Proctor v. Town Club, Inc

• Citation: 141 P.2d 156,105 Utah 72
• Decision Date: 20 September 1943
• Docket Number: 6489
• Court: Supreme Court of Utah
• Parties: PROCTOR v. TOWN CLUB, Inc

141 P.2d 156

105 Utah 72

PROCTOR v. TOWN CLUB, Inc

No. 6489

Supreme Court of Utah

September 20, 1943

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Personal injury action by Harry Proctor against Town Club, Inc. From a judgment for plaintiff, after defendant's motion for directed verdict was overruled, defendant appeals.

Judgment reversed and cause remanded with directions.

Judd Ray, Quinney & Nebeker and Beverly S. Clendenin, all of Salt Lake City, for appellant.

F Henri Henriod, of Salt Lake City, for respondent.

McDONOUGH Justice. WOLFE, C. J., LARSON and MOFFATT, JJ., and WM. L. HOYT, District Judge, concur. PRATT, J., on leave of absence.

OPINION

McDonough, Justice.

Appellant Town Club, Inc., seeks reversal of a judgment entered on a verdict in favor of Harry Proctor for personal injuries sustained by him on February 14, 1941.

Proctor was an interior decorator for a number of years prior to the time he was injured. He did painting, paper-hanging and decorating. He also installed drape rods and hung drapes. About two months before the injury hereinafter mentioned, he installed some drape rods for defendant. On February 14, 1941, he was called to the Town Club house in Salt Lake City to install some additional drape rods preparatory to hanging some drapes. He was admitted to the premises of defendant by the maid, who advised him as to where the rods were to be placed. He carried with him only hand tools. When he asked for a step-ladder, he was informed by the maid that the ladder was in the garage. On the previous occasion when he hung drapes he was furnished the use of the same stepladder. Proctor charged by the hour for his services, but he determined his own methods for installing the rods.

By his complaint he alleged that the stepladder was defective, that the defective condition was unknown to him, although known to defendant or that such defects could have been known to defendant by the use of reasonable and prudent care in making proper inspection of the ladder; that while he was in the exercise of due care, on the top of said ladder and while performing the service of installing such drape rods, said ladder spread and collapsed, causing him to be thrown to the floor; and that as a result of such fall he suffered injuries for which he prayed damages.

There appears to be no dispute as to the fact that plaintiff sustained injuries by being thrown to the floor by the spreading of the ladder while he was on the top step. Appellant does not deny the alleged injuries nor the resulting disability, but contends that there is no competent proof of any negligence on the part of defendant which as a matter of fact or of law could have been the proximate cause of the fall which produced the injuries. It pleaded assumption of risk and contributory negligence as well as a denial of negligence on its part. Appellant contends that the trial court erred in refusing to direct a verdict in its favor.

Plaintiff testified that he was familiar with stepladders generally; that he had used many of them in his work during a period of approximately 25 years; that he always made an examination of a ladder before using it; that in December, 1940 he had used this same ladder and it did not break; and that he examined it on the date the injuries occurred, prior to getting upon it. He testified that he first examined the brackets in the steps--the iron supports extending from one side of the ladder to the other; and that he examined the ladder "to see how it wiggles and shakes." He declared that it was apparently in good condition, and that he did not find anything wrong with it, nor see any reason why he should not use it. He had a rod 6 feet 8 inches in length to set, so he placed the ladder first at one side of the archway, and then at the other side to put up the two end brackets. On both of these occasions he got on top of the stepladder and installed the brackets, and then moved the ladder to the center of the archway to install the middle one. He was on top of the ladder for the third time and in the process of completing the installation of the center drape rod support, when the ladder suddenly spread and collapsed, throwing him to the floor and causing the complained of injuries. He made no examination of the ladder after he fell.

There was some conflict in the testimony as to whether a ladder produced in court by defendant was the ladder used on that occasion by plaintiff. The ladder exhibited was one which a witness for defendant testified she used in washing windows and that it was the only one on the premises; and that after plaintiff fell, the defendant procured a new one. The ladder produced in court showed the connecting metal strap between the two hinged parts had become disconnected because some screws which fastened it at one end pulled out in some manner. Admittedly, defendant had not, prior to the collapse of the ladder, made any inspection of it.

