Arnold v. Doniphan Lumber Company

• Decision Date: 15 October 1917
• Docket Number: 165
• Citation: 198 S.W. 117,130 Ark. 486
• Parties: ARNOLD v. DONIPHAN LUMBER COMPANY
• Court: Arkansas Supreme Court

198 S.W. 117

130 Ark. 486

ARNOLD v. DONIPHAN LUMBER COMPANY

No. 165

Supreme Court of Arkansas

October 15, 1917

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Rachels & Yarnell, for appellant.

1. The allegations of the complaint must be taken as true upon demurrer. 101 Ark. 350.

2. The master is liable if, while in his employ, the servant is injured by the master's negligence. Act 175, Acts 1913 p. 734.

It is the duty of the master to exercise ordinary care in furnishing to his servant tools that are reasonably safe to perform the work for which the servant is engaged. 3 Labatt Master & Servant, 2462-2465; Sherman & Redfield on Negligence, § 194 et seq.; 105 Ark. 392; 117 Id. 524; 99 Id. 265; 121 Id. 511; 81 Id. 598; 82 Id. 82; 48 Id. 347; 87 Id. 399; 56 Id. 206; 14 Am. & Eng. Ry Cas. 209; 11 Lea (Tenn.) 372.

The tools were defective and improper and unsuited to the work to which they were put.

The master knew, or should have known, this; the servant did not, hence he was liable.

Brundidge & Neelly, for appellee.

1. A hatchet is a simple tool, and any defect was as obvious to appellant as to appellee, and any risk or damage in the use of same was assumed by the appellant; the defect, if any, was apparent. The rule of the cases cited by appellant does not apply. 57 Ark. 503; 7 Am. & Eng. Ann. Cas. 339, and cases cited.

2. Another qualification of the master's liability indulged in case of such simple tools and appliances is exemption from duty to inspect. 98 Me. 353; 57 A. 85; 118 Mich. 275; 76 N.W. 497; 126 N.Y. 568; 76 N.W. E. Rep. 952; 110 Wis. 85; N.W. 960, and notes; 7 A. & E. Ann. Cas., p. 342; 98 Mo.App. 555; 72 S.W. 710; 138 Ind. 290; 37 N.E. 722; 46 Am. St. 384. See also 68 N.E. 936; 93 N.E. 1083; 104 N.W. 577.

OPINION

SMITH, J.

Appellant sued to recover damages to compensate a personal injury sustained by him, and alleged substantially the following facts as constituting his cause of action. He was directed by his foreman to tear down a certain wire fence and replace it with a plank fence. For the purpose of drawing out the staples fastening the wire to the posts, he was furnished two hatchets, one of which he was directed to place against the point or edge of the staples and to drive the hatchet for a sufficient distance under the staple to force it from the post. That the hatchets were cheap and of poor construction and unfit for the use and purpose to which plaintiff was instructed and expected to put them, "in that the heads or parts of said hatchets that struck together were so tempered and hardened that they were liable to break off, splinter and sliver when struck against each other," and that the defendant knew, or should have known, of the condition of the hatchets, whereas plaintiff did not know that the hatchets were unsafe and improper tools, as he was unaccustomed to do such work, and relied upon the defendant to furnish him safe and proper tools.

A demurrer was interposed and sustained, and this appeal has been prosecuted to reverse that action.

To sustain the action of the court below, attorneys for appellee invoke what they call, and what is commonly called, the "simple tool" doctrine. This doctrine, as such, has never had recognition by this court; yet the principles upon which that doctrine is based have been recognized in a number of decisions of this court. That is, the simplicity of a tool, and the skill or lack of it required in its use, have been treated as questions to be considered in determining the degree of care to be used by the master in the selection of such tools for the purposes of his servant, and of the directions and instruction which should be given the servant in its use. Two recent cases discuss the principles upon which the simple tool doctrine is predicated. These are C., R. I. & P. Ry. Co. v. Smith, 107 Ark. 512, and Fordyce Lumber Co. v. Lynn, 108 Ark. 377, 158 S.W. 501. Both of these cases were exhaustively briefed, as appears from the official report thereof.

In the first of these cases we said that there is no hard and fast rule that may be laid down as governing the liability of the employer for a defect in common tools and that we should not undertake to lay down any general rule determining what state of facts the rule of liability should embrace and what state of facts it should not embrace. In that case the undisputed evidence showed that the hammer with which the servant was injured was an eight-pound sledge hammer, which had an imperfect striking face, and was in a defective condition when considered with reference to the uses for which it was intended, and we said that, under the evidence of that case, the jury was warranted in finding that the master was negligent in furnishing this tool to the servant who used it, the injured servant not having been permitted to make his own selection of the tools to be used by himself alone.

In the case of Fordyce Lumber Co. v. Lynn supra, the injury to the servant was occasioned by the breaking of a stick in the use of which the servant was employed at the time of his injury. In holding that there was no liability under the facts of that case, we quoted with approval from the case of Gulf C. & S. F. R. Co. v. Larkin, ...