Perreault v. Allen Oil Co.

• Decision Date: 07 May 1935
• Citation: 179 A. 365
• Parties: PERREAULT v. ALLEN OIL CO.
• Court: New Hampshire Supreme Court

179 A. 365

PERREAULT

v. ALLEN OIL CO.

Supreme Court of New Hampshire. Hillsborough.

May 7, 1935.

[Copyrighted material omitted.]

Exceptions from Superior Court, Hillsborough County; Sawyer, Judge.

Action on the case by Alphonse Perreault against the Allen Oil Company. Verdict for plaintiff, and defendant brings exceptions.

Judgment on the verdict.

Case, at common law, to recover for personal injuries sustained by the plaintiff while in the defendant's employ. Trial by jury and verdict for the plaintiff. The original action was in the form of a petition for compensation under P. L. c. 178. The allegations of the petition being insufficient to entitle the plaintiff to relief thereunder, the presiding justice suggested a further investigation of the facts. After such investigation the plaintiff moved to amend his petition by substituting therefor a common-law declaration for negligence. There was a hearing on this motion, at the conclusion of which the court "directed that the declaration be annexed to a writ and substituted for the petition because the plaintiff's cause of action did not bring his case within the benefits of chapter 178." The defendant excepted.

At the hearing on the motion the defendant produced a document signed by the plaintiff purporting to be a release of all claims arising out of the accident in question, the expressed consideration being "One dollar and benefits of Compensation Act." This release was obtained by the insurance company which insured the defendant against liability to its employees. Payments were made to the plaintiff for a time and then discontinued on the ground that the plaintiff was not procuring adequate medical treatment.

The presiding justice did not pass upon the validity of the release, but left that question open for the determination of the jury in the trial of the action at law. The defendant then filed an answer alleging that the plaintiff had accepted compensation and released the defendant from all liability, and that he had "acted fraudulently in bringing an action at law against his employer for the same injury." Though granted an opportunity to litigate these matters, the defendant declined to do so. Consequently the only questions submitted to the jury on the issue of liability were those pertaining to the law of master and servant.

The defendant excepted to the denial of its motions for a nonsuit and directed verdict, to the refusal of the court to declare a mistrial, to the admission of certain evidence, and to the denial of certain requests for instructions. The facts are stated in the opinion. Transferred by Sawyer, C. J.

Arthur B. Hayden and Osgood & Osgood, all of Manchester, for plaintiff.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for defendant.

MARBLE, Justice.

The court found on evidence informally presented that the facts did not bring the case within the provisions of the Workmen's Compensation Act. The evidence was sufficient to warrant this conclusion. Since the defendant participated in the proceedings and did not object to the procedure adopted, it cannot now complain of the method by which the facts were proved. Vidal v. Errol, 86 N. H. 585, 172 A. 437; Morin v. Travelers' Ins. Co., 85 N. H. 471, 472, 160 A. 482, and cases cited.

This does not dispose of the matter, however, since, even though the statute did not apply, the parties had a right to settle their differences on the basis of the benefits conferred by the act. The validity of the release was properly determinable in the trial of the action at law (Genest v. Odell Mfg. Co, 75 N. H. 365, 367, 74 A. 593), and by electing not to try that issue the defendant waived the alleged defense.

The accident occurred on June 21, 1930, at the defendant's filling station in Manchester. The plaintiff was helping to hang a sign, fifteen feet long and three feet wide. One end of the sign was to be attached to the defendant's garage, the other to a post. The post was set in a hole thirty-two inches deep and held in place by loose stones. It was supported by two braces made of boards an inch thick and three inches wide nailed to a picket fence. The plaintiff dug the posthole and filled it in under the direction of one Giroux, who was the president, treasurer, and manager of the defendant company.

