Benoit v. Perkins

• Decision Date: 07 May 1918
• Citation: 104 A. 254
• Parties: BENOIT v. PERKINS et al.
• Court: New Hampshire Supreme Court

104 A. 254

BENOIT

v. PERKINS et al.

Supreme Court of New Hampshire. Coos.

May 7, 1918.

Young, J., dissenting.

Exceptions from Superior Court, Coos County; Chabmerlin, Judge.

Action by Hilda Benoit against Charles B. Perkins and others. Verdict for plaintiff, and defendants bring exceptions. Exceptions sustained in part; verdict set aside.

Case in the nature of deceit to recover damages for injuries received while employed as a companion of one Marie Bordet. The declaration alleged that the defendants were the agents, counselors, and next friends of one Marie Bordet; that she was of unsound mind; was subject to fits of insanity, in which she was liable to do injury to herself and others; that the defendants had assumed the care of her, and, knowing the fact of Mrs. Bordet's insanity, conspired together to keep knowledge of it from the plaintiff in order to induce her to enter Mrs. Bordet's employ; that in ignorance of Mrs. Bordet's condition the plaintiff did enter her employ, and because of the condition which the defendants concealed from her was injured. The case was tried upon the general issue before Chamberlin, J., and a jury, who found a verdict for the plaintiff. The defendants excepted to the denial of their motions for a nonsuit and a verdict, to the admission of evidence, to statements of plaintiff's counsel in argument, and to certain instructions given the jury.

The evidence tended to prove that Mrs. Bordet's husband had been employed at Wentworth Hall, a summer hotel in Jackson, for many years. He owned a cottage there, in which he and Mrs. Bordet spent at least one winter, though usually they lived in New York during that season. The defendant James N. Berry had also been employed for years as manager of Wentworth Hall, and lived there with his wife when the hotel was open. He also owned a cottage in Jackson, in which he lived at other times. In the fall of 1914 Mrs. Bordet's husband died, and Mr. and Mrs. Berry went to New York with Mrs. Bordet and her husband's body. Mrs. Bordet spent the winter in New York, but in May, 1915, came to Jackson, going to cottages kept by the other two defendants, Mr. and Miss Perkins. The mother of Mrs. Bordet had died the year previous, and her husband's will was imperfectly executed. From the loss of her husband and mother and impending financial trouble, Mrs. Bordet became despondent and depressed in mind, and while at the Perkins cottages developed fits of mental instability, in which she endeavored to commit suicide. Mr. and Miss Perkins were advised of her condition; that she was liable to repeat the attempts and needed institutional care. Neither of the defendants wished her to stop at their resorts during the summer, though there was no evidence she desired to do so. The defendants' evidence was that she wished to live at her own cottage and desired a companion. A Miss Trickey, who lived in Jackson, having learned this fact from a Mrs. Harriman, meeting Mrs. Benoit in Bartlett, where she lived, asked her if she knew of a good woman who would go to. Jackson and stay with Mrs. Bordet. Mrs. Benoit replied that she might like to go herself, and arranged to come to Jackson to see about taking the place. Upon two occasions she saw Mrs. Bordet at the Perkins cottages, and agreed with her upon the employment and its terms. Upon her first trip to Jackson she met Mr. Berry at the Jackson Falls house, where Miss Trickey lived, and had an interview with him. The defendants' evidence was that the interview was arranged for the purpose of informing the plaintiff of Mrs. Bordet's condition before she entered into any agreement with her, and that this condition was fully explained to her. The plaintiff denied that she was told of Mrs. Bordet's mental instability, suicidal tendencies, or attempts to kill herself. June 26, 1915, the plaintiff went to live with Mrs. Bordet at her cottage in Jackson. Nine days later, July 5th, Mrs. Bordet committed suicide by setting fire to her clothing, which she had previously saturated with alcohol. The plaintiff claimed injury from the shock of the tragedy and the physical exertions she was thereby called upon to make. The evidence was printed in full as an appendix. Further facts and the ground of the exceptions taken appear in the opinion.

Drew, Shurtleff, Morris & Oakes, of Lancaster (Geo. F. Morris, of Lancaster, orally), for plaintiff. Sullivan & Daley, of Berlin, and E. E. Hastings, of Fryeburg, Me. (E. Sullivan, of Berlin, orally), for defendants.

