Summary
In Middleton v. Faulkner, et al, 180 Miss. 737, 178 So. 583, the Court gives a history of simple tool, citing the Mississippi decisions.
Summary of this case from Letney v. MillerOpinion
No. 32969.
February 7, 1938.
1. MASTER AND SERVANT.
The master is ordinarily under no obligation of care in regard to safety of simple tools, either in furnishing or maintenance and repair thereof.
2. MASTER AND SERVANT.
A "simple tool," within rule exempting master from liability to servant for failure to exercise care with respect to furnishing, maintaining, or repairing "simple tools," is one which has no complications in structure and is of such ordinary use that any normally intelligent person of mature age or of experience would have substantially as much knowledge as another and could use tool in ordinary manner without incurring more than bare possibility of injury.
3. MASTER AND SERVANT.
A master's duty with respect to furnishing safe tools is greater where employee is immature and inexperienced.
4. MASTER AND SERVANT.
A declaration against master for injuries to servant caused by use of worn wedge stated a cause of action, where declaration alleged that servant was only seventeen years of age and wholly without experience, that master knew thereof, that foreman assured servant that wedge was safe, declining to furnish another, and that servant relied on foreman's assurance.
APPEAL from the circuit court of Warren county. HON. R.B. ANDERSON, Judge.
Vollor Teller, of Vicksburg, for appellant.
Our contention is that there is no legal magic in the "simple tool doctrine" which of itself exonerates all defendants of legal responsibility when an injury is occasioned while using a simple tool irrespective of all other independent, connected negligence otherwise imposing legal liability upon them. Our claim is that the "simple tool doctrine" extends no further than the reasoning responsible for its existence.
Jones v. Southern United Ice Co., 150 So. 652, 167 Miss. 886; Mitchell v. Brooks 147 So. 660, 165 Miss. 826; Allen Gravel Co. v. Yarbrough, 98 So. 117, 133 Miss. 652; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Warsaw So. Lbr. Co. v. Cooley, 94 So. 228, 130 Miss. 333; Parker v. Wood Lbr. Co., 54 So. 252, 98 Miss. 750, 40 L.R.A. (N.S.) 832.
All of these cases, above cited, involved injuries to experienced, adult laborers, all of whom were accustomed to the use of the very tool causing their respective injuries. Further, there was therein no order or inducement from the master causing the employee, then and there, by reason of his youth and inexperience, known to be expressly and solely relying upon the judgment of the master, as was his right, not to be wrongfully exposed to an unreasonable risk or unnecessary hazard. Under and applicable to the state of facts set forth in these cited cases, this Honorable Court has reasoned, and we certainly think correctly so, that: (a) The tool being simple, an employee accustomed to its use (consequently experienced) has a knowledge and means of obtaining knowledge as to its true condition equal to that of the master; (b) For this reason it follows that there is then no obligation on the matter to inspect a simple tool; (c) For this same reason, it therefore further follows that a person accustomed to the use of the tool must necessarily appreciate the normal risks incident to its use if it be in a defective condition; and (d) Because usually such simple tools may be easily repaired by anyone and are, in fact, generally repaired by the employee, the actual user thereof.
With these reasons for the rule in mind, permit us to again refer to the facts of this case. This was the first occasion that the appellant had worked for appellees, and appellant, eager for the job, was naturally obedient and anxious to please; and, in the case at bar, the appellees knew they were dealing with, and responsible for the safety of, a minor employee actually known to them to be totally inexperienced and not accustomed to the use of such a tool.
As the declaration alleges, appellant did not fully understand or appreciate the dangers attendant upon the use of this tool in its battered, defective condition. Appellant did the reasonable thing required of him under these circumstances. He referred his question and his doubts to his superior, the only one upon whom he had a legal and moral right to rely and trust. An actual inspection was thereupon made by appellee, Guion, of the defective, battered wedge in the presence of this youthful, inexperienced employee. Appellant's superior, disregarding his duties, negligently acting (other than a reasonable, ordinarily prudent man should have acted under such circumstances), wrongfully assured appellant that he could safely work with the wedge. In other words, appellees were responsible for actively and negligently inducing appellant to encounter and to become subjected to an impending danger.
Marston v. City of Portsmouth, 78 N.H. 223, 99 A. 93.
Even in a case where there was no negligent assurance of safety, upon which the inexperienced employee relied, we note that the simple tool doctrine has no application because the injured employee was not accustomed to the use of the tool and cannot be legally deemed at fault for not appreciating and then eliminating the source of the danger from even a simple, obviously defective appliance.
