53 A. 275 | R.I. | 1902
This is defendant's petition for a new trial, after verdict for the plaintiff, of an action of assumpsit for counsel fees for services alleged to have been rendered to the defendant, who is a minor, in bringing and successfully prosecuting *398 an action at law brought by the defendant by her father and next friend, George H. Sprague, against one, Joseph H. Brown, for an alleged indecent assault upon her.
After the petition for a new trial was filed the plaintiff moved to dismiss it for the following reasons. The defendant upon the rendition of the verdict against her duly filed notice of her intention to claim a new trial and asked for an extension of time to file statement of evidence, etc., which was granted and time was extended to October 15, 1901. On October 31, the time was further extended to November 8, on which last-named date the statement was filed, and has been allowed by the justice presiding at the jury trial. The plaintiff claims that inasmuch as there is no written extension of time from October 15, to October 31, on file, the petition should be dismissed as the last extension was not made "within any extension thereof," etc., as required by Gen. Laws R.I. cap. 251, § 6, p. 864. The statute provides that within five days after verdict, or within any extension thereof from time to time on motion therefor, the justice may extend the time for filing statements to such time as he may prescribe. With such discretion in the justice it is to be presumed that his action was regular, and that the extension from October 15 to October 31 has been lost. That a clerical error was committed by the defendant's attorney in dates is apparent, for he heads his original motion for time extension, thus, "Adjourned June Session A.D. 1891," instead of 1901, and asks that the time be extended to October 15, 1891, instead of 1901, the name of the county and the name of parties and the name of court being correctly given. The justice in extending the time gives the date of his action as July 10, 1901, the very date of the rendition of the verdict, and extends the time to October 15, 1901, so the clerical error is of no practical account. The plaintiff also claims that filing the statement on November 8, 1901, is not a compliance with the extension to November 8, 1901. The invariable practice since the enactment of the judiciary act in 1893 by successive judges has been to construe the extension as inclusive of the day to which the extension was granted and to allow statements so *399 filed when correct, and the presiding justice has allowed the statement in this case. The construction so adopted and followed has become too securely established, in our opinion, to be now successfully attacked.
For the reasons given the plaintiff's motion to dismiss the petition for a new trial is overruled.
The defendant petitions for a new trial on the ground that the trial justice erred in his rulings upon questions of law raised at the trial and that said justice declined to rule and charge the jury as requested by the petitioner and ruled against her requests. The defendant's requests which the justice refused to give and to which refusal the defendant excepted are as follows, viz.:
"1. The declaration sets out no cause of action against the defendant, an infant under the age of twenty-one years.
"2. The testimony discloses no cause of action against the infant defendant, the services rendered not being necessaries as a matter of law, and the defendant never having ratified the claim after arriving at her majority.
"3. If the defendant was an infant under the age of twenty-one years, the father could not bind her estate by any contract with the plaintiff for professional services."
We think the first request was properly denied. In the Second Judicial District Court where the action was originally brought, the defendant was described as an infant, and her guardian was duly served with process as required by statute. The defendant demurred because the declaration did not set out that the services rendered by the plaintiff as an attorney were necessaries. The case was tried both on its merits on the general issue and on the demurrer, evidence being put in as to necessaries, and while the District Court was holding it for advisement the plaintiff filed an amended declaration with the averment inserted, for the lack of which the defendant had demurred. Subsequently the district judge rendered a long decision in favor of the plaintiff deciding that the services were necessaries. Thereupon the defendant asked for a jury trial and the case was certified to the Common Pleas Division, where the defendant again demurred for the same reason as *400 before, with the added ground that the declaration did not set out that the defendant had ratified the contract since attaining majority. The demurrer was overruled and the case was tried to the jury, on the questions whether the defendant had made a promise, and whether the services rendered were necessaries that the defendant under the circumstances of the case was liable for, there being no pretence on the plaintiff's part that the defendant had ratified any promise made by her after attaining her majority.
We think the declaration set out a cause of action against the defendant, an infant under twenty-one years, and the trial showed that the defendant's counsel fully understood and appreciated the cause set forth.
The next question raised is whether the plaintiff's services were necessaries. The services rendered by the plaintiff were as follows: "The defendant in the summer of 1898 was seventeen years old and unmarried. In August of that year her father, George H. Sprague, went to the plaintiff's office in Westerly and told him of an indecent assault upon her by one, Joseph H. Brown, and wanted a suit brought in order to protect her and others from similar assaults. The result of the consultation was that the plaintiff brought action against said Brown in the name of the defendant by her father as her next friend, and after trial thereof the jury rendered a verdict in favor of the infant (being the defendant in the case at bar) for $600, which verdict was sustained on a petition for a new trial, and judgment was entered on the verdict in June 1899. Mr. Allen, who is counsel for the defendant in the case at bar, was counsel for the said Brown in the damage suit against him. When the plaintiff in the case at bar visited the clerk's office of the Common Pleas Division with reference to getting out an execution in the damage suit against Brown he found a paper filed June 13, 1899, signed by said Brown and by Phebe A. Carr (for Miss Sprague had been married then) to the effect that the case had been settled; but said paper was not signed by her father, George H. Sprague, her next friend, nor had any guardian then been appointed. Notwithstanding this peculiar settlement execution was ordered to issue. The plaintiff in the *401 case at bar, as shown by the statement of evidence, swore as follows, viz.: "I went to see her" (the present defendant) "and she was sick. I asked her if she had made that settlement and she didn't answer at first but finally admitted that on June 13th she was sent for by Mr. Allen to come to a neighbor's there and she went without the knowledge of her father or mother and they settled it up taking a $400 note. At this time she told me she didn't want to settle it and wanted me to look out for her."
