words “income dividends and profits” or any of the other language or provisions of the will did not indicate an intention on the part of the testator that the life beneficiary should receive as part of her income payments which were not dividends of profits, but payments of sums of money realized from sales of capital in the course of a gradual liquidation or conversion of the capital of a land company and of certain land trusts into money for the benefit of all parties interested.</p> <p>(4) Wills. “Income.” Evidence. Ambiguity.</p> <p>On a bill in equity for construction of a will testimony of the widow who was fife beneficiary as to the actual intention expressed to her by the testator that she should have as a part of her income under the trust all of the moneys that might be distributed by a land company and certain land trusts was inadmissible, there.being no such latent ambiguity as to the subject of the gift as to warrant the admission of parol testimony as to the actual intention of testator.</p> <p> (5) Wills. Income. Evidence. </p> <p>Under a will bequeathing “income dividends and profits” to a life beneficiary, on the question as to whether a “dividend” should properly go to the life beneficiary or to the remainderman, the only testimony proper to be received outside of the terms of the will is such as will show what has been the action of the corporation in declaring a dividend or making a distribution to shareholders and from what source the dividend or distribution has been derived and the court will then say as a matter of law whether the dividend has been such that it is to be deemed income or principal.</p> <p> (6) Wills. Income. Life Tenant. Remainderman. </p> <p>The distribution of sums of money arising from a conversion of capital into money in either partial or gradual or complete liquidation of capital value belongs to the corpus of the trust fund as capital for the benefit of the remainderman, and the life beneficiary has only the right to such income" as shall arise upon the reinvestment of the fund so received.</p>

<p>(1) Elections. U. S. Senators. Advisory Opinions.</p> <p>AH opinions given by the Supreme Court' under the provisions of Section 2 of Article XII of amendments to the constitution of the State are merely advisory in their nature.</p> <p> (8) Elections. U. S. Senators. </p> <p>As by the constitution of the United States, Article I, Section 5, the United States Senate is made the sole judge of the elections, returns and quaHfications of its members, the authoritative determination of the question whether a legislature acting under the provisions of the constitution of the United States or the constitution of a State could enact a law which would permit electors qualified to vote for Senators of the United States to vote in some manner provided by such law, when they are absent from the State in the actual military or naval service of the United States, is not within the jurisdiction of the court of last resort of a State.</p>

<p>(1) Master and Servant. Safe Place Buie.</p> <p>The common law duty to furnish the servant with a reasonably safe place in which to do his work, is subject to the exception that when the place and the conditions with regard to safety are constantly changing as work progresses and the workman makes the place in which to do his work as one of the incidents of his employment, the rule as to the master’s liability does not apply, and in such circumstances the master is not required to follow up the work in all its stages and see that precautions are constantly taken for the protection of the servant, but it is the master’s duty to furnish the servant with suitable material which he may use for his own protection and to use reasonable care in the selection of the servant’s fellow workmen and if one is required to use reasonable care in the appointment of a foreman. It will be regarded as part of the servant’s contract of employment that he accepts such method and the possibility that the servant may be injured through the carelessness of his foreman or of a fellow servant in the means used to make the place of such employment safe is one of the risks which the servant assumes.</p> <p> ($) Master and Servant. Safe Place Buie. </p> <p>A construction gang had completed its work of excavating and sheathing a trench, and two days later plaintiff was sent into the trench to lay sewer pipes. There was evidence warranting the jury in finding that the construction gang had been negligent in sheathing the trench; that a considerable time had elapsed after that negligence before plaintiff wa's sent to work there and that during that period the master had been in full control with ample opportunity to discover and remedy any defect.</p> <p>Held, that in such circumstances the master should be held to have adopted the trench as constructed and to have furnished it to the servant as a completed structure in which to carry on his work, and in doing so it was the duty of the master to use reasonable care to see that the trench was in suitable condition for such use.</p> <p>Vincent, J., dissenting.</p>

<p>(1) Guardian and Ward. Probate Courts. Accounts.</p> <p>While the policy of the law as well as reason and convenience require that the ordinary accounts between guardian and ward should be adjusted in the probate court and that the ward cannot maintain an action against his guardian while the guardian’s account remains unsettled, this rule is confined to such questions as arise between the guardian and ward from that relationship and in regard to property rights pertaining to the guardianship.</p> <p> (2) Guardian and Ward. Value of Services Rendered by Ward to Guardian. </p> <p>Where a ward was in the employ of his guardian at the time of the creation of the guardianship and continued to work for the guardian until the termination of the guardianship, as the appointment as guardian conferred no right to the services of the ward the law implies a promise on the part of the guardian to pay what the services are reasonably worth.</p> <p> ($) Guardian and Ward. Action by Ward Against Guardian, for Services. </p> <p>The claim of a ward for his services rendered to his guardian is treated as a set-off in whole or in part of the claim of the guardian for board and where it does not exceed in amount the claim for board it is a proper matter for adjustment in the settlement of the guardian’s account in the probate court, but the probate court cannot find a balance in favor of the ward, and where the claim for services made by the ward exceeds the claim of the guardian for board the ward may bring his action to recover the value of such services and is not required to wait for the settlement of the guardian’s account in the probate court.</p> <p> (4) Probate Courts. Fraud. </p> <p>A probate court is not the proper tribunal for the trial of an issue involving the question of fraud in the procuring of a release.</p>

<p> (1) Common Carriers. Contributory Negligence. </p> <p>Declaration set out that as plaintiff was about to cross defendant’s tracks near a curve, an electric car which had been at a standstill suddenly started, and was about to proceed around the curve, moving toward the point on said curve at which point plaintiff was intending to cross the tracks; that the motorman signaled plaintiff that she would not have time to cross without being struck; that thereupon plaintiff stepped back in an effort to avoid being struck, but that defendant so negligently managed the car that before plaintiff could get clear of the swing of the rear end she was struck and injured. On demurrer:—</p> <p>Held, following Garvey v. B. I. Co., 26 R,. I. 80, that no cause of action was stated.</p>

