Olson v. Kem Temple, Ancient Arabic Order of the Mystic Shrine, 7157

• Decision Date: 17 June 1950
• Docket Number: No. 7157,7157
• Citation: 77 N.D. 365,43 N.W.2d 385
• Parties: OLSON v. KEM TEMPLE, ANCIENT ARABIC ORDER OF THE MYSTIC SHRINE.
• Court: North Dakota Supreme Court

Page 385

43 N.W.2d 385

77 N.D. 365

OLSON v. KEM TEMPLE, ANCIENT ARABIC ORDER OF THE MYSTIC SHRINE.

No. 7157.

Supreme Court of North Dakota.

June 17, 1950.

Rehearing Denied July 15, 1950.

Syllabus by the Court.

1. A gratuitous employee is one who undertakes to do a service for another at the other's request but without consideration.

2. The statutory provision that 'An employer, in all cases, shall indemnify his employee for losses caused by the former's want of ordinary care.' (Sec. 34-0203, RCND 1943) is applicable in the case of a gratuitous employee as well as an employee for reward, and in determining the employer's liability the same rule applies as in the case of master and servant.

3. Where a tool or appliance is simple in construction and a defect therein is discernible without special skill or knowledge and the employee is as well qualified as the employer to detect the defect and appraise the danger resulting therefrom the employee may not recover damages from his employer for an injury due to such a defect that is unknown to the employer.

4. An ordinary portable stepladder is a simple tool or appliance that falls within the 'simple tool' doctrine which constitutes an exception to the general rule that an employer is bound to use ordinary care to furnish his employees with reasonably safe and proper tools and appliances with which to work.

Burtness & Shaft, Grand Forks, attorneys for plaintiff and appellant.

Day, Lundberg, Stokes, Vaaler & Gillig, and Philip R. Bangs, all of Grand Forks, attorneys for defendant and respondent.

MORRIS, Judge.

The plaintiff seeks to recover damages for personal injuries received by him in falling from a ladder while decorating the interior of a pavilion at the fair grounds in Grand Forks, N. D., preparatory to a social function given by the defendant. The jury rendered a verdict for the plaintiff, whereupon the defendant made a motion in the alternative for judgment notwithstanding the verdict or for a new trial. The trial court granted the motion for new trial 'on the ground that the evidence is insufficient to support the verdict in that the evidence does not show that the defendant was negligent, or that the plaintiff was free from contributory negligence;'. The plaintiff appeals from the order granting the new trial.

The main part of the pavilion where the accident occurred is a dance floor about 100 feet in length and 60 feet wide. It is located some distance from the meeting place and headquarters of the defendant where its paraphernalia and property are kept. The stage director of the defendant arranged for the plaintiff and four other members of the defendant corporation to do the decorating. They went to the pavilion about six o'clock on the morning of July 10, 1948. There was no one at the pavilion to direct them and they arranged by consultation among themselves how the work was to be done. There was a wire running lengthwise through the center of the building from 15 to 16 feet above the floor. A part of the decorating scheme required paper streamers to be run from the sides of the building to this wire. The stage director had caused a stepladder to be taken from the defendant's property room to the pavilion to be available for the use of the decorators. The plaintiff set this ladder up under the wire and while attaching paper streamers to the wire he fell from the ladder and was injured.

The ladder had been given to the defendant by one of its members some fifteen years before the accident. It was kept in and about the defendant's property room and had been put to various uses including that of cleaning windows. It was described by two witnesses as 'rickety'. It was of light construction and weight. It had been repaired from time to time by laying it down on its side and tightening up the nails and screws so as to make it more rigid. The steps fitted into grooves. It was fourteen feet in length when folded and somewhat less than that when set up with the supports extended. A cross brace between and near the bottom of the two supports had been missing for a number of years but its absence does not appear to have contributed to the accident.

When the plaintiff set up the ladder under the wire he saw to it that the ladder was level on all four legs. He saw nothing that would cause him to think that it was unsafe. He is six feet one inch in height. The wire was about a foot and a half above the ladder. The plaintiff ascended until the wire was about shoulder height. He then attached some streamers, descended and moved the ladder along under the wire, then ascended again and attached more streamers. He repeated this process eight or ten times over a period of an hour prior to the accident. As he moved the ladder along under the wire he found that it was higher near the center of the building. When he ascended the last time he stepped up one step higher than he had been before. The step tipped and he fell to the floor and was injured. The plaintiff had never used the ladder prior to the morning of his injury but had seen it in the defendant's property room. In his use of the ladder the plaintiff placed his hands on the sides as he ascended and descended. There is no evidence that anyone noticed that a step was loose or would tip prior to the accident. When one of the plaintiff's fellow workers picked up the ladder after the accident he noticed that the second or third step from the top could be titled back and forth. It does not appear whether this is the step that caused the plaintiff's fall or whether it was one higher up. None of the plaintiff's fellow workers saw the beginning of his fall. There is no substantial conflict in the evidence.

