Middleton v. Faulkner

Citation178 So. 583,180 Miss. 737
Decision Date07 February 1938
Docket Number32969
CourtUnited States State Supreme Court of Mississippi
PartiesMIDDLETON v. FAULKNER et al

Division B

1. MASTER AND SERVANT.

The master is ordinarily under no obligation of care in regard to safety of simple tools, either in furnishing or maintenance and repair thereof.

2. MASTER AND SERVANT.

A "simple tool," within rule exempting master from liability to servant for failure to exercise care with respect to furnishing, maintaining, or repairing "simple tools," is one which has no complications in structure and is of such ordinary use that any normally intelligent person of mature age or of experience would have substantially as much knowledge as another and could use tool in ordinary manner without incurring more than bare possibility of injury.

3. MASTER AND SERVANT.

A master's duty with respect to furnishing safe tools is greater where employee is immature and inexperienced.

4. MASTER AND SERVANT.

A declaration against master for injuries to servant caused by use of worn wedge stated a cause of action, where declaration alleged that servant was only seventeen years of age and wholly without experience, that master knew thereof, that foreman assured servant that wedge was safe, declining to furnish another, and that servant relied on foreman's assurance.

HON. R B. ANDERSON, Judge.

APPEAL from the circuit court of Warren county HON. R. B. ANDERSON Judge.

Action by Henry Middleton, Jr., by next friend, against Marion Faulkner and others, for personal injuries sustained while engaged in defendants' employment. From a judgment dismissing the action on demurrer, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Vollor & Teller, of Vicksburg, for appellant.

Our contention is that there is no legal magic in the "simple tool doctrine" which of itself exonerates all defendants of legal responsibility when an injury is occasioned while using a simple tool irrespective of all other independent, connected negligence otherwise imposing legal liability upon them. Our claim is that the "simple tool doctrine" extends no further than the reasoning responsible for its existence.

Jones v. Southern United Ice Co., 150 So. 652, 167 Miss. 886; Mitchell v. Brooks 147 So. 660, 165 Miss. 826; Allen Gravel Co. v. Yarbrough, 98 So. 117, 133 Miss. 652; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Warsaw So. Lbr. Co. v. Cooley, 94 So. 228, 130 Miss. 333; Parker v. Wood Lbr. Co., 54 So. 252, 98 Miss. 750, 40 L. R. A. (N. S. ) 832.

All of these cases, above cited, involved injuries to experienced, adult laborers, all of whom were accustomed to the use of the very tool causing their respective injuries. Further, there was therein no order or inducement from the master causing the employee, then and there, by reason of his youth and inexperience, known to be expressly and solely relying upon the judgment of the master, as was his right, not to be wrongfully exposed to an unreasonable risk or unnecessary hazard. Under and applicable to the state of facts set forth in these cited cases, this Honorable Court has reasoned, and we certainly think correctly so, that: (a) The tool being simple, an employee accustomed to its use (consequently experienced) has a knowledge and means of obtaining knowledge as to its true condition equal to that of the master; (b) For this reason it follows that there is then no obigation on the matter to inspect a simple tool; (c) For this same reason, it therefore further follows that a person accustomed to the use of the tool must necessarily appreciate the normal risks incident to its use if it be in a defective condition; and (d) Because usually such simple tools may be easily repaired by anyone and are, in fact, generally repaired by the employee, the actual user thereof.

With these reasons for the rule in mind, permit us to again refer to the facts of this case, This was the first occasion that the appellant had worked for appellees, and appellant, eager for the job, was naturally obedient and anxious to please; and, in the case at bar, the appellees knew they were dealing with, and responsible for the safety of, a minor employee actually known to them to be totally inexperienced and not accustomed to the use of such a tool.

As the declaration alleges, appellant did not fully understand or appreciate the dangers attendant upon the use of this tool in its battered, defective condition. Appellant did the reasonable thing required of him under these circumstances. He referred his question and his doubts to his superior, the only one upon whom he had a legal and moral right to rely and trust. An actual inspection was thereupon made by appellee, Guion, of the defective, battered wedge in the presence of this youthful, inexperienced employee. Appellant's superior, disregarding his duties, negligently acting (other than a reasonable, ordinarily prudent man should have acted under such circumstances), wrongfully assured appellant that he could safely work with the wedge. In other words, appellees were responsible for actively and negligently inducing appellant to encounter and to become subjected to an impending danger.

