Wheeler v. Contoocook Mills Corp.

• Decision Date: 04 May 1915
• Parties: WHEELER v. CONTOOCOOK MILLS CORPORATION.
• Court: New Hampshire Supreme Court

94 A. 265

77 N.H. 551

WHEELER

v. CONTOOCOOK MILLS CORPORATION.

Supreme Court of New Hampshire. Merrimack.

May 4, 1915.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Case for negligence under the Employers' Liability and Workmen's Compensation Act (Laws 1911, c. 163) by Etta M. Wheeler against the Contoocook Mills Corporation. There was a verdict for plaintiff, and the cause was transferred from the superior court. Exceptions overruled.

The plaintiff was at work by the day in an upstairs room of the defendant's stocking mill. The work ran short, and the overseer told her that if she wanted to finish out the day she could take her chair and go downstairs, where there was piecework to be done. The stairs were unrailed on one side for several steps from the bottom, the treads were badly worn, and the stairs were incumbered by large bundles of stockings which had been thrown down from the upper floor. The plaintiff attempted to pick her way down the stairs while carrying her chair, and while so doing slipped and fell from the worn and unrailed treads, receiving the injuries complained of.

The defendant was set out in the writ as the "Contoocook Mills Company." It appeared generally, and at a later term moved that the suit be dismissed because the Contoocook Mills Company had been dissolved and the present corporation was the Contoocook Mills Corporation, The motion was denied, the plaintiff was given leave to amend by substituting "Corporation" for "Company," and the defendant excepted.

Upon cross-examination, a witness called by the defendant was asked, "Who was Ham?" and replied, "I don't know, I heard he represented an insurance company," whereupon the defendant excepted. The defendant's motion for a directed verdict was denied, subject to exception. Further facts and other exceptions are stated in the opinion.

Martin & Howe and Joseph A. Donigan, all of Concord, for plaintiff. Albin L. Richards, of Boston, Mass., Sewall W. Abbott, of Wolfeboro, and Oscar L. Young, of Laconia, for defendant.

PEASLEE, J. The claim that the suit should be dismissed because the defendant was set out in the writ as the "Contoocook Mills Company" instead of the Contoocook Mills Corporation was rightly denied. The misnomer was at the most only pleadable in abatement; and the defense, so far as it was one, was waived by the general appearance. The argument that the suit was in fact brought against another defendant is not well founded in fact. The Contoocook Mills Company had gone out of existence. There was no such corporation, and for the purposes of this case it is as though there never had been. It is the ordinary case of a not very important mistake in the name of a corporation, curable by amendment in any event. It was so held even in the days of strict common-law pleading. Burnham v. Bank, 5 N. H. 573.

The exception to the statement of a witness, that he heard that Ham represented an insurance company, is not well taken. The statement was not called for, and there was no motion to strike it from the record. The court was not asked to rule upon its admissibility, or upon its being allowed to stand as a part of the evidence. Until such request is made and refused there is nothing to which exception will lie. The fault was wholly that of a witness. It was not an error made by the court, or misconduct chargeable to the opposite party or her counsel.

The declaration charges negligence in general terms, followed by a specification that the stairs were dangerous because incumbered and unrailed. At the trial the plaintiff also introduced evidence that the treads were badly worn. No objection was made to the introduction of evidence upon this point. It appears to have been tried out without objection, and the defendant excepted to a refusal to charge the jury that this phase of the case could not be considered. In this situation it is useless to consider whether the declaration covers the matter or not. If it does not, it may now be amended.

The defendant moved for a directed verdict upon various grounds. So far as it relates to the fault of the defendant in maintaining such stairs, so incumbered, and ordering the plaintiff to use them while hampered in her movements by the chair she was carrying, the evidence is clearly sufficient. The claim that because she had completed one kind of work upstairs and was going downstairs to begin work for which she was paid in a different way, therefore she was not, while in transit, the defendant's servant, does not demand extended consideration. If the claim were well founded, employers would be released from all...