Opinion
April 11, 1949.
1. Master and servant — reasonably safe methods and appliances.
A workman assumes the usual and ordinary risks incident to his employment, after the master has exercised reasonable care to furnish reasonably safe methods and appliances for doing the work.
2. Master and servant — reasonably safe appliances — ladder for painter.
Where the work of a painter was such that it was necessary that he be supplied with a ladder so that he could avoid standing immediately beneath the brush from which bits of paint were likely to fall into his eyes, and where upon repeated requests the employer, although promising to do so, failed to furnish any adequate appliances or facilities for the stated purpose, a declaration which sets forth the facts, and that as a proximate consequence of the employer's neglect the plaintiff, the painter, received an injury to his eye while at work, was sufficient to withstand a demurrer.
3. Pleading — demurrer — doubtful or close question.
A demurrer should be overruled if it raised merely a doubtful question or where the case is such that justice may be promoted by a trial on the merits, although it may be that in technical point the demurrer was sustainable under strict law. Sec. 1464, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Jason H. Floyd, for appellant.
The liability of the appellee for the injuries sustained by the appellant, his servant, is predicated in the declaration, upon the principle that the master owes the duty to his servant to furnish him with the proper appliances necessary for the safe performance by the servant of his duties, and the total failure of the master to furnish any appliance to enable the servant to paint the ceiling of the house which he is painting. This principle of law seems to be universally approved and is very well stated in 33 American Jurisprudence, Master and Servant, Section 188, page 616, as follows: "Liability on the part of the employer for injury incurred by the employee is predicable of a failure on the employer's part to furnish for the use of the employee injured an instrumentality such as a scaffold, where the employer ought to have anticipated that a calamity would result from the employee's working without the appliance".
The principle is also very well stated in a recent Mississippi case, Masonite Corporation v. Graham, 25 So.2d 322, in which the court spoke as follows: "It is the duty of the master to exercise reasonable care and diligence to furnish the servant a reasonably safe place in which to work and reasonably suitable and safe tools and appliances with which to do his work, but he is not an insurer of the safety of the servant. Gulfport Creosoting Company v. White, 171 Miss. 127, 157 So. 86. For the master to be liable the injury to the servant must result either (1) from the use by the servant of an unsafe method he is forced to adopt because of the command of the master or the master's total failure to furnish tools or appliances of any kind, or (2) from the use by the servant of the defective tools or appliances which are furnished by the master." The principle is also recognized in Woolworth v. Freeman, 193 Miss. 838, 11 So.2d 447, in which the court held that it was the duty of a storeowner to furnish its employees with a way or appliance for obtaining merchandise stored on a top shelf which could not be reached by one standing on the floor, and that it was for the jury to decide whether or not storeowner's negligence in failing to provide a proper appliance was the proximate cause of injuries sustained by an employee when she fell in attempting to reach an article of merchandise on the top shelf in a manner customarily adopted by employees and not disapproved by the employer. The declaration in the case at bar alleges that the performance by appellant of the painting job in a safe manner necessitated the use of ladders in the painting of the walls and ceilings and that he requested the appellee to furnish the ladders and that the appellee failed to do so. That the appellant then built a makeshift scaffold from scrap lumber which raised appellant about seven inches from the floor, which scaffold was unsatisfactory because he could not reach the ceiling without straining and made it necessary for appellant to stand immediately beneath his paint brush as he painted the ceiling. That appellant called appellee's attention to the unsafe and unsatisfactory scaffold but that appellee directed the plaintiff to continue his work. That thereafter, on account of the unsafe scaffold forcing him to stand directly under the brush, some paint fell into appellant's right eye, causing the injuries complained of. The declaration specifically and unequivocally charges (1) that ladders are necessary for the safe performance of servant's duties in painting the ceiling, (2) that the servant requested the ladders from the master on two occasions and that the master directed him to continue his work and never furnished the ladders, (3) that the failure of the master to furnish the ladders was the proximate cause of the paint falling in the servant's eye and causing injury to same. From the above cited authorities it appears that the declaration states a cause of action and that the demurrer should have been overruled.
