Blaisdell v. Davis Paper Co.

• Decision Date: 01 July 1910
• Citation: 75 N.H. 497,77 A. 485
• Parties: BLAISDELL v. DAVIS PAPER CO.
• Court: New Hampshire Supreme Court

77 A. 485

75 N.H. 497

BLAISDELL

v. DAVIS PAPER CO.

Supreme Court of New Hampshire. Merrimack.

July 1, 1910.

Transferred from Superior Court, Merrimack County; Pike, Judge.

Action by George C. Blaisdell, administrator of Percy Libby, against the Davis Paper Company. There was a verdict for plaintiff and defendant excepted, and the cause was transferred from the Superior Court. Exceptions overruled.

Case to recover damages for causing the death of Percy Libby. The action is prosecuted by the statutory beneficiary, in the name of the administrator. Trial by jury (Stone, J., presiding), and verdict for the plaintiff. The defendant excepted to the denial of its motions for a nonsuit and the direction of a verdict in its favor on the grounds (1) that there was no evidence of its violation of any duty owed to Libby, and (2) that there was no evidence to support the plaintiff's replication of fraud in obtaining a release pleaded by the defendant. There was evidence tending to prove the facts hereinafter recited.

The defendant was engaged in blasting hardpan by the use of dynamite. The holes were fired in series by a battery, and there was a possibility that one would miss fire when the others did not. In case this happened, it might be ascertained by the fact that the wires leading to the charge would not be blown out, and perhaps also by an examination of the surface of the ground. It was likely that the surface would be considerably disturbed, and traces of the results might be obliterated by trampling over the loosened earth. After a series of holes were fired, the foreman and the workmen went back into the ditch together. The men did not observe that the foreman ever made any inspection, and they at once began removing the earth with pick and shovel. On Saturday before the accident, the foreman loaded and fired a series of holes and at once went away, leaving his assistant to do what the foreman usually did. The men continued to work until Wednesday, when Libby struck dynamite with his pick and an explosion resulted. This happened in the location of one of the holes of the Saturday series. Libby was not familiar with the use of dynamite and was free from fault. He was never instructed or warned as to the possibility of there being unexploded dynamite in the ground they were working upon. Libby was survived by a widow and by his father, C. M. Libby. The father represented the widow in the negotiations for a settlement. March 28, 1907, Blaisdell wrote to C. M. Libby, suggesting that the case be submitted to three arbitrators, one chosen by Libby. one by the defendant, and one by Blaisdell. He added that within a day or two the Supreme Court had "rendered a decision relating to just such matters, and it seems favorable to corporations," and "litigations are expensive, and it might be well to proceed with caution." April 8th Libby obtained an interview with Blaisdell and Henry Davis; the latter representing the defendant. Davis said the accident was caused by a blast fired by a fellow servant, contrary to orders, and offered $150 in settlement. Blaisdell suggested that of course the offer was not made as an admission of liability. Later in the interview Blaisdell repeated the suggestion?quot;shielded him again." At the close of the interview Blaisdell dismissed Libby and remained closeted with Davis. Libby had another interview with Davis a few days later and said they wished for substantial damages or nothing, and that if the offer was accepted he would inform Davis by the next Saturday. At this interview Davis repeated the version of the accident which he gave on the former occasion. Before either interview, the defendant had investigated the accident and determined that it resulted from a failure in the Saturday blast. After the last interview, Libby saw Blaisdell and informed him that all offers were to be submitted to Libby for consideration. May 2d Blaisdell wrote Libby that he was unable to find from any of the leading lawyers in the state anything on which to base litigation. About June 10th Libby wrote Blaisdell that, if he felt it his duty to settle for the sum offered, Libby would advance the sum and proceed with the case for the benefit of the widow. August 20th Blaisdell settled with Davis for $200. Davis telephoned to Concord and had the release drawn by his counsel, although in other cases growing out of the same accident he had drawn the releases himself. The administrator tried to induce the widow to sign some paper concerning the settlement the last of May and again on August 23d or 24th. She refused on each occasion, upon the ground that the offer was too small. Davis was acquainted with the beneficiary and passed her house frequently, but never mentioned the settlement to her. When Blaisdell's deposition was taken, he denied having written most of the things contained in his letters to Libby. His explanation of his statement about the opinion of the leading lawyers upon the case was that he consulted John Kimball, a layman, who volunteered to obtain the opinion of Harry G. Sargent and later reported to Blaisdell that Sargent thought there was no liability. Both Kimball and Sargent were dead when the deposition was taken. Blaisdell never made any investigation to learn the facts as to the cause of the accident.

Albin & Sawyer, for plaintiff.

Streeter, Hollis, Demond & Woodworth, for defendant.

PEASLEE, J. 1. It might be found from the evidence that the presence of dynamite at the place of the accident resulted from the failure to...