Okla. Pipe Line Co. v. Perrymore
| Decision Date | 05 May 1942 |
| Docket Number | Case Number: 30113 |
| Citation | 190 Okla. 687,1942 OK 177,126 P.2d 518 |
| Parties | OKLAHOMA PIPE LINE CO. v. PERRYMORE, Adm'r. |
| Court | Oklahoma Supreme Court |
¶0 1. MASTER AND SERVANT--Duty of master to furnish safe tools and appliances--"Simple tool doctrine."
The duty of the master to exercise ordinary care to provide reasonably safe tools and appliances for the use of his servants does not apply where such tools are common tools of ordinary use, and the servant possesses ordinary intelligence and knowIedge of their construction and use.
2. SAME--Nonliability of master for injuries sustained by servant during use of common tool selected from stock of tools by servant or co-employee.
Where the master provides an adequate, accessible stock of common tools from which the servants can make a selection, and the imperfection or defect of a tool selected was, or ought to have been, apparent to the servant who selected the tool, the master is not responsible for injuries sustained by an employee during the use of such a tool, whether the sufferer be the servant making the selection, or a co-employee. Barnsdall Oil Co. v. Ohler, 48 Okla. 651, 150 P. 98.
3. TRIAL--Failure of proof entitling defendant to directed verdict.
Where plaintiff's evidence wholly fails to prove a cause of action against the defendant, a motion for a directed verdict in favor of defendant should be sustained.
Appeal from District Court, Haskell County; Wm. S. Hall, Judge.
Action by Guy Perrymore, administrator of the estate of Thomas F. Perrymore, deceased, against the Oklahoma Pipe Line Company for damages for injuries suffered by decedent. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
L. G. Owen, Forrest M. Darrough, Joseph L. Seger, and Harry C. Chapman, all of Tulsa, and W. G. Stigler, of Stigler, for plaintiff in error.
Nat Henderson, of Stigler, and W. P. Morrison and John Morrison, both of Oklahoma City, for defendant in error.
¶1 This is an appeal from a judgment rendered in the district court of Haskell county, in an action brought to recover damages for pain and suffering of Thomas F. Perrymore, deceased, allegedly endured by decedent during his lifetime, as the result of injuries sustained while in defendant's employee, and as the result of defendant's negligence. The present plaintiff was substituted in lieu of other named plaintiffs, deceased's next of kin.
¶2 Plaintiff was employed by defendant as a common laborer, May 27, 1928; while standing in a ditch holding a drill bar, the head of an eight-pound sledge hammer, used by one Fulcher in drilling powder holes, either came off or broke off the handle and struck the deceased on the head, causing the injuries complained of.
¶3 The negligence alleged to have caused the injury was the defendant's alleged failure to furnish deceased with safe tools with which to work; deceased, as alleged by plaintiff, having been injured by a blow from the hammer, which broke because of a defective handle, striking deceased on the head and causing his injuries.
¶4 Recovery was sought for (1) $20,OO0 for loss of earning capacity; (2) $10,000 for conscious mental pain and physical suffering; (3) $5,000 for expenses allegedly incurred for medical care and maintenance; (4) $40,000 for wrongful death of the decedent as a result of the injuries allegedly sustained.
¶5 Trial to a jury resulted in a verdict for plaintiff for $20,000. Motion for new trial was overruled, upon condition of a remittitur of $8,000. From this judgment defendant has appealed.
¶6 Numerous questions are raised by the briefs of the parties. However, having considered the entire record, we are of the opinion that it will be necessary to consider only one issue, viz., the application of the so-called "simple tool doctrine" to the facts of this case, inasmuch as we are of the opinion the application of this rule is decisive of the entire matter.
¶7 Because of the sharp conflict in the evidence, we shall briefly summarize the testimony concerning the injury. For the plaintiff the evidence showed substantially the following facts:
¶8 Anderson Smith, a blacksmith employed by defendant to repair tools used on the job, testified the hammer broke off at the eye, and that it had apparently been laid away damp, since it broke because of dry rot in the handle, and that the defect could be seen around the edge of the handle. He further testified it would take from six to eight months for ,this condition to develop.