The full judgment amounting to $663 was finally collected, but not without efforts made in court by said Brown to enforce the settlement. After the execution was collected, the amount was paid to the defendant's guardian who had then been appointed.
It is urged for the defendant that the plaintiff's claim for services is properly one against George H. Sprague, and not against her.
The situation was this. A girl of seventeen having no estate and no guardian was the victim of an indecent assault. She had a father and mother, and her father, her natural guardian, so to speak, at once took steps for his daughter's protection and for compensation for her sufferings, and incidentally for the punishment of her assailant. Her father was naturally her next friend, and legally became such to enable a suit to be brought, as she, being a minor, could not, except under very extraordinary circumstances, bring it without the aid of a next friend to manage it, which the law presumes, from the disability of her infancy, she is unable properly to manage herself; the next friend being liable to the defendant for costs of suit in case the infant fails in the action. Bliven v. Wheeler,
If the suit against Brown was a legally proper one for the next friend to have aided the infant to bring, and the expense of counsel engaged therein was what is technically termed in law "necessaries," then the infant defendant would be liable *402 for such necessaries. It has been urged that the infant, inpropria persona, did not promise the plaintiff in the case at bar to pay him for services, nor did she actually engage him. The father's duty as next friend was to exercise his mature judgment in the management of the action which the immature judgment of the infant, the law presumed, was not equal to; and the very first occasion for the exercise of such judgment was in the employment of capable counsel. The daughter knew of the bringing of the suit and profited by its successful prosecution. She must have conferred with counsel and appeared as a witness, and she certainly attempted to settle such action in a manner highly injurious to her own interests. An implied promise for necessaries is sufficient, Gay v. Ballou, 4 Wend. 403, and in the case at bar the circumstances, we think, are sufficient to imply a promise on the part of the infant defendant.
The next question to be considered is — Was the service rendered by the plaintiff as an attorney at law, legalnecessaries for the minor?
In 5 Bacon's Abridg. (Edited by Bouvier) 118, it is stated that where infants "contract for necessaries they are absolutely bound; and this likewise is in benignity to infants, for if they were not allowed to bind themselves for necessaries, no person would trust them, in which case they would be in worse circumstances than persons of full age. Therefore it is clearly agreed by all the books that speak of this matter, that an infant may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards."
Bouvier, in his Law Dictionary, Vol. 2, 476, says: "The term necessaries is not confined merely to what is requisite barely to support life, but includes many of the conveniences of refined society. It is a relative term, which must be applied to the circumstances and conditions of the parties." Dicey, in his work on Parties, 285, says: "The word necessaries, as applied to an infant, extends beyond the sense which is given it in ordinary conversation. It not only includes such articles as *403
are necessary to the support of life, but extends to articles fit to maintain the particular person in the station and degree of life in which he is placed. The term necessaries is, in other words, purely relative to the infant's position in life. . . . From the relative character of the term, combined with the tendency of juries to find an infant, if it be possible, liable on contracts of which he has received the benefit, has arisen a considerable variety in the decisions on the question as to what things are and what are not necessaries." As said by the Supreme Court of Nebraska in Englebert v. Troxell,
There are numerous cases to be found in the books deciding that an infant is not liable to an attorney for services rendered, though these are in most part for services rendered as to the infant's property. Then there are cases where infants have been held liable for counsel fees as necessaries, even when the services related to the infant's property, if beneficial to the infant's estate. Epperson v. Nugent,
Munson v. Washband et al.,
In Barker v. Hibbard,
In Askey v. Williams,
Following the analogy of the last three cases cited, which commend themselves to us, we think that in the case at bar, the action of the defendant against her assailant, Brown, was brought for her protection, even if the result of it, after paying the plaintiff's counsel fees, will increase her estate. We are of the opinion that the counsel fees sued for in this case were legal necessaries.
The third request of the defendant which the presiding justice denied, viz.: "If the defendant was an infant under the age of twenty-one years, the father could not bind her estate by any contract with the plaintiff for professional services — ," might be correct as an abstract proposition of law disconnected from the circumstances of this case, but with its connections, we think it was properly denied. The father's employment of *407 the plaintiff as counsel in the action against Brown was simply for his infant daughter while he was acting as her procheinami, and in connection with the conduct of his daughter was not the father's promise, but the implied promise of the infant daughter.
We find no errors in the rulings of the presiding justice at the jury trial of which the defendant can complain, for the defendant's fourth request to charge was granted, and that, in our opinion, without further explanation, was too favorable to the defendant. That request was as follows: "Nothing to the contrary appearing it is presumed that the father provided the defendant with all necessaries and she cannot bind herself for necessaries." It is a general rule that a father (at least of sufficient ability, Pearce, Trustee, v. Olney,
In Munson v. Washband, supra, the infant's father turned her out of doors, while in this case the infant's father lent all the aid in his power, but in the former case the court required the counsel's services to be paid, and we see no reason why in this case counsel is not equally entitled to pay for his services. Whether, however, the fourth charge was too favorable for the defendant or not, is of no consequence, as it did not injure the defendant.
The defendant's conditional exception contained in her counsel's words — "If your honor has charged that the jury is to decide whether these services were necessary or not, then I wish to take an exception — " if formally correct and allowed, can avail the defendant nothing. There are authorities both ways, viz., — that the question of necessaries is for the court, and also that it is a question for the jury. Inasmuch as the jury have found that the plaintiff's services were necessaries, if it was a question for them, and inasmuch as, if it was a question for the court, the court would have had to have ruled that said services were necessaries in this case, the defendant has no ground to be aggrieved.
For the reasons hereinbefore given, the defendant's petition for a new trial is denied, and the case is remitted to the Common Pleas Division with direction to enter judgment upon the verdict.