Spilene v. Salmon Falls Mfg. Co.

• Decision Date: 06 January 1920
• Docket Number: No. 1610.,1610.
• Citation: 108 A. 808
• Parties: SPILENE v. SALMON FALLS MFG. CO.
• Court: New Hampshire Supreme Court

108 A. 808

SPILENE

v. SALMON FALLS MFG. CO.

No. 1610.

Supreme Court of New Hampshire. Strafford.

Jan. 6, 1920.

Exceptions from Superior Court, Strafford County; Marble, Judge.

Action by Mary Spilene against the Salmon Falls Manufacturing Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The evidence tended to prove the following facts: The defendant operates cotton mills, and Spilene was employed by it to handle bales of cotton in its storehouse. There was no floor, and the bales rested on large timbers placed some distance apart. The bales were piled to a considerable height, and it was the practice to remove them tier by tier, instead of layer by layer. When a new tier was started on, the bales were so removed that the end of the tier formed a series of steps each one bale high, and this formation was preserved as the work progressed. The bales weighed several hundred pounds each, and were covered with burlap. The method of handling was for two men, one at either end of a bale, to pull it out with hooks. They then got behind it and rolled it down the steps. These. hooks frequently pulled out when force was applied to them. This sometimes resulted from the fact that the burlap was poor; but the same thing occurred when the hook was inserted into the cotton. On the day of the accident Spilene and a fellow workman were engaged in removing bales by the method above described. Spilene was at the end of the bale, which brought him at the outer edge of the tier. They were working at a height of several bales above the timbers. Spilene inserted his hook, and when he pulled it gave way, and he was precipitated over the edge of the tier and onto the timbers below, striking his head and receiving the injuries which caused his death.

As tending to show that it was reasonable to contend that the storehouse should have been provided with a floor, the plaintiff was permitted to show, subject to exception, the value of the cotton stored.

The defendant moved for a nonsuit and for a directed verdict, and that the jury be instructed that the case was to be determined as at common law, since there was no evidence that the defendant had not accepted the provisions of Laws 1911, c. 163. The motions were denied, and the defendant excepted.

John L. Mitchell, of Portsmouth, and Hughes & Doe, of Dover, for plaintiff.

Branch & Branch, of Manchester, and Doyle & Lucier, of Nashua, for defendant.

PEASLEE, J. The case was tried, and the general merits of it have here been argued, upon the theory that the defendant's common-law liability was modified by the provisions of the Employers' Liability Act applicable to those who have not accepted its other provisions. Laws 1911, c. 163, § 2. It appeared in evidence that Spilene's work was of a character to make the statute applicable, but there was no evidence that the defendant had or had not accepted the compensation features of the act. In this state of the proof the defendant requested a ruling that the rights of the parties were to be determined as at common law, because the plaintiff had not offered evidence that the defendant had not taken the steps necessary to avoid the application to it of the provisions of section 2. The motion was denied, and the jury were instructed that the case was to be decided under that section.

There was no error in this instruction. That section is a general rule of law, applicable in all cases unless the defendant has taken certain steps whereby he is relieved from the general obligation. It is not greatly unlike general prohibitory laws, with provisions for securing licenses. As to these it is well settled in this jurisdiction that the burden is on the one asserting that he has a license to produce evidence of it. Notwithstanding the vigorous attacks upon this rule, it has been upheld for the reasons that it is too well established and too convenient to be abandoned. State v. Keggon, 55 N. H. 19, and cases cited. As was said in State v. Perkins, 53 N. H. 435, 436, the rule "has been found extremely convenient in practice, and is likely to be equally so hereafter, * * * it has resulted in no practical injustice, and is not likely to result in any hereafter."

Procedure in this jurisdiction is what justice and convenience require. The rule in question has been criticized chiefly upon the ground that it attempts to shift the burden of proof upon one of the issues in the case. Lisbon v. Lyman, 49 N. H. 553. But this is not a necessary result. A rule that upon an issue lying more particularly within the knowledge of one party he shall disclose his knowledge or the issue shall be decided against him does not of necessity involve the further rule that, if the evidence is produced, and the matter proves to be a disputed one, the burden is upon the party not having it generally in the trial. Justice and convenience may require that in certain phases of a case the party not having the burden of proof shall produce evidence, upon pain of that issue being decided against him if he declines to do so.

The phrase "burden of proof" has been used in two very different senses. In its true sense it means the risk of...