Graham v. Weber , 79 N.H. 393 ( 1920 )

The first contention of the defendant is that there was no evidence which warranted the finding of the jury that the release was obtained by fraud. The release was secured by an agent who represented the company that insured the defendant. His conduct is open to the inference that he was not dealing fairly and honestly with the plaintiff. The plaintiff was a young woman of less than ordinary intelligence. Shortly after she had received the injury, and was suffering great pain, he went to procure a release from her. He arranged to see her alone. He did not ask her to give him her version of how the accident happened, but without any knowledge of what her claim was relative thereto, according to her undisputed evidence, he immediately proceeded to tell her positively that he had looked over the machinery, and that it wasn't dangerous at all, that the accident was all her fault, that he had many accident cases and that he knew the law, and that she couldn't get anything. She testified that she had never worked on any kind of machinery and did not know anything about it, and that she signed the release because he told her she could not get anything, and she thought he was telling her the truth. He persuaded her to sign a release for fifty dollars, and she lost in the accident three fingers of her right hand.

The method that was employed in obtaining the discharge leads to the conclusion that the only purpose of the agent was to secure it, and how that was accomplished was a matter of no consequence to him. The jury could find that his statement to the plaintiff was made recklessly with a conscious indifference as to its truth, and without caring whether it was true or false. This would establish the fraudulent character of the act. Shackett v. Bickford, 74 N.H. 57; Derry v. Peek, 14 App. Cas. 337; LeLievre v. Gould, 1 Q.B. 491, 498.

It cannot be held that the court was in error in refusing to grant the defendant's motion for a nonsuit or a directed verdict.

The plaintiff claims that the defendant did not furnish her a reasonably safe place in which to work, that the machine was not suitable and proper, and that she was not properly instructed as to the dangers of her employment. The evidence tended to prove that the plaintiff's working space was inadequate for the work she was called upon to perform, and that the place was dark. We cannot say that this evidence supplemented by the view which the jury had of the premises was not sufficient to warrant them in finding that the work-place was not reasonably safe. Crowther v. Company, ante, 63, 65.

The machine in which the plaintiff was injured was an ordinary kitchen meat grinder not made or intended to be driven by power. The evidence tended to prove, and the view undoubtedly disclosed, that power was applied to it in a makeshift, unsubstantial manner, and the jury would be justified in finding that it was not a suitable and proper machine as installed and operated.

The plaintiff testified that before she began to operate the machine, the defendant took a handful of each kind of the ingredients to be ground, and put them in the meat grinder, and placed his hand over the top of it, and pressed them down with his fingers; that he told her to be careful, which she understood referred to the mixing of the ingredients; that this was all the instructions the defendant gave her relative to operating the machine. This evidence would warrant the jury in finding not only that the plaintiff was not properly instructed, but that the instruction to press down the ingredients with her fingers was well calculated to produce the accident.

The defendant urges that the plaintiff knew and appreciated the dangers incident to operating the meat grinder, and therefore that she assumed this danger of her employment and cannot recover. It is probably true that she knew if her fingers were caught in the grinder they would be injured. But she says she never worked upon a machine before, driven by power, and did not appreciate the danger. Her assertion is not unreasonable. She was a young woman of dull perception, and was called to operate a common kitchen meat grinder such as she had seen and handled many times, but those that she had been familiar with were turned by hand, and there was no danger in operating them in that manner. And it is not strange that she did not appreciate that one of these little kitchen meat grinders became dangerous to operate when driven by power. It cannot be held as a matter of law that she assumed this danger of her employment.

The defendant's position that the jury must find upon the evidence that the plaintiff was guilty of contributory negligence is untenable.

As stated above, the plaintiff's testimony was that the defendant in instructing her how to operate the grinder placed his hand over the top of it, and pressed down the ingredients with his fingers. If the jury gave credence to her statement, which was their privilege, she was doing exactly as the defendant had directed her to do. The plaintiff had a right to assume that her employer, who was the owner and manager of the bakery, understood how to operate the machine, and that it was safe to follow his instructions, and in so doing it cannot be said that all reasonable men would agree that she was guilty of negligence. Weeks v. Company, 78 N.H. 26, 30.

The defendant's first two and fourth requests for instructions which were refused are as follows: "There is no evidence of negligence on the part of the defendant as to the condition or kind of the meat grinder used from which it can be found that the accident was caused thereby. There is no evidence from which it can be found that the meat grinder was defective. There is no evidence that the defendant failed to warn the plaintiff of any dangers which the plaintiff did not know of." In view of the discussion in the opinion relative to the evidence and its adequacy to support the verdict, it would seem unnecessary to give these requests extended consideration. It is sufficient to say that such instructions were not required by the evidence. The tenth request for instructions which was denied was as follows: "If you find that the plaintiff stated to Mr. Mahoney the agent of the insurance company that the accident was due to her own fault the agent was justified in stating to her that she had no case. You will then find on all the evidence that the release was valid and the plaintiff cannot therefore recover." There was no evidence that the plaintiff stated in the presence of the agent that the accident was her fault until he had informed and persuaded her that she had no case, and she was about to sign the release. The evidence that she said in the agent's presence that it was her fault came from the defendant's wife who was called in to sign the release as a witness after the agent had concluded his private conference with the plaintiff. And the plaintiff testified without contradiction that the agent said to her in substance that she must acknowledge before the defendant's wife that she was to blame. It was not error to refuse this request.

The other seven requests are included in the charge, and no exception can be sustained because the court did not make use of the specific language employed by the defendant in his requests. Wheeler v. Railway, 70 N.H. 607,615; Walker v. Railroad, 71 N.H. 271, 273; Bond v. Bean, 72 N.H. 444; Kasjeta v. Company, 73 N.H. 22, 25; Richmond v. Bethlehem, 79 N.H. 78.

The court instructed the jury that if they found the release was secured by fraud, they would be entitled to consider "the fact that it was so obtained for whatever it is worth as evidence of the fact that the defendant's agent, Mr. Mahoney, was conscious of some infirmity in his defence which was liable to defeat it in a fair trial relating to its merits." The defendant excepted to this instruction. In Pearson v. Company,69 N.H. 584, it appeared in evidence to which exception was taken, that the defendants in a previous suit appertaining to the same matter, unjustifiably caused the arrest of the plaintiff to enforce a claim against him. The court held the evidence competent, and in passing upon its competency said: "The evidence tended to show that the defendants were unwilling to submit their claim to the usual course of litigation, but felt the need of resorting to means of oppression to compel a settlement, — that they were conscious of some infirmity in their claim which was liable to defeat it in a fair trial relating to its merits." While that case is unlike the case at bar, it would seem that the same principle is involved. There the defendants committed an act of oppression to aid in the enforcement of their demands, here the defendant by his agent, resorted to fraudulent methods to obtain a release from a claim against him. We believe the principle enunciated in Pearson v. Company is sound, and that it applies to this case.

The defendant's exceptions to evidence and to the denial of his motion for a separate trial upon the issue involving the validity of the release have not been argued, and are understood to be waived.

Exceptions overruled.

PEASLEE, J., was absent: the others concurred.