Aldrich v. Charles Beauregard & Sons, Inc.

• Decision Date: 24 April 1964
• Citation: 105 N.H. 330,200 A.2d 14
• Parties: Louise A. ALDRICH v. CHARLES BEAUREGARD & SONS, INC.
• Court: New Hampshire Supreme Court

Page 14

200 A.2d 14

105 N.H. 330

Louise A. ALDRICH v. CHARLES BEAUREGARD & SONS, INC.

Supreme Court of New Hampshire.

Argued March 3, 1964.

Decided April 24, 1964.

Faulkner, Plaut, Hanna & Zimmerman and John J. Zimmerman, Keene, for plaintiff.

Wiggin, Nourie, sundeen, Nassikas & Pingree, and Dort S. Bigg, Jr., Manchester, for defendant.

BLANDIN, Justice.

The present action is one of fifteen cases pending in the Cheshire County Superior Court against the defendant, arising out of a typhoid fever epidemic in the Keene area in the fall of 1959. A motion to dismiss was filed in each case. Counsel have agreed that this action may be decided upon the pleadings and incorporated documents and that our decision shall be decisive of all the cases. The issue is whether, as a matter of law, the motion to dismiss should be granted. In determining this, we treat all facts properly pleaded by the plaintiff and the reasonable inferences therefrom as true and construe them most favorably to her. Cote v. Litawa, 96 N.H. 174, 175, 71 A.2d 792, 18 A.L.R.2d 216; Bell v. Pike, 53 N.H. 473, 475. If the plaintiff is entitled to judgment upon any state of facts findable under the pleadings, the present motion to dismiss must be denied. Nashua Iron &amp Steel Company v. Worcester & N. R. Railroad, 62 N.H. 159, 161.

During the period in question, the defendant was engaged in the lumber business and had a contract with the City of Keene to cut and remove certain timber belonging to it and located in the general vicinity of its water supply. While this operation was in progress, the plaintiff contracted typhoid fever. She originally brought suit against the City, alleging a breach of warranty with respect to the fitness of the water for human consumption and claiming damages in the amount of $10,000. This action was begun by a writ dated May 31, 1960. The suit was founded on a breach of warranty and the declaration alleged in substance that the City was engaged in the business of selling and distributing water to the general public, to whom, including the plaintiff, it represented that the water was free from disease and fit to drink, knowing that the plaintiff would drink it. That relying upon the defendant's warranties and representations that the water was pure, the plaintiff drank it; that the water was filled with typhoid germs and not fit to drink, which fact the defendant knew or should have known; that the plaintiff did not know of any impurities in the water; that she drank it during the months of October and November, 1959, contracted typhoid fever, 'was made violently ill and suffered great pain and anguish and incurred substantial medical and hospital expenses, was unable to work for a considerable period of time and will, in the future, suffer great pain and anguish, all to the damage of the plaintiff as she says in the sum of ten thousand dollars.'

On June 28, 1960, an agreement for judgment was filed as follows:

'Judgment for the plaintiff in the amount of $4,516.83. No costs. It is agreed that this is a judgment against these defendants only. The plaintiff expressly reserves her rights to proceed against any other person, organization or corporation. This judgment is not to be considered as a release of any other person, organization or corporation that is or may be involved in this matter, and is not considered as full compensation to the plaintiff for the damages she has suffered.'

On June 29 the next day, a covenant not to sue the City and the North Swanzey Water & Fire Precinct was executed by the plaintiff. This covenant provided as follows:

'For the consideration of four thousand five hundred sixteen and 83/100 dollars ($4,516.83), the receipt and sufficiency whereof is hereby acknowledged, the undersigned does hereby covenant and undertake with the City Keene, New Hampshire, * * * and the North Swanzey Water & Fire Precinct, * * *, their successors and assigns, to forever refrain and esist from instituting or asserting against them any claim, demand, action or suit of whatsoever kind or nature, either directly or indirectly, for injuries or damage, to person or property, resulting or to result from typhoid fever contracted by Louise A. Aldrich in or about November, 1959, at or near Keene and Swanzey, New Hampshire.

