Coin v. John H. Talge Lounge Co.

• Court: Missouri Supreme Court
• Writing for the Court: GANTT, P. J.
• Citation: Coin v. John H. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1 (Mo. 1909)
• Decision Date: 13 July 1909
• Parties: JOSEPH A. COIN v. JOHN H. TALGE LOUNGE COMPANY, Appellant

121 S.W. 1

222 Mo. 488

JOSEPH A. COIN v. JOHN H. TALGE LOUNGE COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 13, 1909

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Reversed.

M. U Hayden and Rusk & Stringfellow for appellant.

(1) The duty of the master to use ordinary care to furnish his servants with reasonably safe appliances is not a contractual obligation. It is a duty imposed by law. It arises by operation of law, because of the relation of master and servant, and not by virtue of the contract of employment. Gawne v. Bicknell, 162 F. 587; Obanheim v Arbuckle, 81 N.Y.S. 133; Dempsey v. Sawyer, 95 Me. 295; Louisville Hotel Co. v. Kaltenbrun, 80 S.W 1163; Stewart v. Harmon, 70 A. 335; Curtis v. McNair, 173 Mo. 280; Phippin v. Railroad, 196 Mo. 347; Hollenbeck v. Railroad, 141 Mo. 109; Rodney v. Railroad, 127 Mo. 684; Williams v. Railroad, 119 Mo. 322; York v. Railroad, 117 Mo. 412; Rutledge v. Railroad, 110 Mo. 319; Miller v. Railroad, 109 Mo. 357; Schaub v. Railroad, 106 Mo. 87; Steffen v. Mayer, 96 Mo. 423. (2) Having furnished Coin with the kind of machine customarily used by experienced men in the same line of business, defendant was in the exercise of reasonable care. Customary use among reasonably well-regulated concerns is the conclusive test of reasonable care. Berning v. Medart, 56 Mo.App. 449; Railroad v. Lonergan, 118 Ill. 41; Dooner v. Canal Co., 171 Pa. 598; Bldg. Wks. v. Nuttall, 119 Pa. St. 158; Richmond v. Ford, 94 Va. 640; Railroad v. Mauzy, 98 Va. 692; Breig v. Railroad, 98 Mich. 225; Minnier v. Railroad, 167 Mo. 119. (3) Since, therefore, the absence of a guard cannot be considered a defect, in what light can we consider this case that will disclose an obligation on the part of the Lounge Company to furnish a guard? The master is not bound to furnish the "safest" appliances or machinery. Grattis v. Railroad, 153 Mo. 404; Glover v. Meinrath, 133 Mo. 304; Steinhauser v. Spraul, 127 Mo. 562; Tabler v. Railroad, 93 Mo. 85; Porter v. Railroad, 71 Mo. 66; Cagney v. Railroad, 69 Mo. 416; Berning v. Medart, 56 Mo.App. 443; Brick Co. v. Sobkowiak, 45 Ill.App. 317; Logging Co. v. Schneider, 74 F. 195; Davis v. Augusta, 92 Ga. 712; Kent v. Railroad, 77 Miss. 494. Nor the best. Chrismer v. Tel. Co., 194 Mo. 189; Minnier v. Railroad, 167 Mo. 119; Friel v. Railroad, 115 Mo. 507; Payne v. Reese, 100 Pa. St. 301; Kennedy v. Coal Co., 200 Pa. St. 1; Railroad v. Orr, 84 Ind. 50; Strattner v. Elec. Co. (Del.), 50 A. 57; Burns v. Railroad, 69 Ia. 450; Kreider v. Pulp Co., 110 Wis. 645; Louisville, Etc., v. Clemonts (Ky.), 109 S.W. 308. Nor "to resort to the safest methods for its operation." Glover v. Meinrath, 133 Mo. 304; Payne v. Reese, 100 Pa. St. 306; Gowan v. Harley, 56 F. 982; Berns v. Coal Co., 27 W.Va. l. c. 300; Spencer v. Bruner, 126 Mo.App. 94. The master cannot be charged with negligence because a safer or less dangerous mode might have been adopted. Winkler v. Box Co., 137 Mo. 400; Glover v. Meinrath, 133 Mo. 304; Minnier v. Railroad, 167 Mo. 120; Smith v. Railroad, 69 Mo. 37; Wendell v. Railroad, 100 Mo.App. 561; Worheide v. Car Co., 32 Mo.App. 