Lizotte v. Nashua Mfg. Co.

• Decision Date: 03 April 1917
• Citation: 100 A. 757,78 N.H. 354
• Parties: LIZOTTE v. NASHUA MFG. CO.
• Court: New Hampshire Supreme Court

100 A. 757

78 N.H. 354

LIZOTTE

v. NASHUA MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

April 3, 1917.

While Employers' Liability Act, being a remedial statute, should be liberally construed, it cannot be given a meaning plainly repugnant to its terms.

Young, J., dissents.

Transferred from Superior Court, Hillsborough County; Peaslee, Judge.

"Case by Alphonse Lizotte against the Nashua Manufacturing Company for personal injuries under the Employers' Liability Act. Trial by jury and verdict for the plaintiff. At the close of the plaintiff's evidence, the defendant moved for a nonsuit, on the ground that a cause of action under the act had not been shown. The nonsuit was denied, and the defendant excepted. Transferred from the superior court. Exception sustained, verdict set aside, and judgment for defendant.

Doyle & Lucier, of Nashua, for plaintiff. E. C. Stone, of Boston, Mass., Albert Terrien, of Nashua, and Branch & Branch, of Manchester (Frederick W. Branch, of Manchester, orally), for defendant.

PLUMMER, J. Section 1 of chapter 163 of the Laws of 1911, so far as applicable to this case, is as follows:

"This act shall apply only to workmen engaged in manual or mechanical labor in the employments described in this section, which, from the nature, conditions or means of prosecution of such work, are dangerous to the life and limb of workmen engaged therein, because in them the risks of employment and the danger of injury caused by fellow servants are great and difficult to avoid. * * * (b) Work in any shop, mill, factory or other place on, in connection with or in proximity to any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power in which shop, mill, factory or other place five or more persons are engaged in manual or mechanical labor. * * * As to each of said employments it is deemed necessary to establish a new system of compensation for accidents to workmen."

Section 2 relieves workmen engaged in any of the employments described in section 1 from the assumption of risks incident to their employment, and permits them to maintain actions on account of personal injuries by accidents arising out of and in the course of their employment, caused by the negligence of fellow servants.

Previous to this statute, workmen assumed all the dangers of their employment which they knew about, or ought to have known about; and they could not maintain actions for accidents caused by the negligence of fellow servants. The application of these rules of law under modern industrial conditions subjected workmen to great hardships, and it was one of the purposes of the Legislature to relieve employés from the burdens imposed upon them by the assumption of risk and fellow-servant doctrine, by devising a new scheme of compensation for accidents happening in certain dangerous employments enumerated in section 1.

The plaintiff seeks to maintain his action under that portion of section 1 above quoted. He was employed as a truckman in the defendants' one story storehouse, handling and transporting boxes of finished cloth ready for shipment on a hand truck about the storehouse, and onto the loading platform. At no time did his work take him to any part of the mill, nor was he required to do any other work in any other part of the defendants' plant. There was no powerdriven machinery or hoisting apparatus in the storehouse, which was situated apart from the factory buildings where the manufacturing was done, but it was within the same inclosure as the other buildings of the company, and there were some 50 men working therein at the time of the accident. In order for the plaintiff to recover under this statute, his work must have been in the mill, and, further, it must have been performed "on, in connection with, or in proximity to hoisting apparatus, or machinery propelled or operated by steam or other mechanical power."

Under the decision in Boody v. Company, 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280, it might well be held that the plaintiff was working in a mill. In that case the court said:

"The word 'mill' may be used as meaning a building in which manufacturing is carried on. It is, however, often used as meaning a manufacturing establishment, and when used in this sense it includes all that is usually intended by the plant of a manufacturing concern; that is, it includes not only the buildings in which the work is done, but everything appurtenant to them. * * * As there is nothing to rebut this presumption, it must be held that 'mill,' as used in section 1, includes, not only the building in which the defendants' business is carried on, but their dam, flume, yard, and the ways they provide for the use of their employés."

This interpretation of the statute applied to the present case would constitute the defendants' storehouse, where the plaintiff was employed, a part of the...