The second ground of appellee's demurrer is to the effect that the appellant assumed the risk of the injury he sustained and "took upon himself the natural and ordinary perils incident to such service to the defendant". The doctrine of the assumption of risk has been abolished in Mississippi by Section 1456, Code 1942. It is also apparent that the injury was not occasioned by the natural and ordinary perils of the job but was the result of the servant's being forced by the failure of the master to furnish the proper appliance, to work in an improper and unsafe position, that is, immediately beneath his brush as he was painting the ceiling. With reference to the Mississippi statute abolishing the assumption of risk, the recent case of Ingalls Shipbuilding Corporation v. Trehern, 155 F.2d 202, held that a shipfitter who was required to work on a scaffold consisting of one board ten inches wide, and who requested a safer scaffold of his foreman, but was instructed to go ahead with his work, did not assume the risk of injury sustained in falling from scaffold, in view of the Mississippi statute abolishing such defense, where negligence of employer is shown.
Nor can it be successfully argued that the master should not be held liable in this case because he could not have reasonably anticipated that injury to the servant would result from his failure to furnish the proper appliance. The master was a building contractor and should have foreseen the likelihood of the occurrence of the exact accident which did occur in this case. The question is not whether he did foresee it but whether or not he should have foreseen it. We earnestly contend that it was for the jury to decide whether or not the appellee should have foreseen or anticipated the injury.
The case of Woolworth v. Freeman above cited is very similar to the case at bar. In that case the appellee, a store clerk, sued the appellant, the store-owner, for injuries which she received when she fell in attempting to reach merchandise stored on a top shelf which could not be reached by one standing on the floor. The action was predicated on the failure of the store owner to furnish an appliance for her use in reaching the merchandise on the top shelf.
And further discussing the case of Woolworth v. Freeman above cited, in which three of the justices dissented, it should be noted that an element appears in that case which does not appear in the case at bar. In the Woolworth case the evidence disclosed that there was an alternative method of reaching the top shelf in that the employee, if he so minded, could get a Caramel box from the stock room on which the employee could stand and reach the top shelf with safety. In the case at bar there was no alternative method furnished by the employer, and in fact there was total failure to furnish any appliance or way or method for the use of the employee in painting the ceiling. Although the dissenting justices did not file opinions, it is believed that their dissent may very well have been based upon the fact that the plaintiff in that case could have adopted a safe method by the use of the box and that by her adoption of an unsafe method she assumed the risk and was barred from recovery. It is respectfully submitted that the case at bar is much stronger for the appellant than the Woolworth case. In the Woolworth case there was no evidence that the employee ever objected to the lack of a proper appliance, whereas in the instant case the appellant on two occasions made requests for ladders and was instructed both times by the appellee to continue his work without them.
The injury sustained by appellant was not caused by any ordinary risk or hazard of his employment. Had the appellee made it possible for appellant to paint the ceiling while in a normal position, and while so doing had appellant splashed some paint in his eye or had the wind blown some paint in his eye, or had appellant in any manner got some paint in his eye, even though appellant was not negligent, then his injury would have been the result of the ordinary risks or hazard of his employment and he would not be entitled to recover. But in the case at bar, the appellee employer by failing and refusing to furnish his employee with a ladder or scaffold of sufficient height forced him to stand immediately beneath his brush as he painted the ceiling and thus made it impossible for him to safeguard his unprotected eyes from particles of falling paint, and consequently some paint did fall into the employee's right eye and did permanently and severely injure same. We submit that under the facts and circumstances as alleged in the declaration, the appellee should have anticipated the injury which resulted, or at least some substantial injury, to appellant, and that his failure to furnish a ladder or adequate scaffold was negligence and was the proximate cause of the appellant's injury. This question of fact should have been presented to the jury on the evidence adduced. When an employer wilfully refuses to furnish his employee with proper appliances, and his failure results in an injury to the employee, he cannot be heard to say that either that the employee assumed the risk or that the risk was an ordinary or usual risk of the employment.