30 L.R.A. (N.S.) 803, 804; Crilley v. New Amsterdam Gas Co., 106 App. Div. 127, 94 N.Y. Supp. 102; Standard Oil Co. v. Fordeck, 34 Ind. App. 181, 71 N.E. 163; Famous Mfg. Co. v. Harmon, 28 Ind. App. 117, 62 N.E. 306; Duerst v. St. Louis Stamping Co., 163 Mo. 607, 63 S.W. 827; Guthrie v. Louisville N.R. Co., 11 Lea 373, 47 Am. Rep. 286; Littlefield v. Edward P. Allis Co., 177 Mass. 151, 58 N.E. 692; Republic Iron Steel Co. v. Ohler, 161 Ind. 393, 68 N.E. 901; Chambers v. Woodbury Mfg. Co., 69 A. 290, 14 L.R.A. (N.S.) 383; Cooley on Torts, page 553; Brown v. Coley, 152 So. 61, 168 Miss. 778; J.J. Newman Lbr. Co. v. Cameron, 174 So. 571; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127.
Certainly this inexperienced, youthful darky appellant (known to the master to be inexperienced and to be then and there affirmatively relying upon and trusting the master to properly advise him) being negligently induced by the appellees to use this defective tool to his great loss and damage should not be, and is not in law, without redress.
R.R. Norquist, of Yazoo City, and Wynn, Hafter Lake, for appellees.
The wedge being a "simple tool," the law in this state relative thereto is as stated in Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228, where it was held that the rule that a master must exercise reasonable care to furnish his servant with safe tools and appliances is not applicable to "simple tools" where the servant possesses ordinary intelligence and knowledge.
Allen Gravel Co. v. Yarbrough, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Middleton v. Box Co., 38 F.2d 89.
The wedge in question being a simple tool, there was no duty on the part of the defendants, appellees here, to inspect the same, nor was it the duty of the appellees, or either of them, to warn the appellant in regard to the use thereof, and the allegation in the declaration to the effect that this wedge was exhibited to defendant Guion, who assured appellant that it was safe, imposes no additional duty, under the facts of this case, on defendant Guion. The defendants were not required to furnish a wedge which was safe and were not required to inspect the wedge which was furnished, and the fact, if it be a fact, that defendant Guion stated to appellant that, in his opinion, the wedge was safe, does not make a case of negligence against either of said defendants.
Nor will the alleged minority and inexperience of the appellant place him in a better attitude. The declaration does not allege that the appellant is a child of tender years, but does allege that he was of the age of seventeen years. The appellant was certainly of sufficient size and brawn to apply for a position as a common laborer in a log camp; therefore, the appellant stood and stands in the same attitude as an adult.
39 C.J., pages 283 and 507; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Air Line Ry. v. Hackney, 115 So. 869.
The allegation of the declaration to the effect that plaintiff was assured by defendant Guion that the wedge could be safely used, states no stronger case than would have been made by an allegation to the effect that the wedge was unsafe and furnished to the plaintiff.
Dobbins v. Lookout Oil Refining Co., 97 So. 546; Railroad Co. v. Price, 72 Miss. 862, 18 So. 415.
We call the attention of the court to the fact that appellant was not commanded to use the wedge, nor was he coerced into using the same.
Appellees at the time of the injury herein were engaged in cutting certain timber and converting same into cordwood for shipment. Appellant, who sues by next friend, was a minor seventeen years of age, wholly without experience in such work, or in the use of the tool which caused the injury; and those facts appellees knew. Appellees employed appellant as a laborer, and among the tools furnished him was a wedge which was worn down and battered. As appellant started to work, a fellow employee suggested to him that the wedge was not suitable for use and that another should be obtained. Appellant thereupon took the wedge to the foreman in charge, who stated that there was no other wedge available; and after inspecting the wedge, the foreman assured appellant that the wedge was sufficient and could be safely used. Appellant, relying on that assurance, proceeded to work and shortly thereafter, when the wedge was struck by appellant, as was necessary to be done in the course of the work, a sliver of steel flew therefrom and destroyed appellant's left eye.
Such further facts as were necessary to a clear presentation of the cause of action were set forth in the declaration and will be mentioned in the course of the following opinion. The demurrer of appellees to the declaration was sustained on the ground of no cause of action under the simple-tool doctrine. Appellant declined to amend; the action was dismissed, and the case is now before us on the sufficiency of the cause as stated in the declaration.
In the early days of the law when the lives of the people in matters of avocation were almost entirely concerned with the home, the farm, the herds, and to some extent, of course, with primitive transportation, the tools and implements used by the servant or laborer were the utensils of the kitchen, the crude plow, the hoe, the rake, the spade, the hatchet, the axe, the wedge, the maul, the saddle, the oxcart, and like implements of the simplest kind, used in the simplest way. The servant himself looked after the tools, made his own inspections, and repaired them when necessary or had it done under his own supervision. There was no occasion for any rules of law which would impose upon the master any duty or obligation in respect to them.