<p> (1) Joint Tort-Feasors. Bes Adjudicata. </p> <p>Plaintiff suffering injury through a defect in a highway, which it was the duty of both, a municipal corporation, and a common carrier to keep in repair, brought action against the city, and after obtaining a final judgment which was collectible but had not been paid because plaintiff was unwilling to receive the amount awarded, brought action against the carrier. In the first action the carrier being notified, appeared and openly conducted the defence.</p> <p>Held, that the matter was res adjudicata.</p> <p>Bennett v. Fifield, 13 R. I. 139, distinguished.</p>

<p>(1) Bills of Exceptions. Extension of Time for Filing Transcript.</p> <p>Where the time for filing a transcript is extended a party has ten days thereafter in which to file his bill of exceptions, notwithstanding the fact that the original order requiring the filing of the bill on or before a day certain had not been altered by the court.</p> <p>(#) Bills of Exceptions. Time.</p> <p>Where an order for the extension of time for filing a transcript was made by a justice before the expiration of the period first fixed, the fact that the order sent by mail did not reach the clerk for filing until the day following the expiration of the period, will not prejudice the rights of the party.</p>

<p> (1) Contracts. Novation. </p> <p>Plaintiff was a sub-contractor under the defendant, the contract providing for payment of “80% of all completed work every thirty days, balance thirty days.” Defendant became financially involved. Thereafter an agreement was executed between defendant and every sub-contractor, setting out that ‘ we the subscribers hereby agree to the following plan for carrying said work to completion and/or the payment of our accounts,” providing for the receipt and disbursement by an agent of all payments thereafter made under the contract between defendant and the owner, the sub-contractors agreeing to make no claim for payment upon labor and materials furnished prior to the agreement until defendant’s contract with the owner was entirely completed; for work and materials furnished under the original contract with defendant, the sub-contractors upon receipt by the agent of the payments in the future made by the owner under the contract with defendant were to be paid 80% of the sums set forth in the certificates of the architect and when the defendant’s contract with the owner was entirely completed, then the agent from the amount received as a final payment from the owner was to pay the sub-contractors ratably in proportion to their then unsatisfied claims under their contracts with defendant. As to any additional labor or materials furnished necessary for the completion of the work, outside of the original contracts, payment was to be made in full by the agent. Upon completion of the contract and payment by the agent of all funds in his hands, plaintiff brought suit to recover the difference between the amount received and that named in the original contract with defendant. Defendant pleaded the agreement in accord and satisfaction.</p> <p>Held, that the facts did not disclose a case of novation as it was not the intention of the parties to extinguish the original contract, but to modify it as to the terms of payment.</p> <p>Held, further, that- considering the circumstances attending the execution of the agreement, it was the intention of the parties that the pro rata payments were to be accepted in satisfaction of the claims of the sub-contractors under their existing contracts with defendant.</p> <p> (2) Payment. </p> <p>The word “payment” is used in two senses: 1. Performance of a contract to pay money according to its stipulations; 2. Extinguishment of a cause of action arising from a breach of contract.</p>

<p>(?) Indictments. Dying Declarations. Res Gestae.</p> <p>Evidence of dying declarations should be restricted to the act and the circumstances immediately attending it and forming a part of the res gestes, and they are not admissible to prove former or extrinsic transactions.</p> <p>In an indictment charging defendant with counseling and aiding an abortion, submission to the jury of a dying declaration containing the statement that defendant was the man responsible for the condition of deceased, was error, since such statement did not refer to matters constituting a part of the res gestes.</p> <p> (8) Indictments. Dying Declarations. </p> <p>Two cases, one charging defendant with counseling and aiding an abortion and the other charging defendant with carnal knowledge of a girl under the age of consent, were tried together at request of defendant. A dying declaration in part inadmissible in the first case and wholly inadmissible in the second case was admitted, the court charging the jury that they must not consider the declaration in connection with-the indictment charging carnal knowledge. A portion of the declaration referred to the offence charged in the second indictment.</p> <p>Held, that the influence which a knowledge of the matters contained in the declaration would be likely to produce upon the minds of the jury, entitled the defendant to a new trial in the indictment charging carnal knowledge.</p>

<p>(1) Divorce. Jurisdiction.</p> <p>A non-resident cannot petition for a divorce a mensa et thoro, whether such petition be an original one, a cross-petition or a motion given the effect of a cross-petition by statute.</p>

<p>Probate Appeals.</p>

<p>(1) Water Mills. Jury Trial.</p> <p>In an action of the case under Chapter 148, General Laws, 1909, “Of Water Mills,” as amended by Chapter 697, Public Laws, 1911, to recover damages for the overflowing of plaintiff’s land by reason of the erection of a water mill or dam upon defendant’s land, in which defendant pleaded the general issue, the parties are entitled to a trial by jury upon the question of the plaintiff’s right to recover damages at all, prior to the jury trial for the assessment of damages, for the Act provides for two trials by jury, the first to determine the question of liability, and the second to determine the amount of damages with the right in each case for the parties by agreement to waive jury trial.</p> <p> (2) Water Mills. </p> <p>Proceedings under Gen. Laws, 1909, cap. 148, “Of Water Mills,” are legal, not equitable.</p>

<p>(1) Municipal Corporations. Abatement and Revival.</p> <p>In an action against a town through its treasurer, a written agreement of counsel filed in the case to the effect that “judgment may be entered for the plaintiff on or after September 15, 1914, for amount of notes declared on and interest thereon to be computed by counsel before said 15th day of September, 1914,” is not equivalent to entry of judgment and where no further action was taken until more than one year after the defendant had been succeeded in the office of town treasurer, the action abated.</p>

<p> (1) Constitutional Law. Acts of General Assembly. </p> <p>The court will make every intendment in favor of the constitutionality of an act of the General Assembly.</p> <p> (8) Constitutional Law. Taxation. </p> <p>The court will not receive evidence for the purpose of reviewing the judgment of the legislative branch of the government, but an act of the General Assembly must stand unless its repugnancy to the constitution appears upon its face or upon a consideration of facts of which the court can take judicial notice.</p> <p> (3) Taxation. Classification. </p> <p>The General Assembly may classify property and occupations for the purpose of taxation and within reasonable limits may impose different burdens upon the different classes, according like treatment to each individual of the same class. In the exercise of this power it has a wide range of discretion.</p> <p> (4) Constitutional Law. Taxation. </p> <p>Pub. Laws, R. I. cap. 784, approved March 28, 1912, in subjecting mutual insurance companies to taxation on their intangible personal property and exempting stock insurance companies which pay a tax upon premiums and assessments under. Section 35 of the Tax Act of 1912 from taxation on similar property is not obnoxious to Cons. R. I. Art. I, § 2, nor to Cons. U. S. Art. XIV of Amendments.</p>

