Ten Mile Lumber Co. v. Garner

• Citation: 117 Miss. 814,78 So. 776
• Decision Date: 03 June 1918
• Docket Number: 20179
• Court: United States State Supreme Court of Mississippi
• Parties: TEN MILE LUMBER CO v. GARNER

78 So. 776

117 Miss. 814

TEN MILE LUMBER CO v. GARNER

No. 20179

Supreme Court of Mississippi

June 3, 1918

Division B

APPEAL from the circuit court of Stone county, HON. J. H. NEVILLE Judge.

Suit by Ester Garner against the Ten Mile Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause dismissed.

Tally &amp Mayson, for appellant.

We respectfully submit that the peremptory instruction in this case should have been given. The appellee was not directed by the foreman or anyone having the right to direct his services to assist in straightening the peavey point. They were under no obligation, either to appellant or any one else to undertake to straighten the point where they were at work the appellant maintaining a blacksmith shop for that especial purpose. It makes no difference how defective the maul may have been, for the purposes for which it was intended, it was never intended to be used as it was used on the occasion. The rule is probably universal, supported by well-considered authorities that if an employee uses an instrument without any compulsion from his employer, for a purpose for which it was not intended and he is injured thereby he cannot recover. It is said by a distinguished author whose utterances are always in favor of the employee, in a contest between master and servant that:

"Where a master discharges his duty by furnishing suitable tools, machinery, or appliances, but the servant uses them for a purpose not contemplated or intended, nor required by the orders under which he is working, and in so doing receives an injury, he cannot make his own folly or negligence a ground for recovering damages against the master." 4 Thompson on Neg., 4000. Our own court has announced the same doctrine that Thompson does. Bell v. Refugee Oil Mill Co., 77 Miss. 387, So. 382.

"On this principle it has been held that where a mere foreman of work orders an ordinary employee to use a defective appliance not furnished by the employer for such use, in consequence of which the employee so commanded, is injured, the negligence will be deemed that of a fellow servant, and the master will not be liable. 4 Thompson on Neg., 4000.

"The master is not liable for injuries caused by the use of appliances for purposes for which he had no reason to believe they would be used." Kreyes v. Longville Longleaf Lumber Co. (La.), 52 So. 1018.

"An employer is not liable in damages to one of its employees where the injury resulted from putting one of the appliances supplied, to a use for which it was not intended in an improper manner." Illinois Central R. R. Co. v. Daniels, 73 Miss 258, 19 So. 830; See, also, Vicksburg Elc. Co. v. Vaugn, 27 So. 599; Capital Oil Works v. Block, 70 Miss. 8, 12 So. 26; Hatter v. Railroad Co., 69 Miss. 642, 13 So. 827.

"If new functions are imposed upon the instrumentalities by the servants themselves a situation supervenes, which the master cannot be held to have anticipated." 1 Labatt, Master and Servant, 27.

The consensus of testimony of all witnesses for plaintiff was that the axe was not a proper instrument to straighten to peavey with. It had been diverted to a purpose for which it was never intended. There is no charge that the axe was defective for the purpose for which is was intended, nor that there is any defect in the maul on the side the peavey point was placed. There isn't a semblance of proof in the record, as to where the silver came from and injured the appellee. It is a mere conjecture that it came from the maul. That falls short of establishing appellee's case, since the res ipsa loquitur doctrine does not apply to master and servant.

We insist that the case of Miss. Central R. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310, is a much stronger case for plaintiff than the one at bar, yet the court held in that case that a peremptory instruction should have been given. In the Bennett case, the injury occurred while he was working on the instrument, an anvil that he was required to work on, and one about which he had complained on account of obvious defects. He was using the anvil for the purpose for which it was intended, but in the case at bar it was never intended that the axe or the maul should be used for the purpose of straightening a peavey. The axe and maul are both simple tools and if there were any defects, they were perfectly obvious to appellee and his father. The master was therefore under no obligation to inspect such tools. The great weight of authority supports the contention that an employer owes no duty to the employee of inspecting simple tools, when the defects are obvious. Karras v. Chicago, etc., R. R. Co., L. R. A. 1917; E. Ft. Smith, etc., R. R. Co. v. Holcomb, L. R. A. 1916F, 1237.

