62 A.2d 717
No. 3795.Supreme Court of New Hampshire Merrimack.
Decided December 7, 1948.
A finding that an injured workman, who signed an agreement electing to accept the benefits of the Workmen’s Compensation Act rather than sue at common law, made a binding election not induced or obtained by fraud was warranted where, although she spoke little English and read none, the agreement was interpreted to her, she had the advice of her physician, and her testimony indicated an understanding that the period of compensation depended upon the duration of disability.
CASE, for negligence. The plaintiff was injured on October 18, 1945, while in the employ of the defendant. On November 9, 1945, she executed a written election to accept workmen’s compensation, and thereafter was paid compensation by the defendant’s insurer at the rate of one-half of her weekly wage for approximately a year. Upon certification by a physician that the plaintiff was then able to resume work, payments were discontinued, and an offer made in final settlement. This action was thereupon commenced.
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The defendant pleaded the plaintiff’s acceptance of the provisions of the Compensation Act in bar of the action. By replication, the plaintiff alleged that the election was obtained by “fraud and covin,” and that she was mentally and physically incapable of making it with understanding. The issue of fraud was heard by the Court (Wheeler, J.), who found that “the plaintiff elected to accept the benefits of the Workmen’s Compensation Law,” that she accepted checks knowing that they were in payment of compensation, and that her election and acceptance of compensation “was not induced or obtained by any fraud or covin on the part of the defendant.” The plea in bar was sustained “to the extent of the issue before the Court.”
To these findings and to the ruling sustaining the defendant’s plea, the plaintiff excepted. Further facts appear in the opinion.
Bois Bois (Mr. Maurice P. Bois orally), for the plaintiff.
Sulloway, Piper, Jones, Hollis Godfrey and Alvah W. Sulloway (Mr. Alvah W. Sulloway orally), for the defendant..
DUNCAN, J.
The plaintiff suffered a partial dislocation of her right hip, and a fracture of the neck of the right femur. She was interviewed by the district claims manager of the defendant’s insurer shortly after her discharge from the hospital. During her minority, she had lived and received her education in Canada. She spoke little English, and was unable to read it. Consequently, her husband, who was a man of limited education acted as interpreter. He spoke both French and English and read English somewhat. The insurer’s agent offered the plaintiff compensation at the rate of half her weekly wage, and sought her signature to a written agreement the execution of which is not disputed.
The pertinent provisions of the agreement follow: “I elect to accept the benefits provided by the Workmen’s Compensation Act of New Hampshire rather than to bring suit at common law. Therefore it is agreed . . . that there will be paid compensation at the rate of $15.27 per week . . . payable from and including the 18th day of October 1945, until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of New Hampshire.”
There was evidence to warrant the finding that the agreement was interpreted to the plaintiff, and it appeared that before it was executed, the plaintiff’s husband, with the agent, consulted her attending physician concerning it. It could be found that after assurance
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that the plaintiff would be entitled under the agreement to compensation for permanent disability, if it should result, the physician recommended acceptance of the offer, and execution of the agreement. His recommendation was reported to the plaintiff by her husband, and the document was executed.
The plaintiff, testifying through an interpreter, reiterated her understanding that she was to receive compensation “up to five years . . . if I was unable to work.” The agent testified that the period of compensation was described by him as three hundred weeks, and that the matter of common law rights was discussed, through the plaintiff’s husband.
The findings made by the Trial Court were fully warranted by the evidence, and the defendant’s plea was properly sustained. The election which the plaintiff executed did not purport to be a settlement of her claims, but was an open end agreement for compensation in accordance with the Workmen’s Compensation Act. The evidence failed to establish as a matter of law that material facts were misrepresented to the plaintiff, or that the conduct of the agent occasioned any misconception on her part of the nature and effect of her action. Cf. Eleftherion v. Company, 84 N.H. 32. Her own testimony was devoid of any basis for a finding of fraud. While there was other evidence suggestive of inaccuracy of statement by the agent, and of opportunity for misunderstanding on the part of the plaintiff, it did not require acceptance by the Court. Accordingly, the order is
Exceptions overruled.
All concurred.