<p>C1) State Board of Health. Appeal.</p> <p>On appeal from finding of State Board of Health evidence considered and held that appellant had been guilty of gross unprofessional conduct and of conduct making him an unfit person to practice medicine in the State and finding of Board revoking certificate of appellant affirmed.</p>

<p>(1) Workmen’s Compensation Act. Total Disability. Loss of Sight.</p> <p>Where a workman who had already lost the sight of one eye, became an employee, entitled to the benefits of the Workmen’s Compensation Act, and subsequently suffered' an injury whereby he lost the sight of the other eye, a condition of total incapacity resulted by reason of the injurjq under provisions' of Art. II, Section 10, of the Act, and under said section the total and irremediable loss of sight and not what brought it about is the fact which furnishes the conclusive presumption of permanent total disability.</p> <p>($) Workmen’s Compensation Act. Loss of Sight. Total Disability.</p> <p>Workmen’s Compensation Act, Art. II, Section 10, provides that in case of the total and irrevocable loss of sight in both eyes it shall be conclusively presumed that the injury resulted in permanent total disability.</p> <p>Held, that, whether the injured employee had one or two eyes at the time of the accident was not important if in fact he had irrevocably lost all the power of vision he then possessed.</p> <p>(S) Workmen’s Compensation Act. Loss of Sight.</p> <p>Workmen’s Compensation Act, Art. II, Section 12, provides that in case of certain injuries, certain amounts shall be paid in addition to other compensation, (a) for loss of sight of both eyes, for a period of one hundred Weeks; (b) for loss of sight of either eye for a period of fifty weeks:—</p> <p>Held, that the section provided compensation for specified injuries and where an employee at the time of his employment had already lost the sight of one eye, and during the course of his employment lost the sight of the other eye, the injury resulted in the loss of the sight of one eye entitling him to compensation for the period of fifty weeks.</p>

<p> (1) Assumpsit. Contracts. Extras. Pleading. </p> <p>Where in a declaration the plaintiff set out a written contract between the defendant and-himself by which he agreed to build a house for a certain sum, and alleged that afterwards the contract was modified in certain respects and plaintiff performed extra work and furnished extra materials, and that while no specific price was agreed upon for the changes, the reasonable cost and extra necessary expense thereof would be the sum sued for, making a total sum due plaintiff of the original contract price and the amount sued for as extras, and admitted the payment of the original price, leaving the balance due for extras, evidence tending to show a breach of the original contract was properly admitted, by way of recoupment, for the inclusion in the declaration of the sum sued for in the total sum due under the contract was essentially correct as the modifications were trifling, but if the claim for extras be regarded as a new contract, the defendant could still recoup as the two claims grew out of the same transaction.</p>

<p>(1) Conflict of laws. Military Exigency. Speed Laws.</p> <p>A dispatch driver in the naval service of the United States, while acting under the specific instruction of his superior officer to proceed in a motor vehicle with all possible dispatch along one of the highways of the State, which instruction the dispatch driver was obliged to obey and which was assumed by his superior officer to necessitate the violation of the speed laws of the State, and which was given in a matter deemed to be¡,of urgency and appertaining to the conduct of the war between the United States and a foreign nation, is not amenable to the statutes of the State regulating the speed of motor vehicles on public highways.</p> <p>(0) Conflict of Laws; Military Exigency; Speed Laws.</p> <p>The rules established by the legislature regulating the use of the highways of the State are subordinate to the exigencies of military operations by the Federal Government in time of war.</p>

<p> (1) Trusts inter vivos. Revocation. </p> <p>On bill in equity to enforce trusts, evidence considered and held that valid trusts were created and that they were never revoked.</p>

<p>(1) Negligence. Break of Causal Connection. Fireworks.</p> <p>As the result of the negligence of defendant, a bomb which had been discharged in a display of fireworks, fell unexploded some six hundred feet from the place of discharge, where a boy five years of age picked it up, and brought it to the plaintiff who was about six and a half years old and another boy about seven years old. The boys knew just enough about it to suppose that the fuse was intended to be lighted, but were totally ignorant of the effect which would be produced. After playing with it for some time the seven year old boy lighted the fuse and it exploded seriously injuring plaintiff. Held that the act of the boy in lighting the fuse was not as a matter of law such intervention of a responsible third party as to break the causal connection between the negligence of defendant and the damage to plaintiff, and the question of defendant’s liability was properly left to the jury.</p>

<p>(1) Jitney Busses. Bonds.</p> <p>Pub. Laws, R. I. cap. 1263, “ An act relative to carriers of passengers by motor vehicles and authorizing the cities and towns to regulate the same,” provides that cities and towns may license “ jitney” busses and that no license shall issue until a bond with surety is given conditioned for the payment of “all damages sustained by any person injured in his person or property caused by any careless, negligent or unlawful act on the part of the principal named in such bond, his agents, employees, or drivers in the use or operation of such motor bus.”</p> <p>Under authority of this chapter the city of Providence passed Chapter 93 of its ordinances.</p> <p>Held, that a person injured by the negligence of a motor bus licensee in the operation of his motor car had the choice of proceeding in the recovery of damages either by an action of trespass on the case or an action of debt on bond, and it was not necessary for plaintiff to recover judgment against the principal for negligence in causing the injury, before maintaining against the principal and sureties an action on the bond.</p> <p>Held, further, that the liability of the sureties was unconditional and they might be proceeded against alone, the bond in the case at bar being joint and several.</p> <p>Held, further, that the right of action.on the bond was not limited to passengers in the car of the licensee, but was also for the benefit of pedestrians or persons on automobiles other than that of the licensee.</p>

