Summary
In Stone v. Johnson, 90 N.H. 311, the distinction set forth in the Barrett case was impliedly recognized through reference to the case between the same parties reported in 89 N.H. 329, the court there (p. 331) saying that the promise to repair was not relied upon by the plaintiff as a condition of her services.
Summary of this case from Busick v. CorporationOpinion
No. 3053.
Decided October 3, 1939.
No action sounding in tort may be maintained for negligent failure to perform a contract.
Where no liability of a master for injuries to his servant exists because of the servant's assumption of risk, he cannot maintain an action contractual in form, counting upon the master's promise to make the premises safe by lighting them.
ACTION OF CONTRACT. The declaration alleges an agreement on the part of the defendant to keep open the door of a bathroom and to keep the room lighted while the plaintiff was employed as a nurse in the defendant's home, the breach of contract resulting in personal injury to the plaintiff.
The defendant pleaded the decision in Stone v. Johnson, 89 N.H. 329, as "a barrier to this suit," and the question whether the plaintiff is entitled to maintain the present action in view of the opinion of the court in that case was transferred by Burque, C.J., without a ruling.
Saidel, Lemelin, Hurley Betley, for the plaintiff, furnished no brief.
Wyman, Starr, Booth, Wadleigh Langdell, for the defendant, furnished no brief.
In Stone v. Johnson, 89 N.H. 329, the plaintiff sued in tort for the same injuries for which she now seeks recovery. It was there held, on her application to amend the case by claiming liability of the defendant personally instead of in a representative capacity, that the facts demonstrated her assumption of the risk. The application was therefore denied.
She now seeks to recover against the defendant personally in an action on the alleged contract. But it was stated in Stone v. Johnson, supra, 331, that she could not recover on the "alleged promise of the defendant to leave the lights burning" since "no action sounding in tort may be maintained for negligent failure to perform a contract." Such is understood to be the settled law of this jurisdiction. Barrett v. Company, 80 N.H. 354, 355, and cases cited.
Judgment for the defendant.