Wausau Southern Lumber Co. v. Cooley

• Decision Date: 27 November 1922
• Docket Number: 22784
• Citation: 130 Miss. 333,94 So. 228
• Court: Mississippi Supreme Court
• Parties: WAUSAU SOUTHERN LUMBER CO. v. COOLEY

94 So. 228

130 Miss. 333

WAUSAU SOUTHERN LUMBER CO. v. COOLEY

No. 22784

Supreme Court of Mississippi

November 27, 1922

MASTER AND SERVANT. Safe tool rule inapplicable to simple tool.

The rule that the master must exercise reasonable care to furnish a servant with safe tools and appliances is not applicable to such simple tools as an ordinary ax, where the servant possesses ordinary intelligence and knowledge, and the tools furnished are of a simple nature and easily understood, and in which de-fects can be readily observed by the servant.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Wayne county, HON. J. D. FATHEREE Judge.

Suit by E. W. Cooley against the Wausau Southern Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant.

Judgment reversed.

Smiths Young, Leigh & Johnston and Wm. Edwards, for appellant.

Practically all of the courts have held that tools like an axe are simple tools. The following tools have been held simple tools: A hammer is a simple tool. Webster Mfg. Co. v. Nesbitt, 68 N.E. 936; Lynn v. Glucose Sugar Refining Co., 104 N.W. 577; Golden v. Ellis, 71 A. 649; Dompier v. Lewis, 91 N.W. 152; Koschman v. Ashe, 116 Am. State Reports, 373; Rahm case, 108 S.W. 570; Martin case, 83 Am. State Reports, 671; Meyer case, 13 L. R. A. (N. S.) 684. A wedge is a simple tool. L'Hara case, 171 F. 394. A wrench is a simple tool. Garnett case, 98 F. 192; O'Brien case, 82 S.W. 319. A chisel is a simple tool. Fordyce case, 22 S. W., 161; Banks case, 55 S.E. 939; Demato case, 67 A. 28. A crowbar is a simple tool. Adams case, 88 N.E. 355; Miller case, 88 N.W. 758. A pick is a simple tool. Lehman case, 122 B. W. 1059. A shovel is a simple tool. Sterling Coal & Coke Co. case, 40 L. R. A. (N. S.) 837. A scythe is a simple tool. Post case, 97 S.W. 233. We, therefore, respectfully submit that an axe comes within the category of the above class of instruments, and that it is to be classed as a simple tool.

Question Number Two. Under this question there is presented to the court for the first time, so far as we can ascertain after a diligent search, the question as to whether or not the master is liable for a defect in a simple tool which results in injury. To our mind, the harm which would result from holding the master liable for a defect in a simple tool would be very great. The farmer who uses an axe, shovel, pitchfork or any other instrument would be liable to his farm hand for a defect therein, if he had knowledge of the defect. The personal injury law would be carried to a point ne plus ultra, and would produce inevitable harm, when its original purpose was to afford to an injured person a charitable and judicious remedy. Some of the courts of the Union have denied the right to recover in such a case. In the case of McMillan v. Minetto Shade Cloth Company, 117 New York Supplement, page 1081, the appellate division of New York held that a master was not liable for damages to an employee resulting from the use of a simple implement.

In the case of Sterling Coal & Coke Company v. Faulk, 131 S.W. 1030, the supreme court of Kentucky in practically the same case as the case at bar, held that "where plaintiff, a man of mature years and ordinary intelligence was employed to shovel slack into a coal car, and given a shovel which had been used by others for that work, and where he discovered that the round wooden piece on the shovel handle was cracked so that the wood revolved on the iron rod running through the handle and where he stated to the foreman that he did not want to use the shovel, but the foreman told him to use it and he would get him another, and where plaintiff's thumb was pinched by the crack in the handle, causing blood poison, it was held that even if the injury was caused by the defective shovel handle, the shovel as well as its use was so simple that the employer could not be charged with liability, the employer not being liable for defects in simple tools which can be readily detected and repaired." The same thing practically was held in the case of Lynn v. Glucose Sugar Refining Company, 104 N.W. 577.

While we admit that there are authorities holding contrary to these cases, yet we insist that the master ought not to be liable for injury resulting from defect in a simple tool, such as an axe.