Ebb J. Ford, Jr., for appellee.
As to appellant's citation of Masonite Corporation v. Graham, 199 Miss. 833, 25 So.2d 322, that case we believe is more in favor of the appellee herein than the appellant. The facts thereof were that the appellant fell off of a pile of slick masonite boards, alleging as negligence, that the master failed to furnish him a safe place in which to work. The court denied liability, and specifically held that the master is not an insurer of the safety of the servant, that the claimant failed entirely to show any negligence on the part of the master causing his injuries, that there was no showing that he would not have fallen and been injured any way, and that the request of the master for a directed verdict should have been granted.
As to the Gulfport Creosoting Co. v. White case, 171 Miss. 127, 157 So. 86, in that case the Supreme Court again ruled that which had already been held, that the master was not an insurer, that the use of a simple wrench by a competent person was a routine operation with no more than ordinary hazards, and that no liability was shown; and judgment was rendered in the Supreme Court dismissing the claimant's case.
As to Ingalls Shipbuilding Corporation v. Trehern (Fifth Circuit Court of Appeals, 1946), 155 F.2d 202, the one board scaffold from which the claimant shipfitter fell was of course the obviously proximate cause of the man's fall and injury. That situation is far afield from the case at bar. In the case at bar the scaffold did not cause the injury, was a secure fixture, and was not the proximate cause of the drop of paint falling from the paint brush towards the floor. There is no allegation in the declaration in this case that this painter's scaffold was not solid or that anything was wrong with it other than that it was not of sufficient height for him to reach as high as he wanted to reach.
And as to the case of Woolworth v. Freeman, 193 Miss. 838, 11 So.2d 447, which included a dissent by three of the Justices of this honorable court, the appellee herein, points out that there the awkward manner alone of the servant's allowed manner of climbing up onto the shelves was the proximate and apparently sole cause of her injury. Again, we point out that in the case at bar the appellant's own acts were obviously the cause sine qua non and also the proximate cause of the paint striking his eye. It must be borne in mind here that the appellant has made no averment that this paint was composed of any injurious substances, his allegation being only that it was "Kemtone Paint", apparently some well known brand. Also, as to his injury, he does not allege, (and he declined leave to amend), that the paint itself injured his eye. His only recitation is that on a certain date, some four days after the fall of the paint, "his right eye had become so inflamed and irritated from the paint that it was necessary for him to be taken to a physician". How the paint injured his eye, what it was composed of, or what physiological effect it had upon his eye is not disclosed.
As can be seen from the decisions herein above referred to, in these construction cases and in the work of any artisan, certain risks are always connected with the operations. A youth can safely chop kindling for the family's morning fire, and in so doing uses a sharp ax, which will slice off his fingers if he strikes them with the ax; but the point is to strike the wood instead of the fingers. And in the every day process of eating a meal, a person could very easily thrust a fork full of food into his ear or into his own eye, instead of his mouth, if he simply bends his head forward slightly or turns it about 45 to 90 degrees to the left. Too, a boxer in every bout perceives well directed fist blows speeding towards his chin, eyes and ears, but hopefully and normally dodges his head from one side to another, avoiding the blows, or possibly smartly bending his head forward to let his opponent's fist harmlessly smash a dull thud on the thick bony skull. A carpenter driving a nail can hit his hand unless he is careful. As a simple test, any person can hold a paint brush or a ruler in his own right hand, thrust it high above his head and observe that it is no trouble at all to move the head from side to side to avoid objects which may fall from the brush. In fact, when the right arm is extended upwards, precisely perpendicularly, and to its fullest extent, the area of the location of the tips of the fingers, or a brush, is some 6 or more inches to the right of the head.