Marston v. City of Portsmouth, 78 N.H. 223, 99 A. 93.

Even in a case where there was no negligent assurance of safety, upon which the inexperienced employee relied, we note that the simple tool doctrine has no application because the injured employee was not accustomed to the use of the tool and cannot be legally deemed at fault for not appreciating and then eliminating the source of the danger from even a simple, obviously defective appliance.

30 L. R. A. (N. S.) 803, 804; Crilley v. New Amsterdam Gas Co., 106 A.D. 127, 94 N.Y.S. 102; Standard Oil Co. v. Fordeck, 34 Ind.App. 181, 71 N.E. 163; Famous Mfg. Co. v. Harmon, 28 Ind.App. 117, 62 N.E. 306; Duerst v. St. Louis Stamping Co., 163 Mo. 607, 63 S.W. 827; Guthrie v. Louisville & N. R. Co., 11 Lea 373, 47 Am. Rep. 286; Littlefield v. Edward P. Allis Co., 177 Mass. 151, 58 N.E. 692; Republic Iron & Steel Co. v. Ohler, 161 Ind. 393, 68 N.E. 901; Chambers v. Woodbury Mfg. Co., 69 A. 290, 14 L. R. A. (N. S.) 383; Cooley on Torts, page 553; Brown v. Coley, 152 So. 61, 168 Miss. 778; J. J. Newman Lbr. Co. v. Cameron, 174 So. 571; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127.

Certainly this inexperienced, youthful darky appellant known to the master to be inexperienced and to be then and there affirmatively relying upon and trusting the master to properly advise him) being negligently induced by the appellees to use this defective tool to his great loss and damage should not be, and is not in law, without redress.

R. R. Norquist, of Yazoo City, and Wynn, Hafter & Lake, for appellees.

The wedge being a "simple tool," the law in this state relative thereto is as stated in Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228, where it was held that the rule that a master must exercise reasonable care to furnish his servant with safe tools and appliances is not applicable to "simple tools" where the servant possesses ordinary intelligence and knowledge.

Allen Gravel Co. v. Yarbrough, 98 So. 117; Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Middleton v. Box Co., 38 F.2d 89.

The wedge in question being a simple tool, there was no duty on the part of the defendants, appellees here, to inspect the same, nor was it the duty of the appellees, or either of them, to warn the appellant in regard to the use thereof, and the allegation in the declaration to the effect that this wedge was exhibited to defendant Guion, who assured appellant that it was safe, imposes no additional duty, under the facts of this case, on defendant Guion. The defendants were not required to furnish a wedge which was safe and were not required to inspect the wedge which was furnished, and the fact, if it be a fact, that defendant Gulch stated to appellant that, in his opinion, the wedge was safe, does not make a case of negligence against either of said defendants.

Nor will the alleged minority and inexperience of the appellant place him in a better attitude. The declaration does not allege that the appellant is a child of tender years, but does allege that he was of the age of seventeen years. The appellant was certainly of sufficient size and brawn to apply for a position as a common laborer in a log camp; therefore, the appellant stood and stands in the same attitude as an adult.

39 C. J., pages 283 and 507; Roberts v. Pell City Mfg. Co., 72 So. 341; Seaboard Air Line Ry. v. Hackney, 115 So. 869.

The allegation of the declaration to the effect that plaintiff was assured by defendant Guion that the wedge could be safely used, states no stronger case than would have been made by an allegation to the effect that the wedge was unsafe and furnished to the plaintiff.

Dobbins v. Lockout Oil & Refining Co., 97 So. 546; Railroad Co. v. Price, 72 Miss. 862, 18 So. 415.

We call the attention of the court to the fact that appellant was not commanded to use the wedge, nor was he coerced into using the same.

OPINION

Griffith, J.

Appellees at the time of the injury herein were engaged in cutting certain timber and converting same into cordwood for shipment. Appellant, who sues by next friend, was a...

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