Whether or not defendant was guilty of some actionable negligence depends, of course, upon what duty of care was owing the plaintiff under the circumstances. Appellant takes the position that though it be held that respondent was its servant at the time of the injury (which it denies), nevertheless, under the "simple tool and appliance" rule, which it contends is applicable here under the recited facts, no actionable negligence is shown. Its position on this phase of the case is well expressed in the case of Newbern v. Great Atlantic & Pacific Tea Co., 4 Cir., 68 F.2d 523, 525, 91 A. L. R. 784:

"It is well settled that, while it is the duty of the master, in exercise of reasonable care for the safety of the employee, to see that machinery and appliances which may cause injury to him are in reasonably safe condition, this duty does not ordinarily exist with respect to simple tools from the use of which no danger is reasonably to be apprehended or as to which the employee is in a better position than the master to discover defects. [Cases cited.] This is true, not because the employee assumes the risk of injury from defects in such tools, but because the possibility of injury is so remote as not to impose upon the master the duty of seeing that they are free from defects in the first instance or of inspecting them thereafter. The fact that the employee has better opportunity than the master to judge of the defects of such tools, that no inspection is necessary to discover such defects, and that no danger is to be apprehended which the employee cannot guard himself against, renders it unnecessary in ordinary cases that the master exercise with respect to simple tools the care that the law requires with respect to more complicated machinery. * * *"

In some cases the rule is said to be grounded on the theory of assumption of risk. See 13 L.R.A., N.S., 687, note. Express provisions in workmen's compensation laws generally preclude the defense of "assumption of risk" and other common-law defenses, in actions by employees against their employers for injuries sustained in the course of employment. Some courts have held that such statutes do not alter the simple tool and appliance rule, for the reason that the employer is not negligent if he owes no duty to make an inspection. In Maher v. Wagner, 62 S.D. 227, 252 N.W. 647, 648, the court said:

"Some confusion has arisen due to the fact that some of the cases take the position that the simple tool doctrine is based, or finds the reason for its existence, upon the doctrine of 'assumption of risk' by the employee. See Allen Gravel Co. v. Yarbrough, supra [133 Miss. 652, 98 So. 117]. However, the phrase 'assumption of risk' is used with two different meanings. In its original sense, it referred to the ordinary and inherent risks of employment, and, so far as 'assumption of risk' in this sense of the word barred recovery by a servant injured in the course of employment, it did so because there was no breach of the master's duty, no actionable fault on the part of the master, and hence no cause of action. * * * See 28 Harvard Law Review, 163, 176, and annotations 28 L.R.A., N.S., 1250.

"In the first meaning of the phrase, 'assumption of risk' is not in any proper sense a defense at all. It is merely a phrase used to convey the idea that the master is not an insurer and is not guilty of actionable fault. In other words, that there is no cause of action. It it with this meaning of the phrase, we are satisfied, that the term 'assumption of risk' should be applied to the simple tool doctrine. * * *"

In Hedicke v. Highland Springs Co., 185 Minn. 79, 239 N.W. 896, 897, the court explained:

"* * * Our decisions, moreover, predicate the simple tool doctrine upon the theory that as to such a tool the master owes the servant no duty to inspect for the purpose of discovering whether the ordinary use had produced some defect therein which would endanger the user. If there is no duty to discover and remedy such defects, of course, there can be no negligence inferred from the mere proof that defects developed in the use of a simple appliance. * * * So we think the law is established that no actionable negligence of an employer is shown when an employee is injured, from a defect resultant from the ordinary use of a simple tool or appliance. And it matters not what affirmative defenses the statute has deprived the employer of, the employee must prove negligence, if recovery is to be had for injuries received in the employment."

Respondent's counter-contention is two-fold: (1) That a stepladder is not a simple tool or appliance; and (2) even if it were held to be such, the rule relative thereto has been repudiated in this jurisdiction.

There are numerous cases which hold that a ladder...