McClaren v. United Shoe Machinery Co.

• Decision Date: 19 January 1909
• Docket Number: 736.
• Citation: 166 F. 712
• Parties: McCLAREN v. UNITED SHOE MACHINERY CO.
• Court: U.S. Court of Appeals — First Circuit

166 F. 712

McCLAREN v. UNITED SHOE MACHINERY CO.

No. 736.

United States Court of Appeals, First Circuit.

January 19, 1909

Alexander Lincoln (Sherman L. Whipple and Whipple, Sears & Ogden, on the brief), for plaintiff in error.

Walter Bates Farr, for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and DODGE, District Judge.

PUTNAM Circuit Judge.

The plaintiff in error was the plaintiff below, so we will call the parties here merely plaintiff and defendant. The plaintiff was injured while running a stitching machine used in the manufacture of shoes, which machine had been leased by the defendant to Weber Bros. Shoe Co. (being the defendant in No. 775, in which an opinion was passed down simultaneously herewith) 166 F. 714. Judgment was entered for the defendant in the Circuit Court, and thereupon the plaintiff sued out this writ of error.

The declaration as it came before us contained three counts. A contract entitled 'Lease and License,' between the defendant corporation, a manufacturer of shoe machinery, and Weber Bros. Shoe Co., a corporation manufacturing shoes, and employing the plaintiff, appears in the record, and is expressly made a part of the first count and therefore it may be referred to for the purposes of this case on demurrer.

The machine of which the plaintiff complains was covered by this contract.

The first count alleged that the defendant in this suit reserved control of the machines covered by the lease 'for the purpose of keeping them in suitable condition and repair ' It also alleged that the machine on which the plaintiff was working when he was injured was at all times since the making of the lease in a defective and dangerous condition--

'and that the defendant owed the plaintiff the duty not to provide or maintain for his use as an employe a machine which was not in proper condition or repair, and that he was injured by reason of the negligence of the defendant in providing and maintaining for his use an insufficient, improper, defective and dangerous machine.'

The second count undertakes to raise a special obligation on the part of the defendant by saying that it 'voluntarily undertook and promised the plaintiff to repair and place in suitable condition' the machine he was working on, and further, subsequently represented to the plaintiff that it had placed said machine in satisfactory condition and repair.

The third count seems to have been similar to the first count, except that it does not contain anything suggesting that there was any agreement between the defendant and the shoe company obliging the defendant to have or keep the machine in repair; but it apparently rests on an alleged broad rule that, having leased the machine to the plaintiff's employer, it was, merely because it had so leased the machine, under a duty as towards the plaintiff to have and maintain it in suitable repair, and that, not having done so, it was liable to the plaintiff for any injury arising therefrom.

The defendant demurred to each and all of the counts, and the Circuit Court sustained the demurrer.

The general rule is that there is no duty out of which any liability arises such as is claimed by the plaintiff. There are exceptional cases, nearly all of which are covered by the index to chapter 12 of Pollock's Law of Torts (6th Eng Ed....