Roberts v. Hillsborough Mills

• Citation: 161 A. 29
• Parties: ROBERTS v. HILLSBOROUGH MILLS.
• Decision Date: 07 June 1932
• Court: Supreme Court of New Hampshire

161 A. 29

ROBERTS

v. HILLSBOROUGH MILLS.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1932.

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

Action by Harold Roberts, by his father and next friend, Richard Roberts, against the Hillsborough Mills. Verdict for plaintiff. Transferred to Supreme Court on defendant's exceptions.

Exceptions overruled.

Case for personal injuries sustained by the plaintiff while, in the defendant's employ. Trial by jury, and verdict for the plaintiff.

The defendant had accepted the provisions of the Workmen's Compensation Act. The injuries were suffered on April 17, 1929. In May and July following, Amy Roberts, as "mother and next friend" of the plaintiff, entered into agreements in his behalf for compensation under the act. The plaintiff received monthly payments thereunder by checks drawn to his order from May until December 10th following. On the dates of the accident and agreements Harold lived with and paid board to his mother and was under her control. For several months before and after the accident the father did not reside with his family. In April, 1930, the plaintiff by his father, as next friend, entered this action. The defendant pleaded the agreement for compensation in bar. The court ruled that the mother had no authority to bind the plaintiff by the compensation agreements, and the defendant excepted.

There was no disaffirmance of the agreements prior to the bringing of the action at law. The defendant moved to dismiss the suit because no tender had been made of the amount paid as compensation. The motion was denied, and the defendant excepted.

The negligence alleged was the failure to furnish a reasonably safe machine, to provide a reasonably safe work place, and to give proper instructions. Subject to the plaintiff's exceptions, the first two issues were withdrawn from the jury, and the case was submitted on the third. Exceptions were taken by the defendant to the denial of its motions for a nonsuit and directed verdict, to the allowance of argument, and to the admission of evidence. Transferred by Marble, J. The facts appear in the opinion.

Robert E. Earley and Robert J. Doyle, both of Nashua (Paul J. Doyle, of Nashua, orally), for plaintiff.

Lucier & Dowd, of Nashua (A. A. Lucier, of Nashua, orally), for defendant.

SNOW, J.

I. Any workman injured while in the employment of one who has accepted the Workmen's Compensation Act may elect to receive compensation thereunder or to bring an action at common law for negligence. By the terms of the statute an injured workman is barred from recovery in such an action by "accepting any compensation" under the act, by giving the prescribed notice, or by "beginning proceedings therefor in any manner." P. L. c. 178, § 11. The pursuit of either the statutory or common-law remedy releases the employer from liability under the other. Gordon v. Company, 83 N. H. 221, 222, 140 A. 704. The statute presupposes capacity in the actor to make an election of remedies. Davis v. Company, 82 N. H. 87, 88, 129 A. 729. Such an election requires the exercise of knowledge, judgment, and discretion of which the law presumes an infant incapable. There is nothing in the statute indicating any purpose to bestow upon minor workmen power to act sui juris. Moore v. Hoyt, 80 N. H. 168, 170, 171, 116 A. 29. The use of the general terms "workman" and "workmen" to designate the beneficiaries of the act carries by implication no enabling power to one incompetent to act in his own behalf. On the contrary, the power to petition the court for relief upon failure of the employer to make compensation under the act is expressly given to "the injured workman, or his guardian, if such be appointed. * * *" Section 25. Like power is given the guardian of "an injured workman" who "shall be mentally incompetent." Section 33. Not only by the absence of any enabling provision, but by implication from its express terms, the statute leaves workmen who are infants or non compos mentis to the enforcement of their remedies thereunder in the manner in which such rights are customarily asserted. It discloses no intention to trench upon the protection which the present day common law affords to the incompetent.

Moore v. Hoyt, supra; Stephens v. Duxbridge Iron Works, [1904] 2 K. B. 225, 229, 230.

Obviously decisions under workmen's compensation acts which expressly, or by necessary implication, bestow upon infant employees the status of adults, are not here pertinent. 14 A. L. R. 818; 33 A. L. R. 337; 49 A. L. R. 1435; 56 A. L. R. 887; 60 A. L. R. 847; 36 Harv. L. Rev. 892.

