Potter v. Richardson And Robbins Company, a Corporation of State

• Decision Date: 26 January 1915
• Citation: 29 Del. 314,99 A. 540
• Court: Delaware Superior Court
• Parties: ANNIE POTTER v. RICHARDSON AND ROBBINS COMPANY, a corporation of the State of Delaware

99 A. 540

29 Del. 314

ANNIE POTTER v. RICHARDSON AND ROBBINS COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

January 26, 1915

Superior Court, New Castle County, January Term, 1915.

ACTION ON THE CASE, No. 79, March Term, 1914.

Action by Annie Potter against Richardson and Robbins Company to recover damages for personal injuries alleged to have been occasioned by negligence of defendant company. General demurrer to the three counts in the declaration. Sustained.

The questions on the legal sufficiency of the declaration appear from the opinion of the court.

Demurrer sustained.

Levin Irving Handy and Wilbur L. Adams for plaintiff.

Henry Ridgely and W. Watson Harrington for defendant.

PENNEWILL C. J., and HEISEL, J., sitting.

OPINION

PENNEWILL, C. J.

In this case the defendant has demurred generally to the three counts of plaintiff's declaration.

In the first count, it is alleged that the defendant is a corporation engaged in the business of canning poultry and other food stuffs, that plaintiff was employed in its factory at Dover to clean, and prepare the carcasses of chickens for canning, by drawing the entrails and cutting up the carcasses in pieces, that it was defendant's duty to furnish plaintiff with reasonably safe and sound carcasses of chickens to be cleaned and prepared by her, to be cooked and carved or packed or potted, yet that said defendant negligently and carelessly provided plaintiff with partially putrid, rotten, and decayed carcasses of chickens, that plaintiff had a scratch or cut in the middle finger of her left hand and became infected with blood poisoning by means of the poisonous substances which were in the carcasses of said chickens by reason of their partially putrid, rotten and decayed condition as aforesaid. In the second count there is an additional averment that the said carcasses of chickens had been before that time kept in cold storage, and under the circumstances it was defendant's duty to inspect or have inspection made of the said carcasses to discover whether they, or any of them, were putrid, rotten or decayed, or partially so. The third count is like the first with the additional averment that the said carcasses had before that time been kept in cold storage and that under the circumstances, defendant knew, or by the use of due care and diligence, could and should have known, that some of said carcasses of chickens were partially putrid, rotten and decayed, that plaintiff was ignorant of the unsanitary condition of said carcasses and of the danger in cleaning and preparing the same, and in consequence that it was the reasonable duty of the said defendant to the said plaintiff to warn her of the said partially putrid, rotten and decayed condition of said carcasses, and thereby, to warn her of the danger of the work of cleaning and preparing the same.

This statement of the plaintiff's cause of action as set out in the several counts of her narr. is sufficient for the purposes of the case now before the court.

The parts of each count material and pertinent to the questions raised by the demurrer may be more briefly stated as follows:

In the first count the breach of duty alleged is that the defendant company furnished plaintiff with partially putrid, rotten and decayed chickens to be cleaned and prepared by her for cooking and canning.

In the second count the allegation of breach of duty is the failure of defendant company to have a proper inspection made of the carcasses of the chickens after the same had been in cold storage.

In the third count the breach is averred to be the defendant's failure to warn the plaintiff of the condition of the carcasses, the same having been in cold storage, and of the danger of the work of cleaning and preparing them, she being ignorant of the same.

The first count is based upon the proposition that since the plaintiff was employed by the defendant to clean and prepare the carcasses to be cooked or potted by the defendant, it owed her the duty of furnishing and providing her with reasonably safe and sound carcasses of chickens to be cleaned and prepared. And since these chickens were to be prepared and to be put on the market for food for the public, the plaintiff had the right to rely upon the defendant to furnish her with only such carcasses as might be deemed fit for human food.

We think the plaintiff is here confusing the defendant's duty to an employee with the duty it owes its customers, the buyers of its goods, who can have no knowledge of the condition of the chickens before they are cooked and canned. The defendant's duty to the plaintiff cannot be measured by the fitness of the chickens for food. The carcasses were given to her only for the purpose of being prepared for cooking and canning.

