LaBonte v. National Gypsum Co., 5952

• Decision Date: 28 December 1973
• Docket Number: No. 5952,5952
• Parties: Dorothy LaBONTE v. NATIONAL GYPSUM COMPANY. a.
• Court: New Hampshire Supreme Court

Page 403

313 A.2d 403

113 N.H. 678

Dorothy LaBONTE v. NATIONAL GYPSUM COMPANY.

No. 5952a.

Supreme Court of New Hampshire.

Dec. 28, 1973.

Shaines, Madrigan & McEachern, Portsmouth (Duncan A. McEachern, Portsmouth, orally), for plaintiff.

Calderwood & Ouellette and Dennis L. Hallisey, Dover, for defendant.

GRIMES, Justice.

This is an action to recover for loss of consortium (LaBonte v. Nat'l Gypsum Co., 110 N.H. 314, 269 A.2d 634 (1970)) arising out of an injury to plaintiff's husband, William, when he was intentionally struck by a fellow employee while in the employ of the defendant. Both plaintiff and her husband also sued Spinney, the fellow employee, and the three cases were tried together by jury, resulting in verdicts for plaintiff in the amount of $20,000 against both defendants and for her husband in the amount of $45,000 against Spinney. The questions of law raised by defendant company's exceptions, which include the sufficiency of the evidence, the fairness of the trial and the excessiveness of the verdict, were transferred by Morris, J.

William LaBonte was employed by the defendant as a janitor from 1963 to 1966 when there was a general lay-off. He was rehired in June of 1966 to load trucks, and after a few months, 'bid' on a job as dust collector and obtained it. There are three shifts, each having four men, in this particular mill. One of the other jobs on each shift was that of Raymond Mill operator. Men working on different shifts had very little contact with one another. At some time William became acquainted with John Spinney, who was then a Raymond Mill operator. Friction developed between them.

The jury could find the following facts: In March of 1967, LaBonte bid on and obtained a job as Raymond Mill operator. He did this because of higher pay and also because if he had the same job as Spinney he would never have to work on the same shift with him as they would be doing the same job. Spinney, however, bid on the dust collector job left vacant by LaBonte and after obtaining it, was transferred somehow to the same shift as LaBonte. After thirty days, during which Spinney harassed him, LaBonte's request for his old job back on a different shift was granted. Spinney then obtained the Raymond Mill job vacated by LaBonte and the two men worked on different shifts for more than a year until June 13, 1968. On that day, Spinney with permission of Buzzell's foreman substituted for Buzzell, the Raymond Mill man on LaBonte's shift, so Buzzell could attend his daughter's graduation. This put Spinney and LaBonte on the same shift. At supper time, LaBonte went into Mr. Thomas' office to eat as he had previously been given permission to do to avoid Spinney, but Spinney came to the door and made 'cow calls'. After finishing his supper, LaBonte went to discard his rubbish and Spinney appeared behind him and struck him on the side of the neck, causing him to fall down over a saw used to cut steel. The resulting injury was the basis of Mrs. LaBonte's claim for loss of consortium.

There was evidence that it was generally known that there was friction between the two men. Thomas, the Mill superintendent, knew of it, warned LaBonte that Spinney was after him and to be careful, and at one time unsuccessfully tried to get them to 'bury the hatchet'. Coventry, the plant manager, knew of it and allowed LaBonte to go back to his old job to get on a different shift than Spinney. He testified that he gave oral orders to Thomas to keep them on different shifts to the 'extent of his ability' but no written orders were given. Thomas denied he received any orders.

Evidence of Spinney's antagonism included evidence that he kicked LaBonte in the leg when they were in the locker room, shoveled stucco on him from the floor above during the previous period they were on the same shift, and that during the same period, LaBonte's machine stopped on several occasions, which he attributed to Spinney.

It is on this evidence that plaintiff claims that defendant breached its duty which was stated in the charge to the jury to be 'to use reasonable care to furnish a reasonably safe place' for William to work. The evidence supports the finding of liability against the defendant. The jury could find that no order to keep the men separated was given although the defendant through its agents should have anticipated injury to LaBonte at the hands of Spinney if they were on the same shift. The defendant was findably negligent in retaining Spinney or in not establishing, giving notice of, and enforcing a rule that the two men not be allowed to work on the same shift. Restatement (Second) of Agency § 213 (1958); Tatum v. Wabash R. Co., 412 Ill. 568, 107 N.E.2d 735 (1952).

Defendant contends that it did not receive a fair trial because of the introduction of evidence of the bodily injury to William since Dorothy was entitled to recover only for the damage done to her through loss...