371; Conway v. Railroad, 24 Mo.App. 235; Muirhead v. Railroad, 19 Mo.App. 646. The master is not liable "because a particular accident might have been prevented by some special device or precaution not in common use." Minnier v. Railroad, 167 Mo. 119; Grattis v. Railroad, 153 Mo. 380; Augerstein v. Jones, 139 Pa. St. 183; Railroad v. Lonergan, 118 Ill. 50; Rosa v. Volkening, 72 N.Y.S. 236; Dooner v. Canal Co., 171 Pa. St. 605; Ross v. Cordage Co., 164 Mass. 257; Paper Co. v. Webb, 146 Ind. 316; Leonard v. Collins, 70 N.Y. 90; D'Arcy v. Railroad, 54 N.Y.S. 553. The master is not bound to supply his servants with appliances not in general use. Brands v. Car Co. (Mo.), 112 S.W. 511; Grattis v. Railroad, 153 Mo. 405; Coal Co. v. Hayes, 128 Pa. St. 294; Ship Bldg. Wks. v. Nuttall, 119 Pa. St. 149; Railroad v. Lonergan, 118 Ill. 50; Mfg. Co. v. Ballou, 71 Ill. 417; Sappenfield v. Railroad, 91 Cal. 48; Burns v. Railroad, 69 Ia. 450; Railroad v. Hall, 91 Ala. 112. "It is a well-settled rule that when an appliance or machine, not obviously dangerous, has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continued without the imputation of imprudence or carelessness." Sappenfield v. Railroad, 91 Cal. 48; Railroad v. McCormick, 74 Ind. 446; Coal Co. v. Hayes, 128 Pa. St. 294; Railroad v. Probst, 83 Ala. 518; Burke v. Witherbee, 98 N.Y. 562. When an injury cannot reasonably be anticipated and would not have happened except under exceptional circumstances, it is not negligence to fail to take precautionary measures to prevent it, although if taken the injury would not have resulted. Trigg v. Land Co., 187 Mo. 227; Glover v. Bolt Co., 153 Mo. 327; Am. Brew. Co. v. Talbot, 141 Mo. 683; Anderson v. Box Co., 103 Mo.App. 387; Wendell v. Railroad, 100 Mo.App. 559; Hewitt v. Flint, 67 Mich. 61; Robertson v. Ford (Ind.), 74 N.E. 3 (unguarded shaft). A master owes his servant no duty to furnish new appliances. Railroad v. Gormley, 27 S.W. 1051; Innes v. Milwaukee, 96 Wis. 173. The master is not obliged to make alterations or additions to secure greater safety, if the appliance furnished is reasonably safe. Brosman v. Railroad, 113 Pa. St. 500; Railroad v. Driscoll, 176 Ill. 334; Lemoine v. Aldrich, 177 Mass. 89; Jacobson v. Cornelius, 5 N.Y.S. 306; DeForest v. Jewett, 88 N.Y. 264; Gibson v. Railroad, 63 N.Y. 449; Sweeney v. Env. Co., 101 N.Y. 520. (4) At the time the alleged promise is said to have been given, no duty rested on defendant to furnish plaintiff a guard. A promise to repair, remedy or alter is not binding unless it rests on an omission of a duty. Leonard v. Herrman, 195 Pa. St. 222; Higgins v. Fanning, 195 Pa. St. 599; Nealand v. Railroad, 53 N.E. 137; Jones v. Railroad, 43 So. 813; Sweeney v. Berlin Env. Co., 101 N.Y. 520; Vogt v. Honstain, 83 N.W. 533; Gowan v. Harley, 56 F. 973; Webber v. Piper, 109 N.Y. 496; Marean v. Railroad, 167 Pa. St. 220; Railroad v. Turner, 23 S.W. 146; Belleville Stone Co. v. Mooney, 38 A. 835; U. S. Sugar Refinery v. Welcher, 123 Ill.App. 374. (5) The promise must have been the inducing motive which kept the servant at work and without which he would have quit. Otherwise the promise is not binding. Harris v. Bottum, 70 A. 287; Carlson v. Walsh, 67 N.Y.S. 516; Railroad v. Lash, 21 S.W. 563; Trotter v. Chattanooga Furn. Co., 47 S.W. 424; Int. Pkg. Co. v. Kasimir Kretowicz, 119 Ill.App. 488; Railroad v. Turner, 23 S.W. 146; Lewis v. Railroad, 153 Mass. 73.

