58 A.2d 501 (N.H. 1948), 3719, Rivard v. J. F. Mcelwain Co.

Docket Nº:3719
Citation:58 A.2d 501, 95 N.H. 100
Opinion Judge:KENISON
Party Name:Alice Rivard, Adm'x v. J. F. McElwain Co
Attorney:Maurice A. Broderick (by brief and orally), for the plaintiff. Alvin A. Lucier (by brief and orally), for the defendant.
Case Date:April 06, 1948
Court:Supreme Court of New Hampshire

Page 501

58 A.2d 501 (N.H. 1948)

95 N.H. 100

Alice Rivard, Adm'x


J. F. McElwain Co

No. 3719

Supreme Court of New Hampshire

April 6, 1948


         In a petition for compensation, evidence that the nature of the work performed by the employee required an exertion of pressure was sufficient under all the circumstances to justify a finding that the employee's subsequent death by strangulated hernia was the result of the strain thus received and arose out of and in the course of his employment.

         An ordinary and usual strain of work contributing to cause the death of a workman by hernia strangulation is "by accident" within the meaning of the Workmen's Compensation Act.

         Hearsay evidence admitted subject to exception but later stricken from the record and given no probative force is harmless.

         While an injured party is entitled to have his award of compensation computed under any section of Workmen's Compensation Act that affords him the greatest benefits he is not entitled to more than the maximum permitted by the statute.

         PETITION, for workmen's compensation under R. L., c. 216 as amended by Laws 1943, c. 113, for death resulting from a strangulated hernia. The court, in awarding "the plaintiff the sum of $6,300 plus two weeks total incapacity amounting to $42.76," made the following findings of fact:

         "1. The deceased was injured on November 14, 1946 by accident arising out of and in the course of his employment with the defendant in its shoe manufacturing business....

         "6. Although the deceased had suffered a hernia several years before the accident, he was otherwise in good health at the time of the accident, and had been working steadily prior to the accident....

         "10. The strain of the work that deceased was engaged in at the time of the accident (November 14, 1946) was a contributing cause of his death which occurred on November 30, 1946."

         Defendant's exceptions to the admission of evidence, the quoted findings of fact, the amount of the award and the denial of the motion to dismiss the petition were allowed and transferred by Wescott, J. The facts appear in the opinion.

          Defendant's exceptions sustained in part; overruled in part.

         All concurred.

         Maurice A. Broderick (by brief and orally), for the plaintiff.

         Alvin A. Lucier (by brief and orally), for the defendant.



Page 502

          As a preliminary matter it will be noted that New Hampshire, unlike a majority of states, has no specific statutory [95 N.H. 101] provision restricting compensation in hernia cases. 114 A. L. R. 1337. "It is not to be doubted that an accidental hernia, sustained under conditions mentioned, [in R. L., c. 216, s. 2] would be compensable." 5 Schneider, Workmens Compensation (Perm. ed. 1946) s. 1508.

         We first consider defendant's contention that "competent evidence is lacking to show that the work produced the hernia." The decedent Rivard had worked for the defendant as a rough rounder for several years although suffering from a scrotal...

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