Koenekamp v. Picasso

• Decision Date: 31 July 1933
• Docket Number: No. 7322.,7322.
• Citation: 249 N.W. 749,61 S.D. 456
• Parties: KOENEKAMP v. PICASSO et al.
• Court: South Dakota Supreme Court

61 S.D. 456

249 N.W. 749

KOENEKAMP

v.PICASSO et al.^a1

No. 7322.

Supreme Court of South Dakota.

July 31, 1933.

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Albert Koenekamp, a minor, by Adolph Koenekamp, his guardian ad litem, against Lewis Picasso, Tony Picasso, John Picasso, individually, and as copartners doing business under the firm name of Picasso Brothers. From an order overruling a demurrer to plaintiff's complaint, defendants appeal.

Reversed.Boyce, Warren & Fairbank, of Sioux Falls, for appellants.

Leo M. Fitzpatrick, of Sioux Falls, for respondent.

RUDOLPH, Presiding Judge.

[1] The plaintiff seeks to recover damages on account of certain injuries received while employed by defendants. The trial court overruled a demurrer to the complaint, and the defendants have appealed, and have argued in this court only the sufficiency of the facts to state a cause of action. The appellants contend first that no actionable negligence on the part of the defendants is alleged. The complaint alleges that the plaintiff, a fourteen year old boy, was in the employ of the defendants, that the defendants had elected not to operate under the Workman's Compensation Law, and that the plaintiff, while in the employ of the defendants, was ordered by the defendants to oil and grease a certain stationary engine. Paragraph 8 of the complaint then alleges: “That said engine was, at the time and place aforesaid, being operated by the Defendants under very hazardous conditions by reason of the defective manner in which said engine was placed upon a platform without proper safeguards to prevent said engine from moving while in operation.” This, perhaps, is a sufficient allegation of negligence to comply with the rule that the complaint should contain allegations of the negligent acts or omissions of the defendants; however, nowhere in the complaint (which is voluminous and contains much surplusage) is there any allegation that defendants knew of the alleged defective installation, nor are there facts alleged from which it might be said that the defendants had constructive knowledge of such defective installation. “The master's liability for injuries to a servant arising from defects in the place for work, or in the machinery or appliances, is dependent upon his knowledge, actual or constructive, of such defects. If he knew or should have known, by the exercise of reasonable care and diligence, of their existence, he is liable, negligent ignorance being equivalent to knowledge, but if he had no knowledge of the defects in such working place or in the machinery or appliances and his ignorance was not the result of want of due care, he is not liable.” 39 C. J. 430.

[2] Neither is there any allegation in the complaint that the alleged defective installation of the engine was the...