PARSONS, C. J. The gist of the plaintiff's complaint is that the defendants, knowing that Mrs. Bordet was mentally unbalanced with suicidal tendencies, induced or permitted her to enter Mrs. Bordet's employ without informing her of that fact. The defendants' answer before the jury was that they did tell the plaintiff all they knew. This issue was there tried, and this court has no jurisdiction to revise the finding of the jury, or to sot it aside as against the weight of the evidence. The only question here is whether there was any evidence in support of the conclusion reached by the jury. The plaintiff's statement that she was not told was some evidence; and, if a wrong result has been reached, the defendants have no remedy here.

The defendants contend, in support of their motion for a directed verdict, that upon the evidence their failure to inform the plaintiff was not a breach of any legal duty owed by them to her. If it be assumed that the defendants, knowing Mrs. Benoit was proposing to enter Mrs. Bordet's employ, were under no legal obligation to the plaintiff to act at all in the matter, to give her any information, still there was no error iff the denial of the motions for a nonsuit and a general verdict for the defendants. "Where one voluntarily undertakes to do a thing, whether that be by representation or by positive act, a duty is imposed upon the party making the representation or doing the act of exercising care." Conway Bank v. Pease, 76 N. H. 319, 324, 82 Atl. 1068; Pittsfield Co. v. Shoe Co., 71 N. H. 522, 533, 53 Atl. 807, 60 L. R. A. 116; Edwards v. Lamb, 69 N. H. 599, 45 Atl. 480, 50 L. R. A. 160; Hammond v. Hussey, 51 N. H. 40, 12 Am. Rep. 41. There was evidence that when Mrs. Benoit came to Jackson upon information of the opportunity, she was met at the Jackson Palls house by the defendant Mr. Berry, and had a conference with him as to the proposed employment. The defendants say and their evidence tended to prove that the meeting was arranged in order that Mrs. Benoit should be informed of Mrs. Bordet's condition before she negotiated with her as to the proposed service. The accounts of this interview differ in only one particular. Mr. Berry and Mrs. Berry say the plaintiff was told of Mrs. Bordet's suicidal tendencies and attempts. Mrs. Benoit says the contrary, and the jury have found with her. Assuming the defendants are correct in their contention that they were under no legal obligation to inform Mrs. Benoit as to Mrs. Bordet's condition, it could be found from the evidence that Mr. Berry at least undertook to give her such information as was necessary for her safety. Undertaking the task, he was bound to care in its execution, and liable if he carelessly omitted to inform her of an essential detail. A fortiori he is liable if, as could be found, he with intent to defraud concealed from her facts material to her safety, and because of her lack of information she acted to her subsequent injury.

As reported in the case, the motions for a nonsuit and verdict are general, in behalf of all the defendants collectively. Exceptions to such motions are overruled when it appears there was evidence which prevents the allowance of the motions as made. Moody v. Perley, 78 N. H. 17, 18, 95 Atl. 1047. The stenographer's minutes, printed as an appendix state that the motion for a directed verdict was "for the defendants individually and collectively." The exception was not so transferred, and no argument has been made of the evidence as applied to separate defendants. The question may be of no practical importance, and its consideration is postponed until asked for by the parties.

The ground upon which the denial of the motion for a verdict has been placed was recognized in the defendants' second request for instructions, which was:

"If you find the defendants undertook to disclose to the plaintiff, Mrs. Benoit, the mental condition of Mrs. Bordet, and that the defendants told the plaintiff the facts as they were, or as they, the defendants, believed them to be, then the defendants are not liable."

This instruction was given, and a verdict based thereon would be legally sound, and in any event irrevisable here; the law being stated as the defendants requested.

The fact that the case contained evidence from which could be found a breach of a duty assumed by at least one of the defendants requires the overruling of the contention that there was nothing for the jury. This conclusion is reached without considering whether upon other grounds the evidence would sustain a verdict against any or all of the defendants.

The exceptions to the instructions refused and given are next to be considered.

As the jury were told in the charge, the evidence did not disclose false statements made to the plaintiff as to Mrs. Bordet's condition, but there was some evidence that the plaintiff was not told of Mrs. Bordet's occasional mental instability and suicidal attempts. Fraud may consist in the intentional concealment of a material fact as well as in a false statement of a fact. Hanson v. Edgerly, 29 N. H. 343, 354; Page v. Parker, 43 N. H. 363, 367, 80 Am. Dec. 172. "At common law, a fraud may be committed by the omission to disclose a material fact under some circumstances." Stewart v. Emerson, 52 N. H. 301, 320. But the fraudulent concealment of known facts with intent to mislead, and which in fact does mislead, another to his damage does not constitute actionable...