Jones v. Southern United Ice Co

• Decision Date: 30 October 1933
• Docket Number: 30775
• Citation: 167 Miss. 886,150 So. 652
• Court: Mississippi Supreme Court
• Parties: JONES v. SOUTHERN UNITED ICE CO

150 So. 652

167 Miss. 886

JONES v. SOUTHERN UNITED ICE CO

No. 30775

Supreme Court of Mississippi

October 30, 1933

Division B

1. MASTER AND SERVANT.

Common-law rule that master is not liable to servant for defects in simple tools held not changed by statute (Code 1930, sections 511, 513).

2. MASTER AND SERVANT.

Defective ice tongs held "simple tool," precluding employee engaged in use thereof for fifty-six days, and formerly working where similar tongs were used, from recovering for injuries against employer.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Suit by R. E. Jones against the Southern United Ice Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Nate S. Williamson and H. R. Stone, Sr., both of Meridian, for appellant.

The master owes the nondeligible duty to his servant to exercise ordinary care to provide his servant reasonably safe tools and appliances to work with. This rule is fundamental and has been announced by best authorities to be a general rule. This is one of the three cardinal doctrines of master and servant, requiring the master to furnish reasonably safe tools, a reasonably safe place to work and reasonably safe employees to work among.

Drake v. San Antonio Ry. Co., 99 Texas 240, 89 S.W. 407; St. Louis Ry. Co. v. Schuber, 102 S.W. 783; Gekus v. O. G. Ry. Navigation Co., 146 P. 970.

The employer's obligation of care extends as a general rule to all tools, machinery and appliances that may be furnished for the use of the employee in the discharge of his duties; and for any neglect of this duty the employee may hold the employer liable in damages.

18 R. C. L. 587; Parker v. Wood Lumber Co., 54 So. 252; Labatt on Master & Servant (2 Ed.), p. 2476, section 924 (a).

The language of sections 511 and 513, Code of 1930, is broad, seems to be all inclusive, and the only way to lift simple tools out from under these statutes is to take the extreme view taken by some courts, that the master owes no duty with respect to simple tools, a doctrine which we submit is in conflict with the well recognized rule requiring the master to use at least ordinary care to provide his servant with reasonably safe tools and appliances.

Our court has with great care limited the simple tool to such as are not only simple in their mechanism but are also simple in their use.

Wausau Lumber Co. Case, 94 So. 228; Sterling Coal & Coke Co. v. Fork, 141 Ky. 40; 40 L. R. A. (N. S.) 858.

The question to be determined is whether a heavy pair of ice tongs or hooks is a simple tool under our law. Webster's New International Dictionary defines complex as twisted or folded, composite, not simple. It defines simple as not mixed or complex, not complicated, without subdivision or branches, as a stem, having only one blade, or not compound as a leaf. It is opposed to compound. It is not enfolded, entangled or complicated.

Our court has held that a cant hook is not simple tool and in the case of Parker v. Wood Lumber Co., 54 So. 252, the court lists approvingly a number of tools laid down by authorities that are not simple, to-wit: chairs, hame straps, hammers, hooks, kettles, ladders, mauls, poles, ropes, etc. It seems to us that if these tools are not simple tools and a cant hook is not a simple tool, then by no stretch of the imagination that a pair of heavy ice tongs or hooks, to be used in lifting heavy blocks of ice, should be classed as a simple tool.

There is no proof in this record that the appellant here, the plaintiff below, knew anything about the use of these heavy ice tongs before he began working for the defendant, only a few weeks before, and there is no proof that the public generally understands and appreciates the dangers connected with the use of such tongs.

Neauber v. Railroad Co., 61 N.W. 912; Allen Gravel Co. v. Yarbrough, 98 So. 117; Laurel Mills v. Ward, 99 So. 11; Dupont Powder Co. v. Tyrone, 124 So. 77.

Dunn & Snow, of Meridian, for appellee.

Appellant's whole argument in his brief is a labored effort, first, to have this court overrule former decisions of the court, especially the cases of Wausau Lumber Company v. Cooley, 94 So. 228, and Allen Gravel Company v. Yarbrough, 98 So. 117, in which cases it was held that sections 511 and 513 of the Code do not effect the common law doctrine of simple tools. The correctness of the holdings in the two cases mentioned have been challenged several times since the cases were decided but the court has steadfastly adhered to the rule therein announced and we apprehend that even if the simple tools doctrine was properly involved in thise case the court would again turn a deaf ear to the appeal of the appellant to overrule the cases mentioned.

That an ice tong or garb is a simple tool is too plain for argument.

Argued orally by H. R. Stone, Sr., for appellant.

OPINION

Ethridge, P. J.

The appellant, Jones, was plaintiff in the court below, and brought suit against the appellee, the Southern United Ice Company, for personal injuries received by appellant while handling ice with ice tongs furnished him by the appellee. The suit was based upon alleged defects in the tongs which caused them to fail to take bold of the ice, and the ice to be dropped upon the appellant and injure him and necessitate expenditure of sums for bills of physicians and for medicine.

The case was tried in the county court, and proceeded for some time before a jury, but afterward it was agreed by counsel that the jury might be discharged and the case be tried by the judge alone. In rendering his opinion, the county judge stated that the ice tongs constituted a simple tool, and that there was no liability against the Southern United Ice Company, because the master was under no duty to furnish safe tools to employees.

The contention of the appellant was that he had shown the ice tongs to the foreman of appellee, stating that they were dull and would not properly take hold of ice, and that the foreman told him the tongs were all right for him to use. The appellant was thirty-nine years of age, and had been working for the appellee for fifty-six days, in a small icehouse where the appellee stored ice, and from which ice was sold to customers; the handling being done with tongs. On the occasion in question, the appellant was handling one hundred pounds of ice. The ice tongs consist of two pieces riveted together, and work on a pivot or rivet, the opposite ends from the handhold being bent and sharpened to a point, so that, by manipulation, the handhold on the tongs can be opened up and closed with enough force to make the sharp point thereon take hold of the ice and hold it while being taken to vehicles of customers.

The testimony for the appellee showed that the foreman saw no defect in the tongs, and that it was the custom of appellee to require employees to keep their tools in condition themselves. It was also shown in the testimony that ice tongs were in common use, and that many customers of appellee came to the icehouse for ice, and had tongs to convey it to their cars; and that the tongs furnished Jones had been purchased some thirty days before he was employed. These tongs had been used by the employee who preceded Jones, and this employee testified that the tongs, being new, were in a good condition when he turned them over to Jones.

Jones testified that he did not understand how to sharpen the tongs so as to make them effective in taking hold of the ice.

In the brief for the appellant, it is stated: "On this appeal to our supreme court, we desire to raise two questions First, Do sections 511 and 513 of the Mississippi Code of 1930 abrogate the common law simple tool doctrine? Second, Was the tool in question, a pair of...