109 A. 837 | N.H. | 1919
Amendments in matters of substance may be allowed by the court in any stage of the proceedings when necessary to prevent injustice. P.S., c. 222, s. 8.
Under c. 163, Laws 1911, a servant of an employer, who has accepted the provisions of the act, in case of injury may bring an action against his employer to recover for such injury upon the ground that it was caused by his employer's negligence, or he may seek the compensation provided by the act, in which case the question of negligence is not material. After election of either remedy the alternative *300 remedy is not open to him. Ib., s. 4. When, as alleged in this case, the employer has not accepted the provisions of the chapter, the injured employee has no election. His only remedy is an action of case for negligence.
By the statute, in certain cases common law rules of liability are materially modified in favor of the plaintiff against an employer who has not accepted the act. The only object in referring to the statute in the declaration is to give notice of a claim that the case is within these provisions of the statute. The statute regulates the rights of the parties and must be applied whenever called to the attention of the court, unless upon some ground the plaintiff has estopped himself from claiming its benefits. The proposed amendment gives the defendants seasonable notice and no ground appears upon which the court can refuse to allow it, or after the notice given by the offer of the amendment deprive the plaintiff of the benefit of the statute. Section 4, c. 163, Laws 1911, has no application.
Case discharged.