And, as to these painters, that is one occupation in which if a man is so engaged, his own work clothes will definitely identify him as a painter almost as far as you can see him. His clothes and his cap, possibly with a vizor, are always spotted with paint. These painters know that paint splashes about and drips, whether they are painting a wall or a ceiling. In fact, it is almost impossible to paint anything without getting some paint on one's clothes. Even a portrait artist painting public figures, usually in sumptuous surroundings, wears a smock to preserve himself from his naturally expected, although possibly occasionally, haphazard movements.
These illustrations are of course well known to the court and to all men, and no doubt more apt examples could be quoted with further thought. However, the appellee herein could not have taken any steps to provide his servant with any assurance that no paint would fall on him. Even if the appellant had a scaffold so high that he would have to stoop to paint the ceiling, he would nevertheless have run the hazard of flipping paint sidewise into his own face.
The trial court sustained a demurrer to the declaration filed by the plaintiff, Otis Goff, in a suit for damages suffered when he received an injury to his eye while employed by and working for the defendant, J.N. Randall, a building contractor. He appeals from the judgment which dismissed his suit upon his failure to plead further therein.
The declaration charges in substance that when the plaintiff began work on an inside painting job he requested that he be furnished a ladder for use in painting the walls and ceilings of rooms; that the defendant stated that he had no ladder available and that the plaintiff should "make out the best way he could" without one at that time; that the plaintiff thereupon constructed a makeshift scaffold from the only material available on the premises, consisting of a board nailed on top of two 2 x 6 inch blocks, which would extend only about seven inches from the floor; that this was an unsatisfactory appliance in that it did not elevate the workman to a point where he could reach and paint the low ceiling without standing in a strained position immediately beneath his brush where any falling bits of paint therefrom could fall in his upturned face and eyes.
It is further alleged that prior to the injury to plaintiff's eye thus received, he called to the attention of his said employer the unsatisfactory scaffold that he was having to use, and was told to continue his work and that a ladder would be provided for his use; but that the defendant never furnished the ladder or any additional material for the construction of a proper scaffold. In this connection, it should be noted that the accident was not caused by a defective or insubstantial appliance constructed by the employee, but the allegation is that it was unsuitable and that the employee was directed to continue using it in disregard of his repeated request for a ladder. (Hn 1) A workman assumes the usual and ordinary risks incident to his employment, after the master has exercised reasonable care to furnish reasonably safe methods and appliances for doing the work. Whether a building contractor is under a duty to furnish a ladder to a painter who is working by the day or by the hour for him may depend upon the circumstances and understanding of the parties to be developed at the trial on the merits. The theory of the declaration in the instant case is that the employer owed his employee such a duty, although there is no specific allegation to that effect. In the case of F.W. Woolworth Company v. Freeman, 193 Miss. 838, 11 So.2d 447, it was held that it is the duty of the employer to furnish a ladder for the use of an employee in reaching merchandise on shelves which were otherwise out of reach. (Hn 2) We think that while the factual situation in that case varies in detail from that here involved, the principle there announced is sufficiently applicable in the instant case to render the declaration good as against a demurrer. We have not been able to find anything in the authorities relied upon by the appellee which would warrant the sustaining of the demurrer unless what was held in the case above cited should be overruled. (Hn 3) Moreover, if this is left in doubt, the case should be developed under all the facts upon a trial of the issue involved. Compare the two equity cases of Douglass v. Temple, 180 Miss. 1, 176 So. 598, where the Court was of the opinion that justice would probably be promoted by a determination of the ultimate right of the parties under an answer and proof in the exercise of fair legal discretion, though the grounds of demurrer might be technically sustainable, and Taylor et al. v. Twiner et al., 193 Miss. 410, 9 So.2d 644, 645, where the Court held that if a demurrer raises merely a doubtful question or where the case is such that justice may be promoted by a trial on the merits, the Court should exercise a fair, judicial discretion to that end, although it may be that in technical points the grounds of demurrer are sustainable under strict law. Then, too, under Section 1464, Code of 1942, it is provided among other things that if a declaration at law "contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; . . ."
Reversed and remanded.