<p>(1) Landlord and Tenant. Defective Premises.</p> <p>Defendant was the owner of a dwelling house, in front of which was a depression about 12 feet square and 4 feet deep with the wall of the house at the back and partly on two sides, with a picket fence about feet high on the front and on the remainder of the two sides. About in the center of this area was a barrel sunk in the ground so that only an inch or two of the rim extended above the surface; there was a spring the waters from which were received in the barrel; the water in the barrel was about two feet deep; there was a gate in the fence and from the gate leading down to the level of the spring were three wooden steps; there was a piazza on the front of a part of the house and the end of the piazza adjoined the area of the spring and overlooked it and was guarded on that end by a railing; the entrance to the tenement where plaintiff lived as a boarder with the person who hired one tenement in the house, passed over this piazza to the door of the house. Plaintiff with his two young children had been living in the tenement for about three weeks; the lessee of the tenement had full knowledge of the spring, although he did not use it. A child of the plaintiff about two and a half years of age was found drowned in the spring; at that time the gate in the fence in front of the spring was open; this gate was not very secure and had been in that condition for some time, but no complaint was ever made by the tenant to the landlord; it did not appear that the landlord ever made any agreement to make any repairs nor that the barrel was covered at any time, nor that the landlord retained any control of the yard or spring, but that the tenant had the sole use and control of the yard and spring and the right to make use thereof for himself and family and such persons as he invited upon the premises and into his house as boarders.</p> <p>On above facts held that a direction of a verdict for defendant was proper.</p> <p>(g) Landlord and Tenant. Defective Premises.</p> <p>A landlord not under contract to repair is not as a general rule, responsible to the tenant for injuries caused by a defective condition of the demised premises, in the absence of any fraud or concealment on the part of the landlord as to their safe condition; but where the defects are not secret, but obvious, the tenant takes the risk of their safe occupancy.</p> <p>(3) Landlord and Tenant. Sub-Tenant. Defective Premises.</p> <p>A sub-tenant has no greater right of recovery for defective premises than the tenant himself; he does not occupy by premission of the landlord and his rights in regard to injuries received from defects in the premises are governed by the same rules and are subject to the same limitations as the tenant’s.</p>

<p> Mechanics’ Liens. Original Excavation. Mortgages. </p> <p>Excavation, of a cellar was made in September, 1912; the stone work was not done until the following spring. October 15 a mortgage of the premises was executed and recorded November 6. Thereafter petitioner furnished materials in the building of the house.</p> <p>Held, that the excavation of the cellar was constructive notice to all persons who might acquire any interest in the property that liens for labor and materials to be used in the construction of the building might attach and become entitled to priority, and as it appeared that there was no change of plan as to construction of the house upon the cellar and no abandonment of the work commenced by the excavation of the cellar, but simply delay in final completion of the foundation, the lien of petitioner for materials was entitled to priority over the mortgage.</p>

<p>(1) Constitutional Law. Eminent Domain. Water Supply.</p> <p>Pub. Laws, cap. 1278, “An act to furnish the city of Providence with a supply of pure water,” is not obnoxious to Cons. U. S. Art. XIV of Amendments nor to Cons. R. I. Art. J, §§ 5 and 10.</p> <p>(#) Constitutional Law.</p> <p>Cons. R. I. Art. I, § 10, applies only to persons accused of crime.</p> <p> (5) Constitutional Law. </p> <p>Cons. R. I. Art. I, § 5, in view of its origin and history and its construction and application by the Court, has no bearing on questions raised in regard to condemnation proceedings, taken under Pub. Laws, cap. 1278, “An act • to furnish the city of Providence with a supply of pure water.”</p> <p> (4) Constitutional Law. Eminent Domain. </p> <p>While the question whether the purpose of a talcing is a public one is judicial, the necessity and the proper extent of a talcing is a legislative question.</p> <p> (6) Constitutional Law. Eminent Domain. Compensation. </p> <p>When the power of eminent domain is exercised for the benefit of the State or a municipal corporation, if a remedy is provided against the State or municipality which is adequate and certain, it is not essential that payment should first be made before the taking by condemnation.</p> <p>(<?) Constitutional Law. Water Supply. Conditions.</p> <p>A provision in an act to furnish the city of Providence with a supply of pure water by which certain municipalities and water and fire districts located in the drainage district are given the right to takq and receive certain limited amounts of water on certain terms and conditions, is reasonable and just, in providing for communities whose source of water supply has been taken away, for in securing to the city of Providence the advantage of the act the legislature has the power to impose reasonable conditions.</p> <p>(7) Constitutional Law. Interested Parties.</p> <p>Where in an act to furnish the city of Providence with a supply of pure water, provisions giving certain municipalities and water and fire districts located in .the drainage district the right to take limited amounts of water on certain terms, are severable from the remainder of the act and are permissive in their nature and ’ not obligatory upon the municipalities entitled to receive the water, the validity of such provisions can be determined later if questioned by anyone whose rights are affected, but before even the 'dam and reservoir are completed, complainants as taxpayers of the city of Providence have no such interest as will enable them to test the constitutionality of the provisions.</p>

