Fasekis v. J. J. Newbury Co.

• Decision Date: 04 December 1945
• Citation: 44 A.2d 817
• Parties: FASEKIS v. J. J. NEWBURY CO.
• Court: New Hampshire Supreme Court

44 A.2d 817

FASEKIS

v.J. J. NEWBURY CO.

Supreme Court of New Hampshire.

Dec. 4, 1945.

Exceptions from Superior Court, Hillsborough County; Lorimer, Chief Judge.

Action of case by Athena Fasekis against J. J. Newbury Company to recover for personal injuries alleged to have been sustained by plaintiff while employed in defendant's store. To review an order granting defendant's motion for a nonsuit on the opening statement of plaintiff's counsel, plaintiff brings an exception, and to review an order granting a new trial and sustaining plaintiff's objection to an amended declaration, defendant brings exceptions.

Plaintiff's exception overruled and judgment for defendant.

Case, to recover for personal injuries alleged to have been sustained by the plaintiff on September 15, 1941, while employed as a salesclerk in the defendant's department store in Manchester. At the conclusion of the opening statement of plaintiff's counsel to the jury, the defendant's motion for a nonsuit was granted subject to the plaintiff's exception. A summary of the opening statement follows:

The plaintiff was twenty-five years of age and had been employed by the defendant for about two years. She was working at the art goods counter when she received her injury. All counters in the defendant's store were rectangular in shape, and the salesgirls stood in the enclosures thus formed. The art goods counter was three feet high with a lip on each edge to prevent merchandise from slipping off. A rack for the display of goods was suspended by wires from the ceiling and came down to within five feet of the counter.

Just before the accident happened, a salesgirl came to the art goods counter and informed the plaintiff that one of the tablecloths on the display rack needed to be rearranged. It was one of the plaintiff's duties to see that her goods were properly displayed, and so, placing a stool ‘opposite the tablecloth,’ she stepped from the stool to the counter and readjusted the goods on the rack. She then ‘put one foot down there onto the stool’ (to quote the words of plaintiff's counsel) ‘and just as she removed the other foot from the counter, the stool slipped and went out from under her.’ The stool was approximately two feet high.

The plaintiff had never been told not to use the stool, nor had she been instructed ‘how to get up to arrange the display.’ While working at another counter she had used a box for that purpose. She had not ‘climbed on stools before.'

During the discussion of the defendant's motion for a nonsuit, plaintiff's counsel called to the Court's attention the fact that the lip on the counter ‘gave rise to a situation’ in which the plaintiff's weight ‘would be coming down on to the stool at an angle,’ and that the plaintiff ‘wasn't familiar’ with the effect that ‘stepping down from a counter to a stool’ in that manner might have.

After the nonsuit had been ordered and the plaintiff's bill of exceptions allowed and transferred to this Court, defendant's counsel moved the trial Court ‘to amend the transferred case in this action by including therein’ a statement to the effect that the defendant had accepted the provisions of the Employers' Liability and Workmen's Compensation Act and that this acceptance was in good standing on the date of the accident. A letter written by the Labor Commissioner certifying to these facts was offered in evidence. The Presiding Justice disposed of the motion as follows:

‘Plaintiff objects to an amendment of the case, or to reopening the case, for the purpose of proving that defendant accepted the provisions of the Workmen's Compensation Act. Defendant offered competent evidence that it had accepted the Act on the date of the alleged accident. Plaintiff objected, not to the form of the evidence, but to the materiality of the evidence, contending that it should only be admitted as part of the defendant's case at the trial, and that since that stage of the proceedings had not been reached when the Court ordered a nonsuit on the opening statement, it should not be admitted now. Plaintiff's objection is sustained. The Court was in error in granting a motion for nonsuit on the opening statement on the ground that the offer of proof outlined in the opening statement clearly demonstrated that plaintiff assumed the risk of the injury, when, at the time the opening statement was made, it did not appear that the defense of assumption of risk was available to defendant. The Court rules as a matter of law that it cannot grant defendant's motion to amend. Defendant's exception noted. The Court orders a new trial. Defendant's exception noted to these rulings.'

The defendant's bill of exceptions was allowed by Lorimer, C. J. As already indicated, the plaintiff's bill had been allowed previously.

McLane, Davis & Carleton and Robert P. Bingham, all of Manchester (Robert P. Bingham, of Manchester, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Louis E. Wyman, of Manchester, orally), for defendant.

MARBLE, Chief Justice.

In ordering a new trial on procedural grounds, the Presiding Justice acted on the assumption that proof of the defendant's acceptance of the provisions of the Employers' Liability and Workmen's Compensation Act (R.L. c. 216) was necessary before a proper ruling could be made upon the sufficiency of the opening statement. Whether, in view of the unquestioned authenticity of the Commissioner's certificate of acceptance, the Presiding Justice ought not to have found it ‘convenient, expedient and economical’ ( Gaudette v. McLaughlin, 88 N.H. 368, 370, 189 A. 872) to receive the certificate in evidence is a question which need not be discussed, for, in our opinion, proof of the defendant's acceptance of the provisions of the Act was unnecessary.

The only right which an employee has to claim immunity from the defense of assumption of risk is derived from chapter 216, and to correctly assert that right a plaintiff must either state in his declaration that his action is brought under the provisions of that chapter or allege facts which so indicate. See Boody v. K. & C. Manufacturing Co., 77 N.H. 208, 90 A. 859, L.R.A.1916A, 10, Ann.Cas.1914D, 1280; Wheeler v. Contoocook Mills Corporation, 77 N.H. 551, 94 A. 265; Bonnin v. Boston & Maine Railroad, 77 N.H. 559, 94 A. 196; Weeks v. Cushman-Rankin Co., 78 N.H. 26, 95 A. 658; Lizotte v. Nashua Mfg. Co., 78 N.H. 354, 100 A. 757; Tucker v. Lowe, 78 N.H. 610, 102 A. 376; Casey v. Frank Jones Brewing Co., 79 N.H. 42, 104 A. 454; La Point v. Monadnock Paper Mill, 79 N.H. 61, 104 A. 251; Crowther v. White Mountain Freezer Co., 79 N.H. 63, 104 A. 125; Tierney v. New England Granite Works, 79 N.H. 166, 106 A. 481; Watts v. Derry Shoe Co., 79 N.H. 299, 109 A. 837; Barber v. George R. Jones Shoe Co., 79 N.H. 311, 108 A. 690; Robinson v. New England Cable Co., 79 N.H. 398, 111 A. 269; Martel v. White Mills of New Hampshire, 79 N.H. 439, 111 A. 237; Gardner v. Commercial Machine Co., 79 N.H. 452, 111 A. 317; La Fontaine v. St. John, 92 N.H. 319, 30 A.2d 476.

The case of Spilene v. Salman Falls Mfg. Company, 79 N.H. 326, 108 A. 808, on which the plaintiff relies, cannot fairly be deemed an exception to the general rule, since the declaration in that case ends with these words, ‘whereby an action hath accrued to the...