¶9 R. E. Upton testified the hammer, which he saw after the accident, was broken because of a rotten, faulty handle. One Cox then testified he saw the accident; that it was customary for the men to check out their tools; that they were not ordered to make an inspection of their tools.
¶10 John Lefler testified that a few hours before the accident he saw Fulcher, the employee working with deceased at the time of the accident, hand the hammer to the foreman, who looked at it and then handed it back to Fulcher.
¶11 For the defendant the testimony was substantially as follows: Gus Fulcher testified he was working with deceased at the time of the accident, drilling powder holes in the ground, one man holding the drill and one using the sledge, it being customary for the men to alternate in the use of these tools. Just prior to the accident, deceased had been using the sledge. After they had traded places, on about the third blow, the hammer struck the bit, bounced off the handle, and struck the deceased. The employees selected their tools from a box each morning, and it was the practice to examine the tool selected. He had examined the hammer that morning, and it appeared sound to him, and the deceased had also examined the hammer before using it. The hammer did not break, but came off the handle, and after the accident the hammer appeared sound.
¶12 Warren Coffee, foreman, testified he instructed the employees to never use tools in a bad condition, and that when a tool needed repair for them to take same to the blacksmith shop. He had checked the tools from time to time, and had examined the tools more than once.
¶13 Plaintiff offered rebuttal testimony to the effect that there was a shortage of tools on this job, and that Fulcher had stated he did not like this particular sledge hammer because he was afraid of it, but was told by Coffee to go ahead and use it.
¶14 The foregoing is a sufficient statement to indicate that hereafter we are concerned only with the question whether, when an injury occurs because of an alleged defect in a tool such as was in use at the time of deceased's injury, the employer is liable upon the ground that there was a failure to furnish safe tools with which to work. This, then, resolves itself into a matter of determining whether what is commonly referred to as the "simple tool doctrine" applies in this particular case.
¶15 The "simple tool doctrine" is an exception to the general rule that the master owes a duty of exercising reasonable care in furnishing his employees reasonably safe tools and appliances to be used in the work for which they are intended. This exception is a rule which is applied in those instances when the tools furnished by the master are simple tools, of such a nature that any defect therein, by reason of the very nature of the tool itself, should be obvious to the servant and, when an injury results in the use thereof, the master is not liable.
¶16 In 35 Am. Jur. § 177 p. 607, the statement is found:
". . . The so-called 'simple tool' rule is based on the ideas that ordinarily the employee has better opportunity than the employer to observe defects and guard himself against them, and that the employer should not be charged with the duty to care for the safety of an employee with respect to a matter in which the employee is in the better position to care for himself."
¶17 This principle has been recognized by this court in numerous cases. In Ft. Smith & W. R. R. Co. v. Holcombe, 59 Okla. 55, 158 P. 633, the following statement is made:
¶18 In the earlier case of St. Louis & S. F. Ry. Co. v. Mayne, 36 Okla. 48, 127 P. 474, 42 L. R. A. (N. S.) 645, we laid down the rule that in cases of injuries resulting from the use of simple tools the master was not to be held liable, since the master was not bound to inspect such tools for defects; this for the reason that it is assumed that there is an equality of knowledge and ability .on the part of the master and servant to discover the defect, and, in fact, the servant probably has the better opportunity for discovery.
¶19 We have considered the application of this rule in the following cases. Chicago, R. I. & P. Ry. Co. v. Lillard, supra, where the servant was injured by a drill bit, declared to be a simple tool. Ft. Smith & W. R. R. Co. v. Holcombe, supra, where a maul caused the injury (although recovery was allowed on the ground that the master had actual notice of the defect and the servant had no knowledge of any defect). Woodruff v. Phillips, 138 Okla. 77, 280 P. 449, where the tool used was a hammer and punch. St. Louis & S. F. R. Co. v. Sears, 173 Okla. 483, 49 P.2d 489, where the injury was caused by a pick, but the servant was allowed to recover for the reason the master had promised to remedy the defect, and in this manner assumed the risk.
¶20 Consideration of these and other cases disclosed that the simple tool doctrine is firmly established in this jurisdiction. Further study reveals that no absolute distinction has been announced by this court in regard to the two schools of thought...
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