
    Charles W. F. Scott vs. William A. McGroarty.
    JANUARY 7, 1927.
    Present: Sweetland, C. J., Stearns, Rathbun, Sweeney and Barrows, JJ.
    \1) Trial. Charge of Court. Exceptions.
    
    Where the charge of the court was either a material misstatement of the testimony or an infringement upon the right of the jury to determine the facts;
    in either case it is prejudicial error.
    Assumpsit.
    Heard on exceptions of defendant and sustained.
   Sweeney, J.

This is -an action of assumpsit in which the jury returned a verdict for the plaintiff. Defendant bias brought the case to this court by his bill of exceptions.

During the year 1922 plaintiff and defendant’s father were confined in the New Hampshire State Hospital on .account of their insanity. Plaintiff was released from the hospital on parole in February, 1923, and discharged as •completely recovered December 25,1923. February 1,1924, .plaintiff called on the defendant at Apponaug, Rhode Island. As a result of the meeting plaintiff claims that he was engaged by defendant to work for his father’s release from the State Hospital and was promised payment for his services and expenses. Defendant denied that he made such .an agreement.

Plaintiff testified that he entered upon the performance •of this work by engaging an attorney and interviewing "the superintendent of the hospital and several other persons .and claimed that, as a result of his work, Mr. McGroarty was released from the hospital April 10, 1924.

The superintendent of the hospital, called as a witness hy the defendant, testified that upon his statement that Mr. McGroarty had recovered his sanity the Board of 'Trustees ordered his release and that the plaintiff had nothing whatever to do with prevailing upon him to recommend the release of Mr. McGroarty. Mr. McGroarty testified that he thought the superintendent would let him out of bhe hospital when the opportune time came.

Walling and Walling, for plaintiff.

Quinn, Kernan and Quinn, Michael De Ciantis, for defendent.

The trial justice said in his charge to the jury: “There-is no denial that he (plaintiff) did work actively and as a-result of his work, at least Mr. McGroarty was discharged almost within a short time, or within a few days after he-started out apparently Mr. McGroarty was discharged.” Defendant’s exception was noted to that part of the charge-where the court said “ as a result of his work, Mr. McGroarty was discharged”. This exception must be sustained. In. the sentence quoted it is not clear whether the trial justice meant to instruct the jury (1) that there was no denial of the fact that Mr. McGroarty was discharged as a result of the work of the plaintiff or (2) that Mr. McGroarty was-discharged as á result of plaintiff’s work. If the first meaning was intended the instruction was a material misstatement of the testimony as the superintendent of the hospital had testified to the contrary. For such a misstatement exception may be taken by the aggrieved party, §4640,. General Laws 1923. If the second meaning was intended, the trial justice infringed upon the right of the jury to determine the facts and draw their own conclusions therefrom.

An important issue of fact in the case was whether plaintiff procured the discharge of Mr. McGroarty from the-hospital. Defendant was prejudiced by the portion of the charge excepted to as the jury may have understood from it that they w.ere not at liberty to decide the issue in accordance with their own conclusions from the testimony. State v. Lynott, 5 R. I. 295; McNear v. Am. & Br. Mfg. Co., 42 R. I. 302; 38 Cyc. 1517.

As there is to be a new trial the eighteenth exception becomes immaterial. The other exceptions have been considered and found to be without merit.

Defendant’s seventeenth exception is sustained; his other exceptions are overruled and the cáse is remitted to the Superior Court for Kent County for a new trial.  