Okla. Portland Cement Co. v. Shepherd
| Decision Date | 22 December 1914 |
| Docket Number | Case Number: 3678 |
| Citation | 147 P. 1031,47 Okla. 258,1914 OK 657 |
| Parties | OKLAHOMA PORTLAND CEMENT CO v. SHEPHERD. |
| Court | Oklahoma Supreme Court |
¶0 1. MASTER AND SERVANT--Safe Appliances--Duty of Master. The general rule that the master owes to his servant the duty to keep an appliance used by the latter in order, and that he cannot delegate the duty so as to escape responsibility, does not apply to defects arising in its daily use, which are not of a permanent nature and do not require the help of skilled mechanics to repair, but which may easily be, and are usually, remedied by the workmen, and to repair which proper and suitable materials are furnished.
2. SAME-- Injury to Servant--Negligence of Fellow Servant. In a suit in damages for personal injuries, where the evidence disclosed that plaintiff was an employee in the packing department of defendant's cement plant, that the employees in the sacking department were charged with the duty of repairing the sacks used in the packing department, and were furnished suitable material for that purpose, and where it was the duty of plaintiff to tie the sack in question after it had been filled at a chute and passed to him by another employee, and where in so doing, owing to the failure of the employees in the sacking department to repair two holes near the top of the sack, two jets of hot cement escaped therefrom, owing to plaintiff's weight upon the sack, and struck him in the eyes and injured him, held, that plaintiff and the employees charged with the duty of repairing the sack were fellow servants, and that a demurrer to the evidence should have been sustained.
Currie & Duncan and Blanton & Andrews, for plaintiff in error.
Conway O. Barton, R. C. Poland, and Wolfe, Maxey, Wood & Haven, for defendant in error.
¶1 On December 7, 1909, C. W. Shepherd, defendant in error, in the district court of Pontotoc county, sued the Oklahoma Portland Cement Company in damages for personal injuries. After alleging the corporate existence of defendant, and that at the time of the injury complained of it was engaged in the manufacture of cement at Ada; that on August 5, 1909, plaintiff was in its employ as a packer in its packing department, which was a part of its cement plant at that place--the petition substantially states that while so employed it was his duty to receive from a fellow servant sacks of cement, which he had filled from a spout in that department, and to tie and truck them into a car; that the sacks so used were inspected and repaired in another part of the plant called the sacking department, and were delivered empty by the sacking crew to the packing crew with which he worked; that on said date while so engaged, and while he was in the act of pressing down, in the usual way, upon the cement in a sack so filled, preparatory to tying and removing the same, jets of hot cement shot from two holes in the sack he was using, one of which struck him in the eyes and injured him. He charged that defendant, by the exercise of ordinary care, could have known of the existence of the holes; that his injury was the result of defendant's negligence in failing to inspect and in delivering to the packing crew for use said sack in that unsafe condition; that he was unaware of the holes, and could not have ascertained their existence by the use of ordinary care, wherefore he prayed damages, etc. After demurrer to the petition was filed and overruled, defendant answered, in effect, a general denial. Defendant also pleaded assumption of risk, and that the negligence, if any, complained of was that of a fellow servant. There was trial to a jury, and judgment for plaintiff for $ 1,100, and defendant brings the case here. Assuming the sufficiency of the petition, as the evidence discloses the injury to have resulted from the negligence of a fellow servant, the demurrer thereto should have been sustained. There is no dispute as to the facts. The evidence discloses that on the day of the injury, defendant was engaged in making portland cement from rock, that its manufacturing department was situate on one side of two railroad tracks and, when made, the cement was conveyed across the tracks to defendant's storeroom and thence to its packing department, of which one Holeman was foreman, where it was placed in sacks furnished from its sacking department, of which Emry was foreman, and that these last two departments connected by an open door. The evidence further discloses that one Curtis was general foreman in charge of the entire plant, and received his orders from one Rodarnel, who received his orders from one Whitaker, defendant's superintendent. It was the custom of defendant to purchase a large number of these sacks and fill them, and, after selling the cement, the customer would return the sacks. They were then all placed in the sack department, where a crew of hands assorted them and placed those without holes in one pile, those with small holes in another, and those with large holes in a third. They were then turned and beat, and those with small holes were patched by using portions of the worthless sacks and a quantity of glue. The sacks were then placed at a point where they could be had by the packers. The defendant always had on hand plenty of sacks, and no complaint was ever made that defendant did not furnish a sufficient quantity of glue and material to make the necessary repairs. The evidence further discloses that when the cement is first made it is run into the storeroom and thence conveyed into the packing room and, when not permitted to lay in the storeroom for several days before sacking, contains considerable mechanical heat, and is fine and dusty. Such was its condition at the time of the injury complained of. After passing from the storeroom into the packing room the cement is there automatically weighed through a chute from which it is dumped into a sack held at the mouth of the chute. At each of these chutes worked a crew of three men. The duty of one was to fill the sacks from the chute and pass them to another crew to be tied. At the time of the injury plaintiff, as one of such crew, received a sack filled with hot cement and, after shaking it down, prepared to tie it by folding the sack at the mouth and placing his weight upon it. In doing so jets of hot cement shot from two holes near the mouth of the sack, one of which struck him in the eyes and injured him. Neither the allegation nor the proof discloses that it required any particular skill to repair the sacks, or that defendant was negligent in selecting competent help so to do. The case was won on the theory that defendant was chargeable with the act of the sack repairers in furnishing for plaintiff's use this sack in its defective condition because, it was urged, the same was an appliance and, being such, it was the duty of the defendant to use reasonable care in maintaining it in proper repair; that such duty, being nondelegable, made of the sacking crew, to whom such duty was intrusted by defendant, vice principals for whose negligence in failing so to do the defendant is liable. Such was the view of the court. The court erred. The sacking crew, to whom the duty of inspecting and repairing the sack was intrusted, were fellow servants of the plaintiff. In 1 Bailey's Personal Injuries (1st Ed.), after declaring the general rule to be that the master owes to his servants the personal duty to exercise reasonable care to keep and maintain appliances furnished for their use in proper repair and that, if such duties are negligently performed and thereby the servant is injured, the master is...
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