But as machinery and instrumentalities of a complicated nature were invented and came into use, and situations were thereby produced with which the servant could not adequately cope, in the construction, installation, location, maintenance, and repair of such instrumentalities, the rules of law arose, out of necessity, that the master should exercise reasonable care to furnish his servant with reasonably safe places to work, reasonably safe tools and appliances, and that the master should use reasonable care to keep them so.
But as these modern rules of obligation on the part of the master arose and became definitely established, they were made to apply only to the situations or conditions which furnished the reasons therefor, and therefore were not extended back to the simpler tools of earlier days and those similar thereto. Thus the common law of today, as declared in numerous decisions of this court, is that ordinarily the master is under no obligation of care in regard to the safety of simple tools, either in the furnishing thereof or in their maintenance and repair. Wausau Southern Lumber Co. v. Cooley, 130 Miss. 333, 94 So. 228; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Middleton v. National Box Co., D.C., 38 F.2d 89. Compare Parker v. Wood Lumber Co., 98 Miss. 750, 54 So. 252, 40 L.R.A. (N.S.) 832; Mitchell v. Brooks, 165 Miss. 826, 147 So. 660; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 475; Gulf, etc., R. Co. v. Graham, 153 Miss. 72, 117 So. 881; Laurel Mills v. Ward, 134 Miss. 447, 99 So. 11.
As noted from the above cases, as well as in the numerous cases in other jurisdictions, 18 R.C.L., page 564, note 11, the line of demarcation between what is a simple tool, and what is not, is often difficult to draw; the point beyond which the master's liability goes no further is sometimes hard to locate precisely. The historical development of the rule is an aid, of course, but always, modern conceptions of reason and justice, under modern legal standards, must be brought to bear. Of tools without any complications in their structure, and of such ordinary and every day use that any person of mature age, or of experience although not mature in years, and of normal intelligence, would have substantially as much knowledge as another and could use them in the ordinary and normal manner in which they are intended to be used without any probability of injury, without any more than a bare possibility of injury, it may be conclusively said the master has no liability. As to such tools the servant, if of mature age or of any experience, must depend upon his own judgment; must be his own inspector; and must take care as to repairs, doing this himself or having it done, or else getting another such tool, of which as is usually the case there are others of like kind within the ready reach or requisition of the servant.
But beyond what has just been said we do not think the rule of nonliability can be pressed. The law molds its rules in the light of the known characteristics of human nature, as it must do in order to be a system of justice rather than of injustice. The law takes notice, therefore, and requires employers to take notice, that an employee, who is of far less years than that which presupposes maturity and stamina of independent judgment, and who is without the experience which would compensate for the want of age, is not capable of the reflective and reasoning power, the distinct and deliberate full realization of danger, and the firm exercise of his own judgment as is expected of a mature grown man, and in such cases, and to the extent which is just and reasonable, employers must govern themselves accordingly. To hold a master to such a responsibility is in accord with a sound public policy and with good morals, is practicable and is reasonable; and where these four elements are found in complete combination, there the substantive common law is almost certain to be found also.
Here, according to the allegations of the declaration, admitted by the demurrer, the master knew of the youthfulness and immaturity of the employee; knew that he had no experience in the work and none in the use of the tool with which he was required to work; knew the dangerous condition of the tool and of its liability to produce injury, in the usual and normal use thereof; declined to furnish another, and assured the employee that the tool was safe; knew or is conclusively presumed to have known that such a youthful and inexperienced employee would accept and rely upon the judgment and assurance of the master as inexperienced youth is wont to do as regards those who are superior in position and experience, and the employee here did so rely. In such a case our opinion is that the master cannot avoid the consequences of the injury which his stated conduct and assurance has thus brought about.
In all the cases heretofore decided by this court in which the simple-tool doctrine was applied, the servant was either of mature years or of some experience. None of them, so far as we have been able to find, has applied that doctrine to a case such as we have now before us. Many expressions may be found, however, in some of the opinions in our previous cases which distinctly foreshadow what we are here holding. Cases in other jurisdictions, sufficiently in point upon the facts, sustain our conclusion. Duerst v. St. Louis Stamping Co., 163 Mo. 607, 621, 63 S.W. 827; Marston v. City of Portsmouth, 78 N.H. 223, 99 A. 93; Shadford v. Ann Arbor, etc., Ry. Co., 121 Mich. 224, 80 N.W. 30.
We think the demurrer should have been overruled.
Reversed and remanded.