Flannagan v. Prosper Shevenell & Son, Inc.
| Decision Date | 05 October 1926 |
| Citation | 135 A. 24 |
| Court | New Hampshire Supreme Court |
| Parties | FLANNAGAN v. PROSPER SHEVENELL & SON, Inc. |
Transferred from Superior Court, Strafford County; Sawyer, Judge.
Petition under Workmen's Compensation Act by Emmet Flannagan, by next friend, against Prosper Shevenell & Son, Inc. Verdict for plaintiff, who excepted to certain findings and rulings, claiming verdict was inadequate. Transferred. Exceptions overruled.
Dennis McDonough, of Dover, for plaintiff.
Lucier & Lucier, of Nashua, for defendant.
ALLEN, J. Three of the exceptions are taken to findings on the ground that there was no evidence to support them. The record shows that the findings were reasonably warranted as inferences from the evidence.
One exception relates to findings inconsistent with the averments of the petition, on the ground that the defendant, not filing an answer, admitted the averments, which were therefore to be taken pro confesso in accordance with rule 117 of the superior court. The superior court may suspend a general rule in a particular case. Petition of Rindge, 54 N. H. 106, 108; Hutchinson v. Railway, 73 N. H. 271, 283, 60 A. 1011; Moses v. Craig, 77 N. H. 586, 587, 95 A. 148. Furthermore, the hearing on the petition generally and of all matters in issue without objection from the plaintiff must be found to constitute a waiver of any rights under the rule.
Another exception is to the court's action in finding further facts in its amended decree upon a motion to set aside the original decree. The correction of an error in the original decree was the only modification of it. Since the motion to set aside the decree was based on a claim of errors, it is not perceived how their correction, so far as they are found, is not within the court's province. The motion necessarily called for such correction as within its scope. The error did not affect the other findings, or the general verdict, except as it was corrected in connection with the correction of the error, and there was therefore no right to a new trial generally. West v. Railroad, 81 N. H. 522, 533, 534, 129 A. 768, 42 A. L. R 176.
The exception to the court's refusal to place on the defendant the burden of showing that a disability proved would not continue for the statutory limit of time is also overruled. The act contains the provision that on a petition the judgment for the plaintiff "shall be for a lump sum equal to the amount of payments then due and prospectively due" under the act. Laws...
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Hall v. Merrimack Mut. Fire Ins. Co.
...v. Foster, 42 N.H. 165, 178, 179; Sanborn v. Boston & M. Railroad, 76 N.H. 65, 66, 79 A. 642, and cases cited: Flannagan v. Prosper Shevenell & Son, 82 N.H. 403, 135 A. 24. The defendants' exception to the granting of the plaintiff's motion for limitation of issues at the second trial of th......
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Hatch v. Hillsgrove
...or as upon the general issue in an action at law (Hutchinson v. Manchester St. Ry., 73 N. H. 271, 283, 60 A. 1011, Flannagan v. Shevenell, 82 N. H. 403, 135 A. 24), and the facts proved in place of the facts alleged afforded the basis for the court's conclusions (Dudley v. Eastman, 70 N. H.......
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Armstrong v. Lake Tarleton Hotel Corp.
...5, 8, 148 A.2d 655. This language places the burden on the plaintiff to prove the duration of her disability. Flannagan v. Prosper Shevenell & Son, 82 N.H. 403, 404, 135 A. 24. Even though failure of the defendant to seek review of their agreement by petition under the act may have been pri......