Collins v. Harrison , 64 L.R.A. 156 ( 1903 )

The plaintiff sues in an action on the case for negligence. The declaration alleges that the plaintiff was employed by the defendant as housekeeper, the defendant agreeing to provide the plaintiff with board and lodging; that the roof over the room in which the plaintiff slept was out of repair and leaked, so that the plaintiff's bed and bedding became wet and unfit to use; that the plaintiff gave notice to the defendant of the condition of her room; that she could not sleep in it; that he then promised, if she would remain in his employ, to repair the roof and provide suitable bedding; and that, relying on the promise she remained seven days, being obliged to sleep in said room, by reason of which she became sick.

The defendant demurs to the declaration, on the following grounds:

(1) That the declaration does not set forth any duty which the defendant owed to the plaintiff, for which she can maintain this action.

(2) That the plaintiff was not bound to remain in the house after she learned of its condition, and that she did so at her own risk, the results of which are attributable to her own act.

(3) That the declaration sets forth a promise by the defendant to repair, and a breach thereof by him, thus setting forth two causes of action in the same count, which makes it bad for duplicity.

The general rule is that a master is bound to provide appliances for a servant, and the term appliances is stated in 1 Bailey's Pers. Inj. 1, to include machinery, apparatus, and premises. This rule is usually invoked in cases where a servant is employed in some mechanical work, but we fail to see why it is not equally applicable to a domestic servant.

Wood on Master and Servant, 2nd ed. § 83, p. 166, states the rule, where board and lodging are to be furnished by the employer, as follows: "So too, he (the employer) impliedly undertakes to furnish him (the servant) with suitable lodging and good and wholesome food." Unfortunately, the case cited as authority on this point has no relation to it. Still the rule is a reasonable one, and in the line of the general duty of a master to a servant. Thus in Ryan v. Fowler, 24 N.Y. 410, it was held that a master was liable for injuries to a servant caused by the fall of a privy, insecurely attached to the factory in which the servant was employed.

In Mahoney v. Dore, 155 Mass. 513, it was held that an employer was liable to a domestic servant for the improper condition of an outside flight of stairs, by reason of which the servant fell and was injured. Knowlton, J., said: "The plaintiff had occasion to use these stairs frequently, as a servant of the defendant, and it was the duty of the defendant to keep them safe, so far as the exercise of reasonable care and diligence on her part would accomplish that result." See also Fitzgerald v.Connecticut, 155 Mass. 155; and Clifford v. Denver, 9 Col. 333.

The first ground of demurrer, as stated, is that the declaration does not set forth any duty which the defendant owed to the plaintiff, whereas the declaration explicitly sets forth that it became the duty of the defendant to furnish proper shelter, etc., on his agreement to provide the plaintiff with board and lodging. Evidently the demurrer was intended to raise the question of a legal duty, and we have so considered it. We think it was the duty of the defendant to provide suitable shelter, under the allegations of the declaration.

The declaration covers the second ground of demurrer by stating that the defendant promised to repair the leak in the roof if the plaintiff would not leave his employment.

Durfee, C.J., said, in Kelley v. Silver Spring,12 R.I. 112: "If, when the danger occurred, the plaintiff had notified the defendant of it, and had been induced to remain in his position by assurances that it should be remedied, or, as some of the cases hold, by a reasonable expectation that it would be remedied, then it would not necessarily be presumed from his knowledge of the danger that he had assumed the risk."

In Jones v. New Am. File Co., 21 R.I. 125, it was held that the effect of a promise to remedy a defect is to raise a question of fact, whether, under the circumstances, the servant is excused from taking the risk after such promise; the conditions being whether the employer had sufficient time to make the repairs, and whether, knowing the danger, the plaintiff proportionately increased his own care and precaution.

King v. Interstate Co., 23 R.I. 583, distinguishedClifford v. Denver, 9 Col. 333, on the ground that the former case did not show a promise as was shown in the latter case. See also Stephenson v. Duncan, 73 Wis. 404.

The third ground of demurrer is that as the declaration sets forth a promise it is bad for duplicity.

True, a promise is set out in the declaration, but not as a cause of action. The obvious purpose is to excuse the continuance in service, and thus to avoid a demurrer on that ground. This is not duplicity.

The defendant's demurrer to the declaration is overruled