Remick v. J. Spaulding & Sons Co, Inc.

• Decision Date: 05 January 1926
• Parties: REMICK v. J. SPAULDING & SONS CO, Inc.
• Court: New Hampshire Supreme Court

131 A. 608

REMICK

v. J. SPAULDING & SONS CO, Inc.

Supreme Court of New Hampshire. Strafford.

Jan. 5, 1926.

Transferred from Superior Court, Strafford County; Burque, Judge.

Action by Vena Sevigny Remick against J. Spaulding & Sons Company, Inc. Motion for nonsuit and motion to set aside verdict were denied, and defendant excepts. Exceptions overruled.

Case, for negligence. The action was originally brought by Vena Sevigny, who has since married, against J. Spaulding & Sons Company, a copartnership, and is reported in 81 N. H. 311, 125 A. 262. During the second trial it appeared that the plaintiff, when she received her injury, was in the employ of J. Spaulding & Sons Co., Inc., a corporation. The plaintiff thereupon moved to amend the writ by substituting the corporation for the partnership as defendant. This motion was granted subject to exception. Later, counsel who had represented the defendant in the former trial, but who were actually employed by the liability insurance company which insured the corporation, entered a general appearance for the corporation, and proceeded with a "general defense under protest." Trial by jury and verdict for the plaintiff. The defendant's motion for a nonsuit was denied subject to exception. The defendant also excepted to the denial of its motion to set aside the verdict. A more explicit statement of the facts and exceptions is given in the opinion. Transferred by Burque, J.

Demond, Woodworth, Sulloway & Rogers and Win. N. Rogers, all of Concord, for plaintiff.

Alvin J. Lucier, of Nashua, Felker & Gunnison, of Rochester, George T. Hughes, of Dover, Stanley M. Burns, of Whitefield, and S. D. Felker, of Rochester, for defendant.

MARBLE J. The defendant seeks to distinguish the facts disclosed by the present record from those reported on the former transfer, contending that there is now no evidence that the plaintiff would have incurred any danger in stopping the machine on which she was working; that she knew she had the choice of a safe or dangerous method of tightening the screws, and deliberately chose to perform that task while the machinery was in motion. In point of fact, the record reveals abundant evidence that dangers were involved in stopping the machine. To do this it was necessary to throw the belt from the fixed to the loose pulley. The belt was not equipped with a shipper and had to be shifted by means of a screwdriver, a shoe-counter, or by hand. The plaintiff herself testified that the screwdriver had been knocked from her grasp when she had used it for that purpose, that there were hooks in the belt which might cut her if she shifted it by hand, and that it was difficult and hazardous to use the small counters which were alone available at the time of the accident. In this and in all other respects the evidence is essentially the same as that of the former trial. It follows that the court did not err in denying the defendant's motion for a nonsuit on the merits of the case. Haakensen v. Company, 77 N. H. 588, 87 A. 250.

The plaintiff was originally employed by the Spaulding partnership. At the time of the accident the partnership had been dissolved and the business was being conducted by the defendant corporation. This fact did not appear until the beginning of the second trial, when the information was elicited by the court from counsel who represented the Spaulding interests as distinct from those of the liability insurance company. An amendment was suggested, but the plaintiff objected to its allowance until the facts could be more definitely determined. It was then decided to go on with the trial pending inquiry at the defendant's office. After this inquiry had been made, the plaintiff moved "to amend the writ by having the defendant appear as J. Spaulding & Sons Co., Inc." The court did not rule upon this motion at once, but waited for defendant's counsel to communicate with the insurance company for instructions. In the meantime the trial continued. At the conclusion of the plaintiff's evidence on the merits and after the defendant had introduced evidence relating to the organization of the defendant corporation, the amendment was allowed subject to exception. Thereupon counsel entered a special appearance for J. Spaulding & Sons Company, Inc., and moved for a continuance. This motion was denied, and the defendant excepted.

A general appearance was then entered as follows:

"Counsel of record for J. Spaulding & Sons Company, the former defendant in this case, having appeared specially and moved for continuance on the ground of lack of service to J. Spaulding & Sons Company, Inc., now made a party to the record by order of court, reserving to the said new defendant all rights under said motion, appear in defense generally of said defendant by reason of the court's order Cat trial shall proceed against said J. Spaulding & Sons Company, Inc., without any further notice, and for the purpose of defending as far as possible the rights of said J. Spaulding & Sons Company, Inc., with a declaration that as the case now stands a great deal of prejudicial matter has...