<p>(1) Construction of Statutes.</p> <p>In case of uncertainty in the construction of a statute the other provisions of the act may be referred to and even its title, if thereby aid is furnished in determining what was the intent of the legislature..</p> <p> (2) Railroads. Grade Crossings. </p> <p>Pub. Laws, R. J., cap. 896, “For the abolition of certain grade crossings in the cities of Pawtucket and Central Falls,” approved April 29, 1912, provides in Section 1 that the grade crossings at certain streets “shall be eliminated and altered,. ”</p> <p>At the time of the passage of the act the streets crossed a spur track and two through tracks at grade.</p> <p>Held, that the word “altered” should not be interpreted in a way to permit the continued operation of any of the tracks at the same level as the highways, but that the intention of the legislature was to require the removal of all railroad tracks from the level of the streets.</p> <p> (8) Railroads. Grade Crossings. </p> <p>Under the authority conferred upon the commission appointed under pro- . visions of Pub. Laws, cap 896, “for the abolition of grade crossings in the cities of Pawtucket and Central Falls,” approved April 29, 1912, it was empowered to remove the right of way of a railroad from its former location to a new one a considerable distance away, although this change in location necessarily resulted in a discontinuance of the use of all tracks at its former location, including a spur track adjacent to the place of business of petitioner, thereby resulting in the inability of the carrier to furnish its service to the industries adjoining the track in exactly the same manner in which it had formerly been able to do.</p> <p> (4) Railroads. Grade Crossings. </p> <p>Where the service of freight delivery which a railroad had formerly performed by means of a spur track adjacent to petitioners’ place of business, can be performed by the use of another track at the new location of the railroad, although less convenient to petitioner, it cannot be considered a discontinuance of service.</p> <p>(5) Railroads. Grade Crossings. Custom. Constitutional Law. Taking Property.</p> <p>Merchants and industries which have benqfitted from a custom followed by a railroad of furnishing spur track connections for the purpose of facilitating the movement of freight to and from their establishments adjoining the railroad’s right of way, do not from that fact and the existence of such custom acquire a property right in such service; when the State requires the removal of the railroad location and thus severs the spur track, they therefore are not entitled to compensation.</p> <p>(6) Constitutional Law. Taking Property. Railroads. Grade Crossings. Police Power.</p> <p>When the State in the exercise of its police power for the public safety removes a railroad location, providing more ample facilities elsewhere for the conduct of railroad business, the railroad company is not entitled to compensation for any loss arising out of such exercise of the police power, for when the company by authority of the State acquired its location and right to conduct its business there, it did so with full knowledge that the legislature at any time thereafter for the public safety might require said location to be abandoned for railroad purposes, and when such change is ordered there is no taking of property for public use for which compensation must be provided.</p> <p>(7) Constitutional Law. Taking Property. Railroads. Grade Crossings. Police Power.</p> <p>Pub. Laws, R. I., cap. 896, “For the abolition of certain grade crossings in the cities of Pawtucket and Central Falls” approved April 29, 1912, provides that the “ Commission shall prescribe the manner and limits of the elimination and alteration of said grade crossings . . . and of the location of the railroads” and “shall specify . . . what, if any, changes shall be made” and “shall forthwith return its decision in triplicate accompanied by plats in duplicate showing the proposed layout.” In the decision of the commission filed in the Superior Court, there was a provision for the elimination of the grade crossings at certain streets, but the commission recommended that a spur track be allowed to remain at grade. On the plat through tracks were shown in dotted lines marked to be removed. The spur track was shown in solid lines, and not so marked. Afterwards the Superior Court permitted the commission to amend its decision by striking out the recommendation as to the spur track, but the plat was not changed, and the decision so amended was confirmed.</p> <p>Held, that upon the confirmation of the amended decision the’commission was authorized to eliminate the grade crossings, including the spur track, and in view of the travel of the matter as shown on the record the plat delineating the spur track in solid lines was not inconsistent with the amended decision.</p>

<p>(1) Guardian and Ward. General and Special Bonds.</p> <p>While by the weight of authority the surety on the general bond of a guardian is not liable for the default of his principal, when the act, whose performance is required to be secured by a special bond, is not one of the general duties within the express or implied terms of the statute providing the form of the general bond, but rather an added duty for which special security is required, yet when the act, as a sale of real estate, is done, or the ward’s title passes, by reason of some proceeding in another court or upon the petition of another person (although the guardian or ward is made party thereto) and the money derived as a result of such proceeding is paid over to the guardian, the surety is liable therefor as money belonging to the ward.</p> <p> (2) Corporations. Stock Deemed Real Estate. Guardian and Ward. </p> <p>By an act of incorporation the shares of a corporation were to be deemed real estate. The corporation having disposed of its real estate holdings distributed the proceeds among the stockholders and a guardian received the share of his ward. The corporation was not dissolved.</p> <p>Held, that as the corporation retained its franchise its shares still had some value, retaining their character as real estate, and in strictness there had been no sale of the stock and a surety was liable on the general bond of the guardian for the embezzlement of the money received by him, but if the diminution in value of the stock by the sale of the real estate could be construed to be a sale of the stock, the surety still was liable as such sale was effected by the corporation and not by the guardian.</p>

<p>(1) Negligence. Common Carriers. Evidence. Custom.</p> <p>In an action for negligence against a railroad, arising out of an accident on the premises of a factory using a spur track to receive freight, evidence tending to prove a custom on the part of the factory to station a flagman at the crossing of the spur track at a delivery door at such times as an engine was in its yard engaged in switching cars, was admissible, although not conclusive on the question of the alleged negligence, for the test of liability is not whether the train was operated in the usual and ordinary way and according to custom established between the railroad and the factory, but whether it was handled with ordinary care — such care as a person of ordinary prudence would use in the same circumstances.</p> <p> (2) Negligence. Common Carriers. Custom. Negligence. Direction of Verdict. </p> <p>In an action for negligence against a railroad, arising out of an accident on the premises of a factory using a spur track to receive freight, it appeared in evidence that the engineer knew of the location of the crossing of the spur track at a delivery door and of the danger to be apprehended from the nature of the surroundings at this place, and there was nothing to show any necessity for the engineer to continue to look backward toward the rear of the train away from the direction in which it was moving; and evidence was also introduced of a custom on the part of the factory to station a flagman at the crossing when an engine was engaged in switching in the yard.</p> <p>Held, that the question of defendant’s negligence was one of fact for the jury, and it was error to direct a verdict for defendant on the ground that it had the right to assume the track would be guarded and as the engineer did not become aware of the danger until too late to avoid the collision, it was not guilty of negligence.</p>

