The duty of inspection is not imposed upon the employer in respect to simple tools, "because one using a tool of simple construction may readily discover for himself its defects and the possible dangers in using it."16

Following the reason for the rule, it appears that the rule is applicable only in respect of obvious defects. In regard to all other defects the question of the employer's liability depends upon the principles of law invoked for the determination of his liability for injuries caused by more complicated appliances.

Defect Known to Master.-Some courts renounce intention of holding that the simple tools rule applies in a case where the employer knew of the defective condition of a simple tool, and its condition was unknown to the servant. One court states that, "In such a case the master would be liable.”17

It was so held in a case where an employe was injured while using a defective monkeywrench, the defect being known to the employer and not known to the employe.18

"Although the master is not required to inspect simple tools, previously furnished. to the employe, to discover defects of which the employe using such implement should be aware, and although generally no inspection of a simple tool may be necessary at the time it is delivered to an employe, yet if the master furnishes such a tool, with a dangerous defect of which he has actual knowledge, he is negligent. He should not be permitted to expose the servant to such a risk, particularly if the defect is of such a character that it might be overlooked by the servant."19

If the employer is under no duty to discover the defective condition of a simple tool, and if he does nothing to mislead the

(16) Schumann V. International Harvester Co., 174 Ill. App. 140.

(17) So stated in Ohio Valley R. Co. v. Copley, Ky., 1914, 166 S. W. 625, 628.

(18) Mergenthaler-Horton Basket Co. v. Taylor, 28 Ky. L. Rep. 924, 90 S. W. 968.

(19) Philip Carey Roofing & Mfg. Black, Tenn., 1914, 164 S. W. 1183.

employe who is injured thereby, it is difficult to understand on what rational theory he can be held liable merely because he knew of a fact that he was not required to know.

Duty of Employer to Instruct and Warn Employe.-An employer is not required to instruct his employes, or warn them of dangers, or inquire as to the experience they have had, in the performance of simple duties, such as anyone with intelligence and sufficient strength can perform, and the dangers incidental to which are equally obvious to all men.20

The duty of an employer to warn or instruct an employe exists only where it is reasonably required for the latter's safety, on account of the dangerous character of the work or the experience of the employe. It has been held that an employer was not required to instruct an experienced man that a piece of steel may be broken off a battered cutter by the heavy blow of a hammer when, judging by his experience, he was fully aware of that fact.21

It is not necessary to warn an employe of an obvious danger or where no danger is to be anticipated.22

An employer, so it has been held, is under no duty to instruct an experienced workman, a foreigner, in regard to the danger from flying particles of rock, in the work of breaking large rocks by striking them with a pick.23

In this case the court said: "We think it must be said that it is a matter of common knowledge that, when a rock is struck. with great force by any iron tool, whether sharp or dull, splinters are liable to fly as a result of the concussion. A man 33 years of age, who had spent his life in ordinary laborious occupations, could not reasonably be supposed to be ignorant upon

(20) Jackson v. Schillinger Bros. Co., Mich., 1914, 148 N. W. 735.

(21) Lemieux v. Boston & M. R. Co., Mass., 1914, 106 N. E. 992.

(22) West Kentucky Coal Co. v. Kelley, 155 Ky. 552, 159 S. W. 1152.

(23) Toth v. Osceola Consol. Min. Co., Mich., 1914, 146 N. W. 668.

this point and require instruction. His ignorance of English or of the customs of the country would not make instructions necessary. The results of such a blow are so common as to be almost universal. Under such circumstances, the master is under no duty to warn the servant of a danger so common and obvious."

In one case it appeared that the plaintiff was an experienced carpenter, and that he had been employed in defendant's repair shops 4 or 5 years; that in the course of his work it became necessary occasionally to cut rivets with cold chisels, and that this work was customarily done by the carpenters as a part of their work; that on the occasion in question he needed a chisel for this purpose and, there being none available at the moment, his foreman told him to wait until another workman who was using one had finished with it; that he did so, and while he and another workman were cutting the rivets—one holding the chisel while the other struck it with a hammer-a piece of steel flew from the head of the chisel and struck him in the eye, inflicting the injury complained of; that the head of the chisel was somewhat battered. It was held that the employer was under no duty to instruct the plaintiff in regard to the danger of being hurt by flying chips of steel from the battered chisel. "We think," said the court, "that want of reasonable care on the part of the master cannot be predicated on the fact that the master failed to warn a servant mechanic of the age, intelligence, and experience of this plaintiff that bits of steel were liable to fly from the mushroomed head of a cold chisel when struck with a hammer."24

Assumption of Risk.-The courts generally follow the rule that an employe assumes the risk of obvious dangers, those which he knows and appreciates, and those which by reasonable care and attention he ought to know and appreciate.

(24) Cooney v. Portland Terminal Co., Me., 1914, 92 Atl. 178.

"A servant assumes the risks of injuries from simple and ordinary appliances and methods, the nature of which he understands, or which is easily understood."25

And this rule is applied in some states even though the employer has notice of the defect.26

In one case it was contended that the plaintiff assumed the risk of injury from a flying particle of steel from a pin maul with which he was working. In this regard the court said: "This, however, cannot be true if there is any substantial evidence of negligence on the part of the defendant with respect to furnishing plaintiff with reasonably safe appliances with which to do his work. Where negligence is shown on the part of the master, a recovery cannot be denied the servant on the ground of assumption of risk, though he may be precluded by reason of his contributory negligence."27

Where the plaintiff, in an action to recover for the loss of one of his eyes by its being struck by a piece of steel from a drift pin which he was driving, was 19 years old and intelligent, and saw that the pin was battered, and he knew from his experience, or should have known, that blows on the frayed head of a pin would probably cause small pieces of steel to fly therefrom, it was held that he assumed the risk of such injury.28

Temper of Tools.-Ordinarily an employe is not charged with the duty of inspecting or testing a tool to ascertain whether or not it is properly tempered.29 It is the employer's duty to furnish the employe with reasonably safe tools, and if inspection is required of anyone it is his duty to inspect the tools. The temper of a tool is something that cannot be ascertained by an ordinary workman or by merely looking at

(25) Golden v. Ellis, 104 Me. 177, 71 Atl. 649. (26) Schumann V. International Harvester Co., 174 Ill. App. 140.

