Supreme Court of New Hampshire StraffordJun 4, 1929
84 N.H. 84 (N.H. 1929)
84 N.H. 84146 A. 529

Decided June 4, 1929.

Where compensation insufficient in amount has been paid to and receipted for by a workman under a mistaken belief induced by his employer that the disability was terminated, a petition may be maintained for such additional compensation as is authorized by the act. A receipt like any other admission may be explained or contradicted and does not come within the parol evidence rule. A receipt in full is prima facie evidence only upon the question whether the whole of the debt has been paid and will not operate as a discharge of claims not within the contemplation of the parties when it was executed. Where a writing is non-contractual, e.g. a receipt, the question whether it should be set aside in equity for mistake cannot arise as the parol evidence rule is no bar to proof at law of the circumstances of its execution and delivery.

BILL IN EQUITY, to determine the plaintiff's rights under the employers' liability and workmen's compensation act (P. L., c. 178). Trial by the court, and decree for the plaintiff. A bill of exceptions was allowed by Scammon, J.

The plaintiff was injured January 4, 1921, while employed by the defendant. In the course of his work as a painter he was thrown from the top of a machine to the floor and sustained an injury to his right knee. X-ray pictures taken shortly after the accident disclosed the fact that he had suffered a fracture of the tubercle of the tibia, which is a small bony prominence on the leg, below the knee. He was treated for this injury by a surgeon employed by the defendant, at the defendant's hospital. He accepted compensation at the rate of $10 per week until July 28, 1921, when he received a final payment and executed a settlement receipt which reads as follows:



the sum of Twenty-two dollars and 86 cents being the proportion of my weekly wage, from the 15th day of June, 1921, to the 30th day of June, 1921, including final day of disability making in all, with weekly payments received by me, the sum total of Two hundred thirty-two dollars and 86 cents, in settlement of compensation under the New Hampshire Workmen's Compensation Act, for all injuries received by me on or about the 4th day of January, 1921, while in the employ of Great Falls Bleachery Dye Works, Somersworth, N.H.

Agreement made April 20, 1921. Witness my hand this 28th day of July 1921. Witness Margaret T. Cavanaugh Address Great Falls Mfg. Co. Charles C. Bunker Somersworth, N.H. Box 350, Berwick, Maine."

Before signing this receipt he was assured by the defendant's surgeon that his knee "would come all right" or "would be all right," and was told by the nurse in charge of the defendant's hospital that the doctor said his disability was over. The plaintiff testified that he signed the receipt in reliance upon these statements and also upon an assurance from his boss that he could have his job back. The evidence tended to show that plaintiff had never recovered from his injury sufficiently to permit him to resume work as a painter, which involved climbing on ladders and stagings, and that although he had tried to get work, he had only succeeded in earning about $100 in the five years following the accident. At the time of the trial the physical examination showed that there was a displacement of the right kneecap upward of approximately one-third of an inch when the leg was bent at an angle of ninety degrees.

The court found that "At the time of the giving of the release in full, the only injury of which the plaintiff complained was that to his right knee, and the sole question being determined at the time of final settlement was the amount of compensation to which he was entitled; that whether he had recovered at the time was a matter material to the contract of settlement and it was the intention of the parties to terminate all payments to which he was entitled as compensation and had no reference to the defendant's liability for negligence in causing his injury." In accordance with these findings the court ruled that the plaintiff was not barred by the settlement receipt above set forth and awarded him compensation in the sum of $1267.14. To the foregoing findings and rulings the defendant excepted. Other facts appear in the opinion.

Matthews Varney (Mr. Varney orally), for the plaintiff.

Lucier Lucier (Mr. Alvin A. Lucier orally), for the defendant.

In its brief and argument the defendant seeks to establish three legal propositions which may be stated as follows: 1. That there is no evidence that the displacement of plaintiff's kneecap was caused by the accident in question; 2. That the settlement receipt signed by the plaintiff operated like a release under seal to bar him "from proceeding further under the act"; 3. That the only mistake of the parties was one of opinion as to further developments based upon fully disclosed facts which furnishes no ground for equitable relief.

1. In support of its contention that there was no proof that the displacement of plaintiff's kneecap was due to the accident, the defendant relies upon the evidence that the x-ray plates taken soon after the accident showed no such displacement, and argues that a possible cause for the present condition of the plaintiff's knee is evidenced by his admission that he had another fall about twenty months after the accident.