<p>(1) Wills. Construction.</p> <p>In the construction of wills unless a contrary intention clearly appears the language of the will should receive its ordinary and natural construction.</p> <p>(2) Wills. Trusts.'</p> <p>By a testamentary trust, trustee was directed to pay the net income, seven-tenths to testator’s daughter S., and three-tenths to his son J. The will provided, “In case my daughter S. shall not be living at my decease or shall die during the continuance of this trust, her daughter H. shall take her mother’s share and in case H. shall die before the termination of the trust, leaving no child or children, said income shall thereafter go to my daughters C. and M., share and share alike, and in ease of the death of C. or M. or of both before the expiration of the trust, their children shall take the share of their parent, per stirpes, and in case H. shall die before the termination of said trust, leaving a child or children such child or children as the case may be shall take the parent’s share.” Then followed two paragraphs (a) “And as to all said net income the payment of which is not herein provided for, the same shall be divided and apportioned equally between such of my children other than J. as shall be living at the time of the ascertainment and vesting of the said quarterly payments, respectively, and the children of such of them as shall not be then living and the survivors of them from time to time, children to take per stirpes.” (b) “If notwithstanding the provisions of the last preceding paragraph any case should arise in the administration of this trust in which provision is not found herein for thé payment of any of said installments of income or any portion or portions of the same, said trustee is hereby empowered to retain the same until the termination of this trust keeping the same invested and turning it over with the accumulations to the parties who shall be entitled to said trust estate upon the termination of the trust.”</p> <p>Testator’s daughters. S., C., and M., were living; but his son J., deceased after the death of testator, leaving surviving him a son.</p> <p>Held, that the three-tenths share of J. was controlled by the provisions of paragraph (a) and in accordance therewith such share should be paid as it accrued equally among testator’s three daughters, and in case of the decease of a daughter, then to the child or children of such daughter per stirpes.</p>

<p> (1) Negligence. Damages. Death by Wrongful Act. </p> <p>An action under Gen. Laws, R. 1., 1909, cap. 283, § 14, of death by wrongful act, should be considered as though it were brought in behalf of the estaté of the decedent for the damages to that estate caused by the death in question, and the purpose of the statute should be similarly construed whether decedent be of full age or a minor.</p> <p>Schnable v. Providence Public Market-, 24 R. I. 477, as to measurement of damages, overruled. This case was followed in Powell v. Rousseau, 38 R. I. 294, and Russo v. R. I. Company, 38 R. I. 323.</p> <p>(2) Negligence. Death by Wrongful Act. Measure of Damages.</p> <p>In an action brought under Gen. Laws, R. I., 1909, cap. 283, § 14, for damages to the estate of a minor, the amount of his earnings during minority should not be considered in ascertaining the gross amount of his prospective income or earnings; unless it appears that during minority he had been emancipated in which ease the amount of his earnings up to the time of his emancipation should not be considered in the computation, and with this exception the damages are measured by ascertaining the gross amount of the prospective income or earnings of decedent, based upon his expectancy of life, after deducting therefrom what decedent would have had to lay out as a producer to render services or to acquire the money or income that he might be expected to produce, computing such expenses according to his situation in life, his means and personal habits and then reducing the net result so obtained to its present value.</p>

<p> (1) Criminal Law. Evidence. </p> <p>In a criminal prosecution evidence was properly received to show when defendant was first seen in the town where the offence was committed, after the assault, by persons who were engaged in searching for him.</p> <p> (2) Trial. Order of Proof. </p> <p>It is within the power of a justice presiding at a jury trial to regulate the order of proof. In his discretion he may admit competent evidence at any stage of the trial, and no distinction exists between civil and criminal causes. Such evidence may be admitted after the State has rested its case and to the exercise of such discretion no exception lies.</p> <p> (8) Criminal Law. Evidence. </p> <p>Where the justice presiding at a criminal trial might have permitted the introduction in rebuttal of the shovel with which an assault was alleged to have been committed, but in the exercise of his discretion refused permission to introduce it, there was no impropriety on the part of the prosecution in bringing it into court and seeking permission to introduce it, the circumstances giving no support to the claim of defendant that it was offered after the case in chief had been closed for the purpose of improperly influencing the jury, and no ground being shown for the inference that the minds of the jury were inflamed by the sight of it, and nothing to show that it was a different shovel from the one already described by the witnesses.</p>

<p>(1) Fire Insurance. Awards. Tender.</p> <p>Plaintiff brought action upon a policy of fire insurance to recover loss, the declaration expressly alleging the invalidity of an award made under the policy upon several grounds substantially as set forth in a bill in equity filed in aid of the action at law. Defendant company filed a plea of tender under Gen. Laws, cap. 288, §§ 6 and 7, bringing into court the amount of the award, which plaintiff accepted in part satisfaction.</p> <p>Held, that under the terms of the statute the action of plaintiff in accepting the tender in part satisfaction was proper, and there was no ground for the claim by defendant that plaintiff by so doing lost his right to further prosecute his action at law, or that he had accepted the awax’d, in view of the whole procedure which assailed it and the plain terms of the statute relating to tender.</p> <p>(g) Fire Insurance. •Awards.</p> <p>An agreement for submission to appraisers under a policy of fire insurance provided for the appointment of one appraiser by each party and in case of disagreement for the selection by such two, of a third appraiser or umpire, and that the appraisers in determining the sound value and the damage were to make an estimate of the actual cash cost of replacing or repairing the same or the actual cash value thereof at and immediately preceding the time of the fire and in case of depreciation of the property from use, age, condition, location or otherwise, a proper deduction was to be made therefor. The award thereunder was signed by the umpire and one appraiser.</p> <p>Held, that the award in the form submitted was not valid on its face as it did not disclose any “matters of difference” which the umpire was called on to settle, or that one of the appraisers acted at all.</p> <p>Held, further, that as the award was not valid upon its face, and as the court could only determine what was done by the appraisers and umpire from the testimony, the award was entitled to but little weight as testimony, particularly as it amounted to a mere statement of certain total sums as the loss with no details or methods showing how these sums were determined or the items of loss allowed, and furnished no means of comparison with the testimony offered by complainant.</p> <p>(S) Fire Insurance. Arbitration and Award.</p> <p>Held, further, that where a method of construction originally adopted for the premises was proper even if unusual, refusal to make allowance for such loss for the reason that houses were not now built in that way, was an arbitrary refusal to make an allowance for substantial items of damage specifically brought to the attention of the appraisers. -</p> <p>(4) Fire Insurance. Arbitration and Award.</p> <p>Evidence before appraisers under a submission to arbitration under a policy of fire insurance considered and award set aside, on ground of wilful refusal to make allowances in certain instances and as unjust and inadequate.</p>

