Berard v. Smith

Supreme Court of Rhode Island

Berard v. Smith

72 A. 705, 29 R.I. 528, 1909 R.I. LEXIS 49

DecidedMay 12, 1909

StatusPublished

This text of 72 A. 705 (Berard v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berard v. Smith, 72 A. 705, 29 R.I. 528, 1909 R.I. LEXIS 49 (R.I. 1909).

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Opinion

Per Curiam.

The court is of the opinion that the plaintiff’s exception to the decision of the Superior Court sustaining the demurrer to the fifth count must be overruled. As said by the justice who heard the demurrer: “There is no breach of duty alleged on the part of the master in failing to exercise due care for the safety of his servant, but the only negligence which is set forth is that 'the defendant by his agent’ threw certain articles which collided with the boat and caused the death of 'the plaintiff’s intestate. It seems to me clear that the only negligence which the plaintiff can claim to have alleged is that of a fellow-servant. Di Marcho v. Builders Iron Foundry, 18 R. I. 514.”

The court is also of the opinion that the demurrer to the fourth count is well taken, viz.: “That it does not appear therein .that said boat overturned and upset and filled with water and sank by reason of the alleged negligence (of the defendant.)”

A majority of the court, however, are of the opinion that the demurrers to the first, second and third counts should be overruled, being of the opinion that the averment that the boat alleged to have been furnished the plaintiff’s intestate by the defendant was “unsafe,‘dangerous, and wholly unfit’” *530 for the purposes set forth in the several counts, to the knowledge of the defendant, are sufficient, within the decision in Cox v. Providence Gas Co., 17 R. I. 199, and Ellis v. Waldron, 19 R. I. 369, to set forth a prima facie cause of action without specifying the particular defect which caused the boat to sink.

Sheffield, Levy & Harvey, for plaintiff. Vincent, Boss & Barnefield, for defendant.

The plaintiff’s exceptions to the decision of the court’sustaining the demurrers to the fourth and fifth counts of the declaration are overruled, and his exceptions to the decision sus-taining the demurrers as to the first, second, and third counts are sustained; and the case is remitted to the Superior Court for further proceedings.

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Per Curiam.

The court is of the opinion that the plaintiff’s exception to the decision of the Superior Court sustaining the demurrer to the fifth count must be overruled. As said by the justice who heard the demurrer: “There is no breach of duty alleged on the part of the master in failing to exercise due care for the safety of his servant, but the only negligence which is set forth is that 'the defendant by his agent’ threw certain articles which collided with the boat and caused the death of 'the plaintiff’s intestate. It seems to me clear that the only negligence which the plaintiff can claim to have alleged is that of a fellow-servant. Di Marcho v. Builders Iron Foundry, 18 R. I. 514.”

The court is also of the opinion that the demurrer to the fourth count is well taken, viz.: “That it does not appear therein .that said boat overturned and upset and filled with water and sank by reason of the alleged negligence (of the defendant.)”

A majority of the court, however, are of the opinion that the demurrers to the first, second and third counts should be overruled, being of the opinion that the averment that the boat alleged to have been furnished the plaintiff’s intestate by the defendant was “unsafe,‘dangerous, and wholly unfit’” *530 for the purposes set forth in the several counts, to the knowledge of the defendant, are sufficient, within the decision in Cox v. Providence Gas Co., 17 R. I. 199, and Ellis v. Waldron, 19 R. I. 369, to set forth a prima facie cause of action without specifying the particular defect which caused the boat to sink.

Sheffield, Levy & Harvey, for plaintiff. Vincent, Boss & Barnefield, for defendant.

The plaintiff’s exceptions to the decision of the court’sustaining the demurrers to the fourth and fifth counts of the declaration are overruled, and his exceptions to the decision sus-taining the demurrers as to the first, second, and third counts are sustained; and the case is remitted to the Superior Court for further proceedings.

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Bluebook (online)

72 A. 705, 29 R.I. 528, 1909 R.I. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berard-v-smith-ri-1909.