As to the right to recover for injuries from flying splinters caused by blows, most authorities support the proposition that it cannot be done. And especially is this true, if any defect is open and obvious; the tool was voluntarily used and for a purpose for which it was not intended. L. Houx v. Union Construction Co., L. R. A. (N. S.) 901, and note.

We therefore respectfully submit that the case ought to be reversed and dismissed.

J. C. Ross and Mize & Mize, for appellee.

All appellant complains of is that there was no liability and that the court erred in not giving a peremptory instruction for the appellant. This case was brought on the theory that it was appellee's duty to mend such tools as might become unfit to work with during the progress of the work, that he was acting under orders to this effect and that the appellant failed to furnish him with suitable and proper tools with which to mend his peavey and that the tools appellant did furnish him with for this purpose, to wit, the maul and the axe were not reasonably safe.

The case of Skelton v. Pacific Lumber Co., 140 Cal. 511, 74 P. 14, lays down the proper rule: "The duties which a master owes to his servants and which duties he must perform, are to furnish suitable machinery and appliances with which the service is to be performed and to keep them in order and repair."

Now, when the appellant required appellee to mend tools that became unfit for use in the course of the work, it was appellant's duty to furnish appellee with suitable and proper tools with which to do this repair work, and to see that they were in a reasonably safe condition.

Analyzing appellee's case in the light of the above rule, what do we find? It became necessary to repair the peavey that became unfit for use during the progress of the work. What was furnished appellee to do this repair work with? A maul, which would have been one of the proper tools if it had been in fit condition; but this record bristles with evidence that the maul was absolutely in unfit condition to be used as a maul. Therefore appellee attempted to use the maul in attempting to mend the peavey in the manner it could best be used, to wit: laying it down on its side and placing the peavey point on it to be hit. Now, was a reasonably proper, fit and suitable tool furnished appellee to be used to hit the peavey point with? What was furnished to hit the peavey with? An axe. Was this a suitable tool for this purpose? All the evidence shows that it was not a fit and suitable tool for the purpose and this evidence is undisputed. But it was the only tool furnished that could be used to hit with.

Counsel for appellant makes the contention that appellee should not recover for the reason as alleged by appellant that he was using the tools in the manner he should not have used them, and the first authority he cites is 4 Thompson on Negligence, sec. 4000, to wit: "Where a master discharges his duty by furnishing suitable tools, machinery or appliances, but the servant uses them for a purpose not contemplated or intended nor required by the orders under which he is working, and in so doing receives an injury, he cannot make his own folly or negligence a ground for recovering damages against the master."

This section is the law everywhere by weight of authority, but the trouble with appellant's case is that the facts do not come within the rule announced by said section in this: Thompson says: "Where a master has furnished suitable tools, etc." and the servant uses them in a manner not intended, the master is not liable. In the instant case, the very complaint of the declaration is that no suitable tools were furnished with which to do the work of repairing the peavy. If suitable tools had been furnished to mend the peavey with and appellee had used them in a manner not intended, then appellee would have had no case.

Appellant cites the case of Bell v. Refuge Oil Co., 77 Miss. 387, and quotes therefrom as follows: "On this principle it has been held that where a mere foreman of work orders an ordinary employee to use a defective appliance not furnished by the employee for such use, in consequence of which the employee is injured, the negligence will be deemed that of a fellow servant and the master will not be liable."

That case is where an employee used a defective appliance not furnished for the purpose the servant used it, but in this case we have a defective appliance furnished for the purpose for which the servant was using it, but the servant got hurt on account of it being defective and unsuitable.

Also sec. 4001, 4 Thompson on Negligence, cited by appellant, to wit: "The master is not liable for injuries caused by the use of appliances for purposes for which he had no reason to know that appellee was using the tools here for the purpose intended by appellant for which they should be used. So with all the cases cited by appellant.

The term "suitable" used with reference to...