Maher v. Wagner

• Citation: 62 S.D. 227,252 N.W. 647
• Decision Date: 01 February 1934
• Docket Number: 7522
• Parties: DAISY MAHER, Appellant, v. CHAULK R. WAGNER, Respondent.
• Court: Supreme Court of South Dakota

62 S.D. 227

252 N.W. 647

DAISY MAHER, Appellant,

v.

CHAULK R. WAGNER, Respondent. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. James McNenny, Judge #7522—Affirmed Haves & Hayes, Deadwood, SD Attorneys for Appellant. John R. Russell, John T. Heffron, Deadwood, SD Attorneys for Respondent. Opinion Filed Feb 1, 1934

RUDOLPH, Judge.

The plaintiff was employed by the defendant as a dishwasher in defendant’s restaurant. The defendant had not complied with the Workmen’s Compensation Law (Rev. Code 1919, § 9436 et seq., as amended). At the time the plaintiff first commenced her work, there was among the utensils in the kitchen an instrument for cleaning and washing dishes known in the evidence as a “chore girl.” This instrument was composed of a mesh of small copper wires and used for the purpose of removing food and grease from dishes and pans. The evidence disclosed that these instruments were sold throughout the Black Hills in grocery and hardware stores, and were in common use in the kitchens of homes and restaurants. The “chore girl,” when furnished by defendant was new, but because of its use was “pretty well crumpled down and was flat; it was mashed and had stickers.” About a week after the plaintiff went to work, she stuck one of the small copper wires of the “chore girl” into her finger and an infection resulted, which is the basis of this action. The case was tried to a jury, and the trial court submitted the question of negligence of the plaintiff to the jury, and by specific instructions denied to the defendant any defense of contributory negligence or assumption of risk on behalf of the plaintiff. The jury returned a verdict in favor of the defendant. The plaintiff has appealed, assigning as error the reception of certain evidence, which evidence appellant contends went to the question of the contributory negligence of the plaintiff, and was therefore inadmissible and prejudicial, section 9444, Rev. Code 1919, denying to the defendant the defenses of contributory negligence and assumption of risk.

In order to recover in this case, the plaintiff must establish actionable fault. Stevenson v. Douros, 235 N.W. 707. We are of the opinion that the evidence failed to establish any actionable fault on behalf of the plaintiff, and it follows, therefore, that the error complained of (if error) could not be prejudicial.

That the “chore girl” must be classified as a “simple tool” we think is without question. The tool is very simple; its condition may be seen at a glance; there is no complication whatever about it. See the following annotations: 13 LRA (NS) 668; 40 LRA (NS) 832; 51 LRA (NS) 337.

It is very generally held that an employee cannot predicate a cause of action based upon negligence against his employer, if he is injured from a defective simple tool. See Brown v. Swift & Co., 91 Neb. 532, 136 N.W. 726; Stevens v. Hines, 110 Wash. 579, 188 P. 917; Kilday v. Jahncke Dry Dock Co. (CCA) 281 F. 133; Royal v. White Oil Corp., 160 Ark. 467, 254 S.W. 819; Davis v. Plant (Sup.) 138 NYS 145; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Hedicke v. Highland Springs Co., 185 Minn. 79, 239 N.W. 896. In the case last above cited the Minnesota court was confronted. with a fact situation almost identical to, that which confronts us in, this case. In that case the plaintiff, while unloading wooden crates, ran a sliver into one of his fingers; infection set in, and injury resulted. The Minnesota law, as our section 9444, denied to an employer, who had failed to comply with the Workmen’s Compensation Law, the defenses of contributory negligence and assumption of risk. The Minnesota court held that there was no duty on the master to discover and remedy defects in simple tools, and that it followed that no neglect or failure of the employer to discharge some duty owing...