<p> (1) Negligence. Workmen’s Compensation Act. Election of Remedies. </p> <p>Article III, Section 21, Workmen's Compensation Act, provides that where the injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may take proceedings both against that person to recover damages and against any person liable to pay compensation under the act for such compensation, but shall not be entitled to receive both damages and compensation, and if the employee has been paid compensation under the Act, the person by whom the compensation was paid shall be entitled to indemnity from the person so liable to pay damages and to the extent of such indemnity shall be subrogated to the rights of the employee to recover damages therefor.</p> <p>Held, that where payments were received by the employee from the employer under a bona fide agreement that the money was to be returned if damages were obtained from the wrongdoer, the employee was not barred thereby from proceeding against the wrongdoer for damages and the fact that such payments were made under an agreement filed in court and approved by the court, where the employee was the moving party, was not material and could not be regarded as an election, since the employee was given express authority to take proceedings both against the employer and. the negligent third party, the only limitation being that he should not be entitled to receive both damages and compensation.</p> <p>Held, further, that the effect of the agreement was to accomplish the purpose of the statute in giving .the right of indemnity to the employer against the negligent third person with the intent that the final payment for the damages suffered should not be made by the employer, but by the person responsible for the injury, and it was not the intent of the statute to lessen or change the liability of the negligent third person who was fully protected therein from a double liability.</p> <p>Vincent and Baker, JJ., dissenting.</p> <p>08) Workmen’s Compensation Act. Construction of Statutes.</p> <p>It being apparent that the Workmen’s Compensation Act of 1912, was patterned closely after the English Act, 1906 (Ch. 58,6 Edw. 7), the construction placed upon the statute by the English courts is entitled to very great weight, and in view of the similarity of the acts is of persuasive authority.</p>

<p> (1) Wills. Trusts. Time. “Heirs at Law.” </p> <p>Testamentary provision “From and after the decease of my said daughter should she leave a child or children, the said trustees shall appropriate so-much of the income of the said trust funds as may be necessary for the support of such child or children until the youngest of them shall attain the age of twenty-one years or otherwise become of age — at which time they shall terminate their said trust by conveying to the child or children of my said daughter their heirs and assigns in equal shares all the estate real and personal then holden by them in trust.</p> <p>But if my said daughter shall decease without leaving any child or children living at the time of her decease, I then direct that the said trustees shall thereafter pay to my wife for her own use if she has remained unmarried the annual sum of $500 so long as she remains unmarried. And shall also immediately thereafter pay the following sums to the persons hereafter named; (here followed a list of 17 bequests); they shall also pay to some suitable person the sum of $2,000 as trustee for the sole use and benefit of my sister B, so that she shall receive the income thereof during her life and so much of the principal from time to time as may be necessary for her support with the right of disposing of the principal or what may remain of it at her decease.</p> <p>“They shall also pay to each of my nieces the annual sum of $30 so long as they respectively remain unmarried and also to my nephew the annual sum of $30 for the term of ten years. And all the rest and residue of the said trust funds remaining after the payment of the said sums and reserving a sufficiency for the payment of the annuities provided for in this will they shall distribute to and among my heirs at law, in the proportions in which they would severally be entitled under the statute for the distribution of intestate estates. And whenever the payment of the said annuities shall cease, so much of my said estate, as may have been reserved for their payment shall be then distributed in like manner.”</p> <p>All of the legatees of the pecuniary legacies and the testator’s sister B, sur- . vived testator, but predeceased his daughter, the sister B. dying without attempting to exercise the power of disposition over the fund.</p> <p>Held, that under the well established rule of construction the word “heirs” is held to refer to the living person or persons holding that relation at the time of the testator’s death in the absence of an intention to the contrary' clearly evidenced in the will.</p> <p>Held, further that the provision for the annual payment to the wife from the residue of the trust estate which was to come into effect after the daughter’s death, only if the wife had remained unmarried and was to cease at once on her remarriage, when considered in connection with the original bequest to her “in lieu of dower or other interest in my real or personal estate” evinced a clear intention that the widow was not to share in the distribution o f the “rest and residue of the trust funds remaining after the payment of the” pecuniary legacies “and reserving a sufficiency for the payment of the annuities” of which the widow’s was one if she did not remarry.</p> <p>Meld, further, that with the death of .his daughter without leaving a living child, and with his wife excluded from sharing in the distribution of the residue, both in mind, testator in providing as to this residue that the trustees “distribute” it “to and among my heirs at law in the proportions in which they would severally be entitled” was considering the death of his daughter, and therefore the “heirs at law” were to be determined at the date of the death of the daughter.</p> <p>Meld, further that the successive distributions of portions of the fund on the termination of the annuities would not necessitate the ascertainment of a new group of heirs as the heirs would once be determined as of the date of the death of the daughter and their right to a share of the fund retained to support the annuities would vest in ownership on the daughter’s death, but not in possession until the annuities were at an end.</p> <p>JKenyon, Petitioner, 17 R. 1. 149, distinguished.</p> <p>(2) Personal Legacies.</p> <p>Meld, further, that in the case of the seventeen pecuniary legacies the intent being apparent to benefit personally each named legatee should he survive to take the gift they were contingent and nontransmissible and failed because of the decease of the legatees before the death of the life tenant.</p> <p> {8} Disposition by Will of Contingent Interests. </p> <p>Meld, further, that as the power to dispose by will of “contingent, executory or other future interests” first appeared in the statutes in 1896, such statute (now Gen. Laws, 1909, cap. 254, § 2) was not applicable.</p> <p>Meld, further, that the bequest in trust for the use of B. and the seventeen pecuniary legacies did not fall into the residue and were not disposed of by the will, but devolved as intestate estate of deceased, and the next of kin of testator at his death would take the property in accordance with the statute of distributions then in force.</p> <p> (4) Wills. Residue. Lapsed Legacies. </p> <p>'To entitle a residuary legatee to the benefit of a lapsed or void legacy he must be a legatee of the residue generally and not partially so.</p> <p> {5) Wills. Trusts. Power to sell. </p> <p>"Where a trustee is directed to distribute the trust property to and among different persons, and cannot make the division or distribution otherwise, a power to sell enough of the property to equalize its division is implied.</p>

