Tully v. Carter

• Decision Date: 30 June 1933
• Citation: 167 A. 274
• Parties: TULLY v. CARTER.
• Court: New Hampshire Supreme Court

167 A. 274

TULLY

v. CARTER.

Supreme Court of New Hampshire. Hillsborough.

June 30, 1933.

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

Proceeding under the Workmen's Compensation Act by Herbert R. Tully, opposed by Winthrop L. Carter. Transferred without ruling on motion to dismiss petition.

Petition dismissed.

Petition for compensation, under P. L. c. 178. The case was sent to a master, who found the facts and ruled that the plaintiff was within the provisions of the act and entitled to recover compensation from the defendant, who had accepted the act.

Transferred without ruling by Burque, J., upon the defendant's motion to dismiss the petition. The facts are stated in the opinion.

Wyman, Starr, Booth & Wadleigh, of Manchester (Ralph E. Langdell, of Manchester, orally), for plaintiff.

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

PEASLEE, Chief Justice.

The defendant had accepted the Workmen's Compensation Act and employed the plaintiff upon a farm. The premises consisted of the usual arrangement and equipment of an extensive summer home, with the commonly used power-driven contrivances. The plaintiff was employed to care for the greenhouse and gardens and to assist the foreman. It was a part of his duty to switch on and off an electrically driven pump in the greenhouse, to oil it, and to look after two other similar pumps when requested by the foreman. At the time of the accident (November), the family had left the place, and only the plaintiff and the foreman were employed there. During the season a third man was employed about the place, and two housemaids occasionly went to the greenhouse upon errands. Two or three other men were employed for short intervals, in the season, as occasion required.

The plaintiff claims that his employment comes within the description in Public Laws, c. 178, § 1, par. 2: "Work in any * * * place * * * in which * * * place five or more persons are engaged in manual or mechanical labor." Conceding that the maids or the occasional employees could be counted when there, they were all gone from the premises a substantial time before the plaintiff was injured. Their employment had been terminated. There were then but two employees engaged at the "place," and this paragraph does not apply. "Danger of injury caused by fellow servants" (Id. § 1) is a part of the requirement for its application; and the employment of five or more servants is made the statutory test of the existence...