It should be noted in the first place that the plaintiff's complaint was not primarily of a displaced kneecap, but of a persistent weakness and lameness in the knee which disabled him from work. Whether these symptoms resulted from the displaced kneecap or whether the weakness of the muscles and tendons of the knee permitted the cap to slip out of place did not appear. So far as the evidence showed, the displacement of the kneecap was merely an objective manifestation of trouble with the knee, and the question whether the displacement existed at the time of settlement or developed subsequently is not necessarily decisive of the plaintiff's rights.

Even upon the defendant's theory of the case, however, its argument is not conclusive. The evidence of the expert who took the plates was that they showed no disturbance of the kneecap "from an x-ray view point"; that they showed "a normal location of the kneecap" and that if there had been any other injury aside from the fracture, he "would expect" that the x-ray would "show it all right." A physical examination of plaintiff's knee made at the trial showed that the position of the kneecap was normal when the leg was extended, but that when the leg was bent at an angle of ninety degrees the cap was displaced upward about one-third of an inch. It appeared that the x-ray plates were taken with the knee "partially flexed." Hence it was not clearly shown that the position of the leg when the x-ray plates were taken was one which would have revealed the displacement if it had then existed. The expert further testified that he did not attribute the plaintiff's present condition to the accident "with the evidence of the injury that I saw," but when asked to what he would attribute it "with the injury as the only history in the case" he replied, "Well, I wouldn't wish to say."

The plaintiff's description of his subsequent fall would hardly justify and much less compel a conclusion that the displacement of his kneecap resulted therefrom. His testimony was that about twenty months after the accident, he slipped down and hurt his elbow, but that it "never hurt the knee at all."

The defendant's surgeon, who treated the plaintiff, was a witness and did not deny that the present condition of his knee was a result of the accident. On the contrary his testimony clearly implied that it was so caused. In answer to questions by the court, he testified as follows:" Court: From the examination that you have made today, has the result been as you expected? Witness: Well, the injuries to the knee joint, they are very slow and I think it is not doing as well as I expected. Court: You don't think it is doing as well, didn't do as well as you expected? Witness: No."

The testimony of the plaintiff was clear and emphatic to the effect that his disability had continued without interruption since the date of the accident, and this testimony justified the conclusion of the court that his present condition resulted from the injury sustained at that time.

2. Defendant's view of the nature and effect of the settlement receipt cannot be adopted. It is several times referred to in defendant's brief as a release, and the suggestion is made that it "was in the nature of a waiver of the rights to which the plaintiff was entitled under the workmen's compensation act," but it bears little resemblance to either a release or a waiver. It states the amounts received by the plaintiff and what they were paid for, but by its terms the plaintiff releases nothing and waives nothing. This is not "a writing which partakes of the nature both of a contract and a receipt." Goodwin v. Goodwin, 59 N.H. 548, 550. It is legally only what it purports to be — a receipt in full for compensation due under the act. It evidences no compromise of liability but merely an admission by the plaintiff that an unquestioned liability had been fully satisfied. A receipt, like any other admission, may be explained or contradicted. Gleason v. Sawyer, 22 N.H. 85; Goodwin v. Goodwin, supra. It does not come within the scope of the parol evidence rule, because it is not intended to be an exclusive memorial of the agreement of the parties. 5 Wig., Ev., s. 2432. A receipt in full is prima facie evidence only upon the question whether the whole of the debt has been paid, and cannot operate as a discharge of claims not within the contemplation of the parties when it was executed. By the receipt in question the plaintiff admitted that the sums which he had received measured the full extent of the defendant's liability, but the basis of this admission was open to explanation and if it proved to be based upon a mistaken assurance that his disability had terminated, the admission ceased to have binding force. "The fact admitted by the receipt may be simply shown to be otherwise, and that may be done by any evidence calculated to satisfy the minds of the jury, either by direct proof, or by circumstances tending to the same result." Gleason v. Sawyer, supra. The ruling of the trial court that the plaintiff was not barred by this receipt was correct.

3. Such being the nature of the instrument relied upon by the defendant, its third contention becomes nugatory. Since the plaintiff has entered into no contractual relation with the defendant by virtue of the settlement receipt, the question whether he has made out a case for equitable relief from the effect of a release ceases to be of interest. In order to justify a decree for the plaintiff, it was only necessary for the trial court to find that he had not received the full compensation to which he was entitled under the statute. Although not expressed in these terms, such a finding was clearly made by the court, and, therefore, the order must be

Exceptions overruled.

All concurred.