<p>(1) Condemnation Proceedings. Intoxicating Liquors. Objection to License-Title to Property.</p> <p>By Pub. Laws, R. I., cap .1278 (1915), § 23, (An act to furnish the city of Providence with a supply of pure water) it is provided that upon the filing, of the statement and plat of the land condemned title to the land shall vest in the city, and that the city may take possession of any of such land, provided that without the consent of the owner it shall not take actual possession, until after the expiration of one year from the date of the filing of such statement and plat.</p> <p>Held, that the fact that the former owners were permitted to retain the occupancy of their premises for one year, did not affect the fact that the title to the land was in the city, and that as owner of the entire area within two hundred feet of the location where it was proposed to grant a liquor license it was entitled to object to the granting of such license.</p>

<p>(1) Contributory Negligence. Question for Jury.</p> <p>The question of contributory negligence is generally one for the jury unless it clearly appears that the only proper inference from the facts is that in the circumstances of the case an ordinarily prudent man would not have acted as did the plaintiff.</p> <p>(#) Direction of Ver diet h</p> <p>A verdict should not be directed if on any reasonable view of the testimony the plaintiff can recover.</p> <p> (S)Highways. Negligence. Notice of Defects. </p> <p>While a fence across a highway is notice to the public that beyond that point construction operations are being carried on, it cannot be said as a matter of law that the presence of such fence is notice that the highway outside of said fence is not in condition for its ordinary use.</p> <p> (4) Highways. Negligence. Notice. Question of Fact. </p> <p>In erecting abutments for a new bridge over a railroad during construction operations a highway was closed by a fence. In the middle of the street about twenty feet in front of the fence was placed a wooden horse about sixteen feet long, according to the longest estimate; attached to which was a sign reading, “Street closed. No passing.” The roadway was about twenty-one feet wide. Plaintiff was injured by a defect in the sidewalk.</p> <p>Held, that it was a question of fact for the jury whether the presence of the horse and sign in the roadway should have caused plaintiff as a reasonable man to apprehend danger on the sidewalk and would have called for the exercise of a degree of caution greater than that ordinarily required of a traveler upon the sidewalk of a city street.</p> <p>(5) Highways. Contributory Negligence.</p> <p>Whether or not a traveler could have seen a defect if he had looked for it is not conclusive in determining whether he is guilty of contributory negligence, unless the surrounding circumstances are such that no other inference can be drawn from his conduct, but there still remains the question of fact whether acting upon the assumption that the city had performed its statutory duty, a traveler who is injured by a defect in a sidewalk, which he fell into while his attention was momentarily diverted, was exercising the care of an ordinarily prudent man in the circumstances.</p> <p>(6) Highways. Changes by Legislative Commission. Notice.</p> <p>The placing of a notice in a highway that it was closed to travel, did not work an extension of the jurisdiction of a commission engaged in railroad construction work, beyond the point which it had clearly marked off as the limit of its operations.</p> <p>(7) Highways. Negligence. Defects. Changes by Legislative Commission.</p> <p>When changes are being made in a public highway by some body independent of the city and acting under direct legislative authority providing for abolition of grade crossings, the city is not relieved from its statutory liability for injury to a traveler caused by a defect in the street if the city has not actually closed the street to public travel.</p> <p>(S) Direction of Verdict. Preponderance of Evidence.</p> <p>A justice of the Superior Court has no authority to direct a verdict in accordance with what appears to him to be the preponderance of the evidence.</p> <p>Vincent J., dissents.</p>

<p>(1) Negligence. Last Clear Chance. Question for Jury.</p> <p>Where there was testimony from which, if believed, the jury could properly find that plaintiff was visible at such a distance from where she was hit by an electric ear as to permit the motorman to see that she was in a place of danger and apparently unaware of it and that he was negligent in not stopping the car in order to avoid hitting her, in accordance with the doctrine of the last clear chance, it was not error £o submit the case to the jury.</p> <p>(0)„ Negligence.</p> <p>In a personal injury action request to charge that “If as soon as the motorman saw plaintiff in a position of danger, he used every appliance at his command to stop the car, he was not guilty of negligence in failing to stop the car before he struck plaintiff,” was properly refused on the ground that it omitted the point that he should have seen plaintiff if he could have seen her.</p> <p> (S) Negligence. Street Car Tracks. Contributory Negligence. </p> <p>In a personal injury action it appeared that in the street where the accident happened there were two car tracks and that ordinarily southbound cars used the west track, but at that time owing to construction work, the west track was alone used for cars going in both directions. Plaintiff alighted from an automobile, beside the west track. She testified that having seen no car approaching from the south as she alighted she took a position permitting her to see a car coming from the north and that according to her observation where there were two tracks in a street, cars always proceeded on the track which in relation to the direction in which they'were going, was on the right and that she never knew them to go otherwise; that she was not aware of the existing conditions and that she did not hear or see the car which struck her coming from the south.</p> <p>Held, that on these facts the case was properly submitted to the jury on the question of fact whether plaintiff was in the exercise of the care required of her in the circumstances in failing to see or hear the approaching car in season to move from the place where she stood.</p> <p> (4) Negligence. Last Clear Chance. </p> <p>Where the court charged that if it were assumed that plaintiff was negligent up to the time she was struck, but the motorman had the opportunity to avoid striking her by using the appliances under his control, and failed to do so, defendant would be liable and no exception was taken, under such statement of law even if the jury found that plaintiff was negligent it would not be decisive in the .event they also found the motorman negligent under the doctrine of the “last clear chance.”</p> <p> (5) Negligence. Damages. </p> <p>In personal injury action verdict for $16,000 disapproved on the evidence.</p>

<p>(1) Workmen’s Compensation Act. Evidence.</p> <p>Medical testimony in response to a hypothetical question as to the probable cause of death is admissible in a petition under the Workmen’s Compensation Act.</p> <p>(2) Workmen’s Compensation Act. Accident.</p> <p>Deceased was employed as a fireman in a boiler room and while at his work, was overcome by the excessive heat and died on the following morning from heat exhaustion.</p> <p>Held, that the unusual and excessive heat producing the sudden inability of the physical system of deceased to longer resist its debilitating effects constituted a chain of circumstances, warranting the finding that deceased received a personal injury by accident 'arising out of and in the course of his employment.</p>

<p> (1) Exceptions. Time. Notice. </p> <p>Where a notice of the decision of the justice of the Superior Court was duly sent by mail by the clerk to the attorney of each party, in accordance with the statutes, and rules of court, legal notice was given, regardless of the fact whether the notice was received or not.</p>