W. J. Pack, for appellee.

1. Is an axe a simple tool? So far as we can ascertain this point has never been judicially determined.

2. Is the master liable for a defect in a simple tool where injury results from its use? The case upon which appellant seems to rely most in his contention that the master should not be held liable is that of Sterling Coal & Coke Company v. Fork, 141 Ky. 40, 131 S.W. 1030, 40 L. R. A. (N. S.) 837. It is true that the court held that in this case the master was not liable, but toward the close of the opinion, the court recognized and emphasized the fact that it would be impractical and unjust to attempt to lay down any hard and fast rule and that each case of this kind must be decided on its individual merits.

We have made a diligent search of the authorities on the question and we find that the great majority of the courts that exempt the master from liability for defects in simple tools, do so, either upon the ground of assumption of risk or else the ground of contributory negligence on the part of the servant.

Under our statutes, neither of these defenses can serve to bar recovery by the servant, assuming of course that the master has been negligent. (Contributory negligence--Section 502, Hemingway's Code; Tallahala Lumber Company v. Holliman, 87 So. 661; Davis v. Elzee, 88 So. 639; Brahan v. Meridian Light and Railway Company, 83 So. 467. For assumption of risk see section 504, of Hemingway's Code.)

So far we have discussed this question as a general proposition of law and without reference to the holding of this court. In the case of Parker v. W. C. Wood Lumber Company, 54 So. 252, this court reviewed some of the principal authorities on this point and finally arrived at the conclusion that this whole matter of injury from the point of "simple tools" resolved itself into a question of contributory negligence.

Nor does this court stand alone in assuming this attitude. In Tibbs v. Deemer Manufacturing Company, 104 C. C. A. 488, 182 F. 48, the master was held liable for furnishing defective tongs for handling logs, without any discussion of the simple tool rule.

In Atchison T. & S. F. R. Co. v. Lannigan, 56 Kansas, 109, 42 P. 343, a brakeman was allowed to recover for injuries caused by his lantern smoking so that it gave a very dim light. No mention is made of the simple tool rule.

In Warren v. Chicago R. I. & R. R. Co., 62 App. 184, note, 3 Labatt's Master and Servant (2 Ed.) page 2484, it was held that the fact that the defective appliance was a simple tool like a ladder was merely a circumstance to be considered with other facts in determining the negligence of the master and the contributory negligence of the servant.

In the light of this court's decision in the Parker case, supra, we submit that the most that can be charged against plaintiff's rights in the case at bar, is that he was guilty of contributory negligence and under our statute, even if this were true, it could not serve as a complete bar to his recovery.

But we earnestly contend that plaintiff was not guilty of the slightest contributory negligence. We submit that counsel in stating this position relative to the master's liability for injury resulting from a defective simple tool, has overlooked the vital point in this case. It seems to us that the question should be stated as follows: Is the master liable for the defect in a simple tool, where injury results from its use, after the servant has discovered the defect, has shown it to the master, or his agent, and has been given specific instructions by the master or his agent, to continue to use the defective tool? This is exactly what happened in the case at bar.

We respectfully call the attention of the court to the case of Southern Kansas R. Co. v. Croker, 41 Kas., 747, 13 Am. St. Rep. 320, 21 P. 785, annotated in 13 L. R. A. (N. S.) 672, and note, in which an employer was held to be guilty of negligence in furnishing a stone hammer with a crooked handle, and in requiring plaintiff, who was injured by a flying bit of stone while breaking a rock for ballast, to continue to use it after complaint to the foreman of its condition.

Another case in point is Missouri K. & T. R. Co. v. Puckett, 62 Kas. 770, 64 P. 631 annotated in 13 L. R. A. (N. S.) 670, and note, in which the "simple tool rule" was held inapplicable where the complaining servant has been told by his foreman to continue to use the defective tool.

While we admit with counsel for appellant that the authorities are somewhat in conflict upon this point, we submit that reason and justice demand that the employer be held liable where he deliberately and with full knowledge as in the case at bar, instructs his employee to use a defective and dangerous tool.

OPINION

ETHRIDGE, J.

The appellee was employed by the appellant in the capacity of cutting and sawing logs; appellant being engaged in the manufacture of lumber. The appellee was injured by the use of an ax which had a defective handle. He had used the ax for some days, and had returned it to the shop to have it rehandled, but for some reason it was not rehandled on the morning in question, when the injury occurred, and the ax which had been furnished as a temporary substitute...