Ordinarily, there are only two recognized ways in which a minor may take binding action in the enforcement or discharge of his legal rights; namely, through a duly appointed guardian acting within his powers, or through his next friend by proceedings in court. Clarke v. Gilmanton, 12 N. H. 515, 517; Beliveau v. Amoskeag Mfg. Co., 68 N. H. 227, 40 A. 734, 44 L R. A. 167, 73 Am. St. Rep. 577; Strong v. Company, 82 N. H. 221, 222, 223, 131 A'. 688. Neither method having been employed, it was his legal right to repudiate the assumed election in his behalf. The ruling of the court that the mother had no authority to bind the plaintiff is sustained.

Neither the statute, nor the procedure applicable to minors, required any particular form of disaffirmance of the election purporting to have been executed in the plaintiff's behalf. The bringing of the action at law through his next friend was a sufficient repudiation thereof. See Eaton v. Hill, 50 N. H. 235, 241, 9 Am. Rep. 189; Stack v. Cavanaugh, 67 N. H. 149, 155, 30 A. 350.

The defendant, however, contends that, as the election was partially executed, there could be no rescission thereof except upon a "tender back" of the compensation received. This contention invokes the rule that a minor seeking to avoid an executed contract on the ground of his infancy must account for what he has received under it by restoring or paying the value of whatever remains in specie within his control and allowing for the benefit derived from whatever cannot be so restored. Hall v. Butterfield, 59 N. H. 354, 358, 47 Am. Rep. 209; Bartlett v. Bailey, 59 N. H. 408; Stack v. Cavanaugh, supra, 67 N. H. 155, 30 A. 350; Wooldridge v. Lavoie, 79 N. H. 21, 22, 104 A. 346. If the rule were otherwise applicable here, the defendant fails for want of proof. Under the rule, failure to restore is a prerequisite to the maintenance of a minor's action only under the conditions laid down. Of these the defendant had the burden of proof. It does not appear that any part of the moneys paid remained unspent in the plaintiff's possession or within his control at the date of the writ, and no presumption will be indulged to that effect. The principle of the rule invoked, however, is inapplicable here. Compensation when elected is paid by statutory direction and not by virtue of any contract to accept it. Eleftherion v. Company, 84 N. H. 32, 34, 146 A. 172. See Moore v. Hoyt, supra, 80 N. H. 169,116 A. 29. In so far as the acceptance of compensation discharges the defendant's common-law liability, it is a statutory, and not a contractual, bar. There being no valid agreement to accept compensation or to discharge the plaintiffs right of action, there was no contract to rescind. Hamel v. Company, 73 N. H. 386, 389, 62 A. 592; Genest v. Company, 75 N. H. 365, 368, 74 A. 593. The defendant's motion to dismiss was properly denied.

The right of the defendant to repayment, or to an accounting for the sums advanced by way of compensation, arises from an implied obligation based solely on equity and good conscience. It was the defendant's right to decline to make payments by way of compensation until the authority of the mother to bind the plaintiff had been established by her appointment as guardian, or by the bringing of the appropriate petition as his next friend. There being no evidence of fraud, the defendant must be presumed to have made the payments with a full knowledge of the legal privileges that the law accords to infants. The extent of the defendant's legal right in this action, as respects the compensation paid, is to offset the payments made against the damages recovered by the plaintiff. The defendant's right to such offset' is conceded by the plaintiff.

II. The plaintiff was of retarded mentality, having spent two years each in making the fourth and fifth grades of the grammar school, following which at the age of sixteen he entered the defendant's employ as an oiler boy, and was assigned to the "drawing room." His principal duty was lubricating machines with a brush or a can. When using the latter, he followed instructions to stop the machine and tighten a check nut so that it could not start. His spare time was spent in gathering up waste, sweeping the floors, and wiping up oil around the machines. After about a year's service as oiler boy, he was assigned to the operation of three two-spindle gill box machines, situated in the drawing room. On each machine are two aprons, each six inches in width, which come out between two steel rolls and pass up over a top guide roll in the form of belts, and thence downward on the back side; the rolls on which they are belted being two and a half inches in diameter. The function of the machines is to blend several laps of wool into a sliver by reducing five ends into one. The stock, entering the back of each machine at the bottom, comes to the front between the steel rolls and on the outside of the belt, and is carried upward on its outer surface. The purpose of the aprons is to prevent the wool from coming in contact with, and being caught by, the surface of the rolls. Lint from the stock gathers upon the apron and must be removed with each change in color. This may be accomplished by the open palm of the hand or by means of a hand card, which is a brush consisting of a leather surface, studded with closely...