Wemyss v. Wyoming Valley Paper Co.

• Decision Date: 01 May 1934
• Citation: Wemyss v. Wyoming Valley Paper Co., 86 N.H. 587, 172 A. 438 (N.H. 1934)
• Court: New Hampshire Supreme Court
• Parties: WEMYSS v. WYOMING VALLEY PAPER CO.

172 A. 438

WEMYSS

v. WYOMING VALLEY PAPER CO.

Supreme Court of New Hampshire. Coos.

May 1, 1934.

Transferred from Superior Court, Coos County; Page, Judge.

Action by James C. Wemyss against the Wyoming Valley Paper Company. Verdict for plaintiff, and case was transferred on defendant's exceptions.

Judgment on verdict.

Case for negligence to recover for damages for personal injuries alleged to have been suffered by the plaintiff while in the employ of the defendant Trial by jury with verdict for the plaintiff. Transferred by Page, J., upon the defendant's exceptions to the admission of certain testimony; to the denial of its motions for a nonsuit and a directed verdict; to the charge; to the denial of its requests for instructions, and to the denial of its motions to set aside the verdict. The exceptions considered are more fully stated in the opinion.

The evidence tended to prove the following facts:

The defendant operates a paper mill in the town of Northumberland where it is engaged in the manufacture of tissue papers. The president and general manager of the company is James S. Wemyss, who is not a resident of New Hampshire. The plaintiff is his son and holds the office of treasurer of the corporation. He resides in Northumberland, and, in the absence of his father, has full charge of the plant. He agreed that the term "resident manager" described his position with sufficient accuracy, although it did not appear that this title was known to the defendant corporation. When his father was at the plant the plaintiff "was under his instructions completely."

The plaintiff was injured while at work upon a de-inking machine, so-called, which had recently been installed in the defendant's mill. The function of this machine was to remove ink from printed paper and thus convert it into stock for use in the manufacture of the defendant's products. It consists primarily of four pairs of large rolls, each pair being separated from its neighbor by an "agitator box." When in operation, the paper stock is first reduced to pulp in a machine known as a beater and then passes through each set of rolls and through each of the agitator boxes. The lower roll of each set is known as a cylinder roll and the upper one as a couch roll. The couch roll is fitted with a device known as a "doctor" which scrapes off the pulp accumulating on this roll and causes it to drop upon an apron located behind the rolls from which it should flow or slide into an agitator box. Each of these boxes is about 14 inches wide and contains a series of revolving paddles by which the pulp is subjected to a churning process. Two of the agitator boxes had iron covers, but the one between the first and second sets of rolls had been covered by two loose planks 2 inches thick and 6 inches wide, extending across the machine. At the time of the accident plaintiff was working between these two sets of rolls and was injured by getting his right foot into the agitator box. The negligence complained of was the failure of the defendant to furnish a suitable cover for this box.

During a large part of the time while the machine was being set up, and thereafter for a period of about five weeks up to the day of the accident, the plaintiff was away from the defendant's plant on a selling trip, and later on a vacation. Immediately after his return, upon September 3, 1931, he was directed by his father to go down to the pulp mill and see if he could "get that machine working." Accordingly the plaintiff, with the help of three other men, started the machine and after some time found that the stock was too dry, so that it began to pile up on the apron behind the first set of rolls, from which it threatened to fall into the gears on the back side of the machine and cause damage. The plaintiff, therefore, called upon two of his assistants, who were working on a pump, to furnish more water, and went between the first two sets of rolls for the purpose of pushing the accumulated pulp off from the apron. In so doing, he walked along the edge of the agitator box upon an iron flange about 2 inches in width, steadying himself by holding onto an iron truss with his left hand. While standing upon the edge of the box, with his left foot in front of the right, and bending forward so as to reach the pulp with his right hand, he was injured in a manner which he described as follows:

"The water started to come out of the pump and with that the stock in the rolls, which are four of them, just automatically started to loosen and some of the big chunks of stock that was in back of it came through jarring that couch roll which in turn, the doctor being on top of it jumps up hitting my arm which was partly resting on it at the time and threw me off my balance and in doing that my right foot hit the side of the cover and the planks gave away, slid right forward and my foot went in. * * * Q. Now when your foot went into the box there what happened as far as the machine is concerned? A. Well, there was a grinding. All I could think about at that time was my leg caught, feel it grab ahold of it, grabbed here and sucked me in through to my knee and I yelled, 'Help, help' and as I was facing back towards the river I noticed the belt that was driving the thing stop more or less and slide off. The machine stopped. My leg really just plugged the machine." Other facts appear in the opinion.

Bernard Jacobs, of Lancaster, for plaintiff.

Irving A. Hinkley, of Lancaster, for defendant.

BRANCH, Justice.

Underlying much of the defendant's argument is the thought, not clearly expressed, that the relationship between the defendant and the plaintiff was not that of master and servant, and that the rules of law governing the latter relationship were, therefore, inapplicable. This theory is untenable. "The word 'servant' in our legal nomenclature has a broad significance, and embraces all persons of whatever rank or position, who are in the employ, and subject to the direction or control of another, in any department of labor or business. Indeed, it may in most cases, be said to be synonymous with 'employee.'" Wood, Master & Servant, § 1; 1 Labatt, Master & Servant, §§ 2, 6; 39 C. J., title, Master & Servant, § 1, and cases cited. The plaintiff was undoubtedly an employee of the defendant, and, although many of his duties were managerial in their nature, he was, according to the uncontroverted evidence, completely subject to the direction and control of his father, the general manager. We, therefore, think it is plain that he was entitled to the rights and subject to the disabilities of a servant. Accordingly it must be held that the trial court was correct in its instruction to the jury that plaintiff's title or relative rank in the employment was not decisive of his rights.

The contention of the defendant that there was no evidence of its negligence is without merit. The necessity for covers to the agitator boxes was apparently conceded at the trial, and, under the evidence, could not be denied. There was abundant evidence that the two planks which were laid over the first box did not constitute a proper cover and that in order to make one they should have been cleated on the bottom so as to hold them together and prevent sliding either laterally or longitudinally. These planks were installed by defenda...