This case presents but two questions of law, viz. :

1. Did the defendant exercise due care in furnishing to the plaintiff carcasses of chickens to be cut up and prepared?

2. Was the plaintiff guilty of negligence which proximately contributed to her injury?

We may say, the principles of law applicable to the questions raised by the demurrer are well settled by the decisions in this state, and there is no reason for the citation of authorities from other jurisdictions except for the differing language used by other courts.

It is a principle of law which will not be disputed, that the negligence of the master cannot be presumed from the mere fact that the accident happened, or the injury was sustained in the service of the master. It is incumbent on the servant to show that the injury was caused by the breach of some duty which the master owed the servant.

The question raised by the demurrer to each of the counts of the declaration are so similar and connected that they will be treated for the most part together, and not separately. We will say, however, in respect to the first count, that the care the defendant should have exercised in procuring and furnishing the carcasses for the plaintiff was reasonable and ordinary care, that is, such care as a reasonably prudent and careful person would have exercised in a like case, or under like circumstances. Such being the duty imposed upon the defendant, it cannot be held liable unless there was a failure to exercise such care. Mr. Thompson in his Commentaries on the Law of Negligence, Vol. 4, § 3774, says:

"In applying this doctrine of reasonable care, it is well held that a master is not liable for injuries to his servant resulting from an accident of such a character that reasonable men, proceeding with reasonable caution would not ordinarily have foreseen and anticipated it--such as an injury happening under very exceptional circumstances, although the proper precautionary measures, if taken, would have prevented it."

The general principles of law respecting the care to be exercised, and the duty to be performed, by the master for the protection of his servant are well settled in other states as well as our own. The following well-considered cases were cited by the defendant, viz.: Cowhill v. Roberts, 71 Hun 127, 24 N.Y.S. 533; Cotton v. Owensboro Wheel Co. (Ky.) 30 Ky. L. Rep. 183, 97 S.W. 763; Hobbs vs. Bowie & Terhune, 121 Ga. 421, 49 S.E. 285; Relyea v. Tomahawk Pulp & Paper Co., 110 Wis. 307, 85 N.W. 960; Goure v. Storey, 17 Idaho 352, 105 P. 794; Griffiths v. N. J. & N.Y. R. R. Co., 5 Misc. 320, 25 N.Y.S. 812; Karr Supply Co. v. Kroenig, 167 Ill. 560, 47 N.E. 1051; Wormell v. Maine Central R. R. Co., 79 Me. 397, 10 A. 49, 1 Am. St. Rep. 321; Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S.E. 614; Pennsylvania Co. v. Lynch, 90 Ill. 333; Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276, 37 Am. Rep. 684.

In the Supreme Court case of Amer. Bridge Co. v. Valente, 23 Del. 370, 7 Penne. 370, 73 A. 400, Ann. Cas. 1912D, 69, it was said:

"The duty of the master to give instructions to a servant is based upon the assumption that the master possesses some knowledge concerning the work and its dangers that the servant by reason of ignorance or inexperience does not possess. It is a general rule that a servant holds himself out as capble of doing the work he undertakes to do, and that he assumes the risks incident to the employment."

The court in the same case, quoting from Labatt on Master and Servant, § 463, says:

"So also, it is held, that no action is maintainable where the servant had, as compared with the master, an equal or better opportunity to see and know the extent of the danger. The law supposes every adult person to possess such ordinary intelligence, judgment and discretion as will enable him to appreciate any obvious danger. The master, therefore, has the right to assume that an adult employee possesses that knowledge which is acquired by common experience, that he knows everything which is a matter of common knowledge, or presumed to be within the common experience of all men of common education. That he understands those dangers which are the subject of common knowledge or which can be readily seen by common observation."

See also Punkowski v. Leather Co., 20 Del. 544, 4 Penne. 544, 57 A. 559, Boyd v. Blumenthal Co., 19 Del. 564, 3 Penne. 564, 52 A. 330; Creswell v. W. & N. R. R. Co., 18 Del. 210, 2 Penne. 210, 43 A. 629.

Under the facts set out in the plaintiff's declaration, and which we must now assume to be true, was the employment in which the plaintiff was engaged a dangerous employment, and one which the defendant knew or should have known to be dangerous?

It should be remembered that while the master is liable to the servant for an injury resulting from the master's negligence, he is not an insurer of the servant's safety neither is he bound to guard and protect...