When the post had been erected, one end of the sign was raised and placed on a block nailed to the side of the garage. Ladders were then placed on opposite sides of the post, and two workmen, taking hold of the sign, gradually raised it as they mounted the ladders. The plaintiff and Giroux, standing on the ground, helped in the lifting. After the sign had been raised to a point higher than their heads, each took a stick and placed it underneath the sign to steady it and to guide it. The plaintiff acted under express orders from Giroux, in whom he "had confidence."

In the meantime the post against which the ladders had been placed began to tip. This caused one of the workmen to release his hold, and the sign fell on the plaintiff. The workman described the accident as follows: "I took the sign, went up the ladder. When we got pretty near to the top, to brace myself I took hold of the post in order to get a better lift on the sign. * * * The ladder slipped a little and the post gave way. * * * When I thought the post was going, I dropped everything to save myself. * * * I let go of the sign and I jumped and landed on the picket fence."

The plaintiff's evidence tended to prove that the method of erecting the sign was not a reasonably safe one in view of the unstable installation of the post; that the posthole was much too shallow and that it should have been filled with earth as well as rocks and then tamped down; and, further, that the braces were entirely inadequate both in structure and location to withstand the uneven weight applied to the top of the post by the ladders and men. "There was evidence from which it could be found that the accident would not have happened but for the defendant's failure in one or more of these particulars. Whether such failure was a proximate cause of the plaintiff's injury was a question of fact for the jury." Dervin v. Amoskeag Mfg. Co., 81 N. H. 108, 111, 112, 122 A. 353, 355, and cases cited.

It could also be found that the plaintiff did not assume the risk. His occupation was that of a helper "on any kind of odd jobs and in the woods." He thought the posthole was deep enough. After digging it he "went to Giroux and showed him the hole" and he "said it was all right." When the post had been set and braced, the plaintiff believed it was secure, even though he knew "that men were going to lean up against it with ladders." Since he was not a carpenter and "never did any carpenter work," he was not chargeable, as a matter of law, with knowledge that the braces were inadequate. He was entitled to presume that the defendant had furnished protection against a danger likely to occur (Maltais v. Concord, 86 N. H. 211, 213, 166 A. 267) and that the work he was asked to perform was reasonably safe (Camire v. Laconia Car Co., 79 N. H. 531, 533, 111 A. 340).

The fact that the plaintiff recognized the possibility that the sign might be dropped accidentally did not mean that he was also aware that it might be dropped because the post was improperly supported, and "unless a servant's actual or constructive knowledge of those factors which enter into his injury is substantially complete, it cannot be said that he assumed the risk." Kruger v. Exeter Mfg. Co., 84 N. H. 290, 295, 149 A. 872, 875. See, also, Vidal v. Errol, 86 N. H. 1,7,162 A. 232; Goldstein v. United Amusement Corporation, 86 N. H. 402, 403, 169 A. 587.

The suggestion that "Perreault's own testimony conclusively convicts him of failure to use reasonable care" is entirely without merit. The evidence warranted a finding that the plaintiff did precisely what he was told to do, relying on Giroux' superior knowledge and ignorant of the hazard occasioned by the unstable post. The issue of contributory negligence was for the jury. Weeks v. Cushman-Rankin Co., 78 N. H. 26, 30, 95 A. 658; Roussel v. Nashua Mfg. Co., 80 N. H. 254, 256, 116 A. 441; Nichols v. Moulton, 82 N. H. 110, 111, 130 A. 28; Kruger v. Exeter Mfg. Co., 84 N. H. 290, 298, 149 A. 872; Maltais v. Concord, 86 N. H. 211, 216, 166 A. 267. It follows that the court did not err in denying the motions for a nonsuit and directed verdict.

A construction foreman, called by the plaintiff as an expert witness, examined the post in question at the time of the trial and testified to the size of the nail holes at the point where the braces had evidently been affixed. The defendant excepted to the admission of this evidence unless it could be proved "that these holes were made at the time" of the accident. The exception is unavailing, since there was abundant evidence from which this fact could be inferred. There were no braces on the post when the witness examined it; it was the same post which the plaintiff had helped to set; the holes were exactly where the plaintiff's testimony indicated the braces had been...