138 A. 210 | R.I. | 1927
The above entitled case is a petition praying for a writ of prohibition restraining the respondent as justice of the District Court of the Eighth Judicial District from proceeding upon the complaint of one Lorenzo Fontaine, wherein said Fontaine requests the privilege and benefit of the poor debtor's oath.
Immediately after hearing the petition, the court in a rescript granted the petitioner's prayer, and ordered a writ *438 of prohibition to issue, returnable forthwith, restraining the respondent in accordance with the prayer of the petition.
For the benefit of practice upon complaints requesting the benefit of the poor debtor's oath we now in this opinion more fully set out the reasons for the determination of the court.
The petitioner as husband and beneficiary of Agnes Read, deceased, in reliance upon the statute, commenced in the Superior Court an action of trespass against said Lorenzo Fontaine to recover damages for the death of Agnes Read, alleged to have been caused by the wrongful act of said Fontaine in driving a motor vehicle with great force and violence against Agnes Read, whereby she was severely injured and died on the same day. Upon trial of that cause verdict was rendered against Fontaine in the sum of $3,500. Judgment was entered upon the verdict, execution in arrest was issued against Fontaine, and he was committed to the Providence County Jail where he stood committed at the time of the filing of the petition before us. Upon his commitment Fontaine immediately complained to the respondent justice and requested the privilege and benefit of the poor debtor's oath to which he claimed he was entitled under the statute.
Section 1, Chapter 377, General Laws 1923, provides that "Any person who shall be imprisoned for debt, whether on original writ, mesne process, or execution," . . . "may request to be admitted to take the poor debtor's oath." In the early case ofThompson v. Berry,
At the hearing before us it was urged in behalf of the respondent and also of said Fontaine, that although in conformity with the statute it is noted in the margin of the execution upon which Fontaine was committed to jail that it was issued upon a judgment rendered in an action of trespass, and although the writ and declaration was in trespass, nevertheless as the cause of action arose from the consequential and not the direct result of Fontaine's wrongful act, the action against him should be treated as one in trespass on the case. The respondent further contends that every action upon the "death by wrongful act" statute should be in case and not in trespass, for the reason that the recovery provided in that statute is for the damages to the relatives of the deceased for the indirect injury to them arising from the death. Each of these contentions of the respondent is unsound. InRosen v. Bliss,
It has been held by this court that the wrong to the estate may be considered as immediate and direct, warranting an action in trespass, if the wrongful act causing the death was immediate and direct. Wells v. Knight,