James W. Boyd and C. F. Strop for respondent.

(1) The contention of appellant that the master frees himself from liability if he furnishes appliances usually in use or adopts rules in the management of the business such as are generally in vogue is not an unbending rule and does not apply if the employment is of an especially hazardous nature. Mather v. Rillston, 156 U.S. 391; Railroad v. McDaniels, 107 U.S. 454; Railroad v. Behymer, 189 U.S. 468. (2) It is not necessary that the servant in complaining of the defect, should have threatened to quit the master's employment, nor that he should have said in so many words that he apprehended danger to himself. It is sufficient that the servant was induced to remain in the master's service by reason of the promise, etc. Rothenberger v. N. W. Milling Co., 57 Minn. 461; Pieart v. Railroad, 82 Ia. 161; Yerkes v. Railroad, 112 Wis. 184; Thorpe v. Railroad, 89 Mo. 664. (3) Respondent was entitled to have had the jury pass upon the question of negligence on account of the defective rubber band and the improper alignment of the wheels. The trial court at the suggestion of the appellant erred in holding that it required specific proof upon the question that the injury was caused by such defect. The evidence showed that the danger of plaintiff's employment was greatly increased by these defects, and that plaintiff's injuries were reasonably and probably to be attributed to these defects. In this state of the evidence the question as to whether the defects actually caused the injury should have been submitted to the jury. Buesching v. Gaslight Co., 73 Mo. 230; Duerst v. Stamping Co., 163 Mo. 622; Hudson v. Railroad, 32 Mo.App. 676; Cambron v. Railroad, 165 Mo. 558; Coombs Co. v. Block, 130 Mo. 668; Settle v. Railroad, 127 Mo. 341; Longree v. Mfg. Co., 120 Mo.App. 494. (4) The attempted distinction between the agreement to furnish new appliances, and the agreement to remedy defective appliances, is without merit, has no real foundation to support it, and the great weight of authority, both of text-books and well-considered cases, sustains the position of respondent; nor does such special promise change the cause of action from one of tort to one of contract. 1 Labatt on Master and Servant, p. 1186; Cooley on Torts, sec. 559; 1 Shearman and Redfield on Negligence (5 Ed.), sec. 215, p. 374; 2 Bailey's Personal Injuries, sec. 3073, p. 1038, and sec. 3112a, p. 1055; Hyatt v. Railroad, 19 Mo.App. 294; Homestake Min. Co. v. Fullerton, 69 F. 929; Drop Forge and Fdy. Co. v. Van Dam, 149 Ill. 342; Brownfield v. Hughes, 128 Pa. St. 194; Brown v. Musser Sauntry, etc., Co. (Minn.), 116 N.W. 218; Shea v. Seattle Lumber Co. (Wash.), 91 P. 623; Anderson v. Fielding (Minn.), 99 N.W. 358; Barney Dumping Boat Co. v. Clarke, 112 F. 923; Phillips v. Michael (Ind.), 39 N.E. 669; Stephenson v. Duncan, 73 Wis. 404; Schlitz v. Pabst Brewing Co., 57 Minn. 303; Altham v. Schwab Mfg. Co., 104 N.Y.S. 349; Swift v. O'Neill (Ill.), 58 N.E. 417.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an action for damages from personal injuries received by the plaintiff, who was at the time an employee...