Sullivan Mach. Co. v. Stowell

• Decision Date: 29 June 1921
• Citation: 114 A. 873
• Parties: SULLIVAN MACHINERY CO. v. STOWELL.
• Court: New Hampshire Supreme Court

114 A. 873

SULLIVAN MACHINERY CO.

v. STOWELL.

Supreme Court of New Hampshire. Sullivan.

June 29, 1921.

Transferred from Superior Court, Sullivan County; Kivel, Judge.

Suit by the Sullivan Machinery Company against Carl A. Stowell. Injunction granted plaintiff. Transferred on defendant's bill of exceptions. Exception sustained, and injunction dissolved.

The defendant, who was injured while employed by the plaintiffs, sued them, and they filed a plea alleging that they had accepted the provisions of Laws 1911, c. 163, and that he had also accepted the provisions of the act. They also filed this bill, alleging the same facts, and praying that the defendant's compensation under the act be determined, and that he be enjoined from prosecuting his action at law. The court found that the facts alleged in the bill were true, and appointed a master to determine the compensation due the defendant under the act, and enjoined him from prosecuting his suit against the plaintiffs, and he excepted.

Streeter," Demond, Woodworth & Sulloway and Jonathan Piper, all of Concord, for plaintiffs.

Jesse M. Barton, of Newport, and Francis W. Johnston, of Claremont, for defendant.

PARSONS, C. J. The defendant, having suffered an injury while in the plaintiffs' employ, brought a common-law suit against them, alleging his injuries were caused by their negligence. The plaintiffs, defendants in that action, filed a brief statement of defense, alleging that they had accepted the provisions of chapter 163, Laws of 1911, and that the plaintiff had accepted compensation under the provisions of that chapter for the injuries alleged in the writ. Section 4 of chapter 163, Laws of 1911, "the Employers' Liability and Workmen's Compensation" Act, provides:

"The right of action for damages caused by any such injury, at common law * * * shall not be affected by this act, but in case the injured workman * * * shall avail himself of this act, either by accepting any compensation hereunder, by giving the notice hereinafter prescribed, or by beginning proceedings therefor in any manner on account of any such injury, he shall be barred from recovery in every action at common law."

The brief statement, therefore, set up a good defense to the action. Not content with the forum so presented for the trial of the issue upon which their defense rested, the present plaintiffs petitioned the court to enjoin the prosecution of the suit, alleging the facts set out in the brief statement, and that they were unable to agree with the defendant as to the amount of compensation due him. The court found the defendant had accepted compensation and enjoined the prosecution of the suit at law, subject to exception.

Section 9 of the act authorizes any injured workman, in case the employer fails to pay compensation as provided in the act, to bring a bill in equity to recover the same. The sectton also gives the right to any employer, "Who has declared his intention to act under the compensation features of the act, * * * to apply by similar proceedings to the superior court or to any justice thereof for a determination of the amount of the weekly payments to be paid the injured workman, or of a lump sum to be paid the injured workman in lieu of such weekly payments." The section continues:

"And either such employer or workman may apply to said superior court or to any justice thereof in similar proceeding for the determination of any other question that may arise under the compensation feature of this act."

Under these provisions it is argued that the issue whether the plaintiff had accepted compensation was before the court as a jurisdictional fact, and, having been found against the workman, was conclusive...