The plaintiff was requested to perform certain services for the defendant with materials, tools, and appliances furnished by the defendant's authorized representatives. The plaintiff was injured while performing services that he had agreed to perform for the benefit of the defendant. The services were gratuitous. Our statutory law recognizes but does not define a gratuitous employee. Sec. 34-0204, RCND 1943. It is clear that this statute contemplates that one who undertakes to do a service for another at the other's request but without consideration is a gratuitous employee while engaged in the performance of such service. Sec. 34-0203, RCND 1943 provides that 'An employer, in all cases, shall indemnify his employee for losses caused by the former's want of ordinary care.' This provision is applicable in the case of a gratuitous employee as well as an employee for reward. The plaintiff was a gratuitous employee acting within the scope of his employment at the time he was injured. Under the circumstances here presented the same rules of liability apply as in the case of master and servant.

It is the general rule that an employer is bound to use ordinary care to furnish his employees with reasonably safe and proper tools and appliances with which to work. Meehan v. Great Northern Railway Company, 13 N.D. 432, 101 N.W. 183; Prefontaine v. Great Northern Railway Company, 51 N.D. 158, 199 N.W. 480; 35 Am.Jur., Master and Servant, Sec. 138 and 175; 56 C.J.S., Master and Servant, Sec. 206. This rule of general liability is subject to a widely recognized exception. Where the tool or appliance is simple in construction and a defect therein is discernible without special skill or knowledge, and the employee is as well qualified as the employer to detect the defect and appraise the danger resulting therefrom the employee may not recover damages from his employer for an injury due to such a defect that is unknown to the employer. Varied and extensive application of the 'simple tool' doctrine is disclosed by these authorities 35 Am.Jur., Sec. 143; 56 C.J.S., Master and Servant, Sec. 216; Labatt's Master and Servant 2nd Edition, Sec. 924 a; Vanderpool v. Partridge, 79 Neb. 165, 112 N.W. 318, 13 L.R.A., N.S. 668, and note. Annotations on the ladder as a simple tool are found in 13 L.R.A., N.S., 687; 145 A.L.R. 542; and 40 L.R.A., N.S., 832.

The great weight of authority is to the effect that an ordinary portable stepladder is a simple tool or appliance within the meaning of the simple tool doctrine. Kelley v. Brown, 262 Mich. 356, 247 N.W. 900; Nichols v. Bush, 291 Mich. 473, 289 N.W. 219; Mozey v. Erickson, 182 Minn. 419, 234 N.W. 687; Person v. Okes, 224 Minn. 541, 29 N.W.2d 360; Hall v. United States Canning Company, 76 App.Div. 475, 78 N.Y.S. 617; McGill v. Cleveland and Southwestern Traction Company, 79 Ohio St. 203, 86 N.E. 989, 19 L.R.A., N.S., 793; 128 Am.St.Rep. 705; Roper v. Ware Shoals Manufacturing Co., 139 S.C. 48, 137 S.E. 210.

In Etel v. Grubb, 157 Wash. 311, 288 P. 931, the Supreme Court of Washington refused to apply the simple tool doctrine in a stepladder case. In Puza v. C. Hennecke Co., 158 Wis. 482, 149 N.W. 223; the court held that a stepladder was a place to work and declined to apply the simple tool doctrine. We agree with the majority of courts that an ordinary portable stepladder is a simple tool or appliance and that the employee who uses it is usually as well qualified to detect any defect therein as is the employer who furnishes it.

The ladder in question may have been somewhat longer than the average stepladder but it was otherwise of usual construction and there is no intimation that the height of the ladder in any way contributed to the accident. The plaintiff was several steps from the top when he fell. He set up the ladder in the first instance and ascended and descended some eight times over a period of about an hour prior to the accident.

Much stress has been laid on the testimony that the ladder was 'rickety', or as one witness states 'wobbly', and had been in that condition for a number of years. None of the witnesses testified that knowledge of this condition was acquired through special inspection or any unusual examination. The inference is that the rickety...