'It is understood that the said City of Keene and the North Swanzey Water & Fire Precinct expressly deny any negligence on their part causing or contributing to said typhoid fever and any liability therefor, and that this agreement is entered into for the purpose of avoiding litigation and shall not be construed as an admission of liability on their part, and is a compromise settlement only, and that the undersigned hereby expressly reserves the right to sue and other person or persons or corporations against whom she may have or assert and claim on account of damages arising out of the above described typhoid fever.

'It is further expressly understood and agreed that as against the undersigned, her heirs, executors, administrators and assigns, this instrument may be pleaded as a defense in bar or abatement of any action of any kind whatsoever, brought, instituted or taken by or on behalf of the undersigned on account of said supposed claim or claims against said City of Keene and the North Swanzey Water & Fire Precinct.'

On the same day, the plaintiff executed an agreement with the City and the Water Precinct, which provided thus:

'In further consideration of the amount of $4,516.83 set forth in a separate covenant not to sue which the undersigned have executed and delivered to the City of Keene and the North Swanzey Water & Fire Precinct, the undersigned do, for ourselves, our heirs, executors, administrators, successors and assigns, hereby sell, assign and transfer unto the City of Keene and the North Swanzey Water & Fire Precinct, their successors and assigns, and to their own proper use and benefit, any and all sums of money due or owing to the undersigned, or to either of us, and of all claims, demands and causes of action of any kind whatsoever, which either or both have had, now have, or may in the future have against any person, firm, or corporation whatsoever by reason of Louise A. Aldrich having contracted typhoid fever on or about November, 1959, and the undersigned hereby irrevocably make, constitute and appoint the said City of Keene and North Swanzey Water & Fire Precinct and their successors and assigns, our true and lawful attorney and attorneys, with full power of substitution and revocation, for us and in our names, places or steads or otherwise, but for the sole use of the City of Keene and North Swanzey _____ Fire Precinct, as their interests may appear, and their successors and assigns, to ask, demand, and sue for, in their name and right, or in the name and right of either of them, to collect, receive, compound and give acquittance for our claim or claims, or the claim or claims of either of us, or any part thereof, against any person whomsoever.'

Subsequently, by writ dated December 8, 1960, suit was brought by the City in the name of Mrs. Aldrich against the present defendant, with an ad damnum of $50,000. The declaration alleges in substance that 'in a plea of the case,' the defendant executed a contract with the City of Keene pursuant to which he entered upon the land owned by the City for the purpose of cutting and removing timber therefrom; that the timber operations commenced prior to October, 1959, and continued through that month; that the defendant 'carelessly, recklessly and negligently' permitted its agents and employees to construct and live in a camp located on the premises; that the defendant knew or should have known that the camp was within the water shed area which was the source of the water supply for the City and others, including the plaintiff; that the defendant knew or should have known that the camp was not equipped with any toilet or other sanitary facilities for the proper disposal of human fecal or other waste matter; that the defendant also knew or should have known that the failure to properly dispose of fecal and other waste matter constituted a danger to the life and health of the consuming public, of which the plaintiff was one; that one of the employees of the defendant was, in October, 1959, infected with typhoid fever and was a so-called typhoid carrier; that he and others, during October, 1959, while living in the camp and water shed area, defecated in the open area surrounding the camp so that the fecal matter containing typhoid germs was washed into the water system and were ingested by the plaintiff and others; that as a result of such 'ingestion', which was caused by 'the carelessness, recklessness and negligence of the defendant', the plaintiff contracted typhoid fever, 'was hospitalized for many days and may in the future be hospitalized, was confined at home for many days under the care of a nurse, suffered great pain and will in the future suffer great pain, all to the damage of the plaintiff' in the sum of $50,000.

Special appearances were duly entered, and on July 7, 1961, a motion to dismiss was filed, alleging the following reasons for the dismissal:

'(1) The plaintiff brought suit against the City of Keene alleging in substance that the water which she purchased from the City * * * was not wholesome nor fit for human consumption.

'(2) On June 28, 1960, judgment was entered by agreement between Louise A. Aldrich and the City of Keene in the sum of $4,516.83. The agreement reserves a right to the plaintiff to proceed against any other person.

'(3) On June 29, 1960, Louise A. Aldrich signed a covenant in the sum of $4,516.83. This covenant is in the usual form and the City of Keene denies any negligence.

'(4) On June 29, 1960, Louise Aldrich signed a subrogation agreement purporting to assign to the City of Keene and the North Swanzey Water & Fire Precinct all claims against any other person by reason of ...