Bridgham v. Effingham

• Decision Date: 07 November 1933
• Citation: 168 A. 904
• Parties: BRIDGHAM v. EFFINGHAM.
• Court: New Hampshire Supreme Court

168 A. 904

BRIDGHAM

v. EFFINGHAM.

Supreme Court of New Hampshire. Carrol.

Nov. 7, 1933.

Transferred from Superior Court, Carrol County; Young, Judge.

Petition by George D. Bridgham for leave to file a claim against Effingham. Transferred on plaintiff's exceptions to ruling and order denying plaintiff's prayer and dismissing petition.

Exceptions sustained.

Petition under P. L. c. 89, § 10, for leave to file a claim. The defense was that the highway in question was state aided. The accident happened in July 1931.

In the superior court, Young, J., found the following facts:

The highway in question is not a state highway as defined in section 1 of chapter 84 of the Public Laws. As to whether it is a highway constructed or repaired in whole or in part by the state or by state aid, it appeared that this road had been selected by the selectmen of said town for the expenditure of joint fund money as provided in section 24 of said chapter; that in 1931 the selectmen of said town seasonably applied to the state highway commission for the right to expend the joint fund money available in that year upon said highway, stating in their application that the location set forth therein was continuous with that of the previous year; that at both ends of said road, that is, the Center Effingham end and at the South Effingham end, the highway had been improved for a considerable distance by the use of such joint fund money, and during 1931 some of it had been expended on the unimproved part nearest Center Effingham, but at the point where said accident occurred and for some distance in either direction none had been expended, either in 1931 or prior thereto, nor was the highway at that point under construction or being repaired at the time of the accident. It is fair to assume that up to the present time it has been the intention of the selectmen to continue the improvement and reconstruction of this road until the whole stretch between the termini mentioned has been completed.

The ruling was that: "Following the doctrine of Grace v. Town of Belmont, 78 N. H. 112, 97 A. 221, where a statute quite similar (section 6, c. 54, Laws of 1903) was construed —'The state having contributed to the work of construction and repairs upon this road in (numerous) places, the entire road is brought within the exemption, even though there are places upon the road to the improvement of which the state has not contributed'— the Court rules that the 1931 amendment bars recovery in this instance, and the plaintiff's prayer is denied and his petition dismissed."

Transferred upon the plaintiff's exceptions to the ruling and order.

Demond, Woodworth, Sulloway & Rogers, of Concord (Franklin Hollis, of Concord, orally), for plaintiff.

Conrad E. Snow, of Rochester, for defendant.

PEASLEE, Chief Justice.

The correct procedure upon a petition for leave to file a claim for injuries caused by a defective highway (P. L. c. 89, § 10) was stated in Owen v. Deny, 71 N. H. 405, 406, 52 A. 926. The petition is not ordinarily to be denied unless "it conclusively appears from the admitted facts or the allegations of the petition that the plaintiff has and can have no valid claim against the defendants." Later cases have followed this rule. Knight v. Town of Haverhill, 77 N. H. 487, 93 A. 663; Prichard v. Town of Boscawen, 78 N. H. 131, 97 A. 563; Rye v. Town of Durham, 79 N. H. 51, 105 A. 362; Watkins v. Railroad, 80 N. H. 468,119 A. 206.

In the present instance it is evident that the plaintiff presented a fairly sustainable argument for the soundness of his claim of liability. Neither admitted facts nor the allegations of the petition showed him to be Without right, as matter of law. Under such circumstances the petition should be granted. But apparently the parties went to a trial of the facts bearing upon the legal question of the responsibility of the town for the condition of the highway in question. No objection having been made to this procedure, and a finding of facts having been made the basis for a denial of the petition, the sufficiency of the findings to sustain the ruling of nonliability has been considered here.

The defense presented at the hearing in the superior court was that the highway had so far become state aided that the town was exempt from liability under Laws 1931, c. 122. The statute reads: "Towns shall not be liable for such damages happening upon state roads within their borders, nor upon highways within their borders which are constructed or repaired in whole or in part by the state or by state aid, while such construction is in process or such repairs are being made, nor thereafter."

While the facts stated by the presiding justice do not fully detail just what had or had not been done in the way of making the highway at the place of accident a state-aided road, enough appears to show that it, did not conclusively appear the locus was not still a town highway, subject to town control and with the accompanying liability for accidental injuries to travelers. i.

The fact that the selectmen "had selected" this road "for the expenditure of joint fund money" does not show that the whole road had been designated for state aid, even by the. town. Much less does it show the concurrent action of the town and the state highway commissioner, as required by the statute. P. L. e. 84, § 24. There is no finding that, the determination of the selectmen had even been communicated to the state authority. Apparently the applications for state aid were limited to the portions of the road such funds, would be sufficient to improve each year. The, application for state aid is an annual affair. The finding that the application made by the town in 1931 stated that "the location therein set forth was continuous with that of the previous year" quite clearly implies that the application related to a specific part of the road, and not to its entire length. There is no suggestion in the findings that the part so designated included the place of accident.

The finding that "it is fair to assume that up to the present time it has been the intention of the selectmen to continue the improvement and reconstruction of this road until the...