(27) Crader v. St. Louis & S. F. R. Co., Mo. App. 1914, 164 S. W. 678.

(28) Barrett v. Chicago Bridge & Iron Co., 181 Ill. App. 204.

(29) Freeman v. Wilson, Tex. Civ. App., 149

S. W. 413.

a tool. It requires a certain kind of test, and the duty to test a tool for this purpose is the employer's. It follows, therefore, that if the defect in a tool consists in its being improperly tempered, and such defect results in injury to an employe, the employer is liable, unless the duties of the employe were such that he was required to know of the quality of the tool in this respect. A tool may be a simple one in every other respect, but as testing it to ascertain whether it is properly tempered for the use it is intended is not a simple matter, the simple tool rule has no application to a defect of this character.

If a servant suffers an injury caused by a tool being improperly tempered, and owing to his inexperience and lack of knowledge he could not tell whether or not it was properly tempered, he cannot be charged with contributory negligence or with having assumed the risk.30

Where an employer furnished an employe with a pin maul, and the latter was injured while using it by a particle of steel flying therefrom, it was urged that the employer was not liable because the pin maul was a simple tool. It was held, however, that the rule had no application where the particle of steel was caused to fly from the maul by its being improperly tempered, as this was a defect which the employe could not have discovered by such an examination thereof as he would be required to make to discover defects or insufficiencies therein.31

In an action to recover for personal injuries it appeared that plaintiff and another workman were engaged in cutting a steel rail with a chisel and sledge hammer-one holding the chisel while the other struck it with the sledge-and that plaintiff was injured by a scale flying from the chisel and striking him in the right eye; that the chisel was battered and mushroomed; that the manufacturer

(30) Sterling v. Parker-Washington Co., Mo. App., 1914, 170 S. W. 1156.

(31) Crader v. St. Louis & S. F. R. Co., Mo. App., 1914, 164 S. W. 678.

of the kind of chisels in question tested from three to five or six out of every lot turned out, by striking the chisel on the head with a 12 pound sledge 5,000 or 6,000 blows; that if a chisel of this kind. is too hard it is very dangerous to work with. It was held that the chisel was not a simple tool, the court saying: "It will not do to assert that chisels of this dangerous character fall within the 'simple' tool rule, and say that an employer putting such instruments into the hands of a workman is under no obligations to observe reasonable care in seeing that they are suitable for the purposes for which they are to be used."32

Tools Manufactured by the Master.Where simple tools are procured by a master from some one else and furnished to his servant to use, it has been held that the servant assumes the risks of all defects therein. The theory being that if the defect is latent neither the master nor the servant knows of it, and if it is patent at the start, or develops by use, the servant has at least an equal opportunity with the master of observing it.33

But when the master manufactures a tool, or remodels it, and in so doing leaves it in a dangerous and defective condition, a different rule applies, for the master then knows what has been done and how it was done, and the servant does not. The equality of knowledge and the means of knowledge is then lacking.3

It is therefore held that an employer is liable for injuries caused by a defective tool which he himself manufactured.35

In a Washington case the plaintiff was injured while using a clamp and key by a small piece of steel flying from the key when struck with a hammer, owing to

(32) New York, N. H. & H. R. Co. v. Vizvari, 210 Fed. 118, 126 C. C. A. 632.

(33) Stankowski v. International Harvester Co., 180 Ill. App. 439.

(34) Stankowski v. International Harvester Co., 180 Ill. App. 439.

(35) Herricks v. Chicago & E. I. R. Co., 257 III. 264, 100 N. E. 897.

that the note was executed in this state to a payee that was a foreign corporation, which had not, though required to do so, complied with the laws of this state in respect of the filing here of a copy of its charter of incorporation.

Whatever may be the rule as to the maintenance of suit by such corporate payee itself (Orr's Administrator v. Orr, 157 Ky. 570, 163 S. W. 757), or whatever may have been the rule as to the right of an innocent holder in that regard before the passage of our Negotiable Instruments Law (Acts 1899, c. 94), as to which see First National Bank of Massillon v. Coughron (Ch. App.) 52 S. W. 1112, we think it manifest that, since the passage of that law, a recovery will be awarded to one into whose hands, as an innocent holder, such a note comes. Section 60 of that act governs, in its stipulation as follows:

"The maker of a negotiable instrument, by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse."

This statutory provision has been so construed by the courts of several jurisdictions. Young v. Gaus, 134 Mo. App. 166, 113 S. W. 735; National Bank of Commerce v. Pick, 13 N. D. 74, 99 N. E. 63; Brannan, Neg. Inst. Law $60. And see Halsey v. Henry Jewett Co., 190 N. Y. 231, 83 N. E. 25, 123 Am. St. Rep. 546.

This, if we were to treat the execution of the note to the corporate payee to have been a part of a doing of business in this state on its part, so as to fall within the purview of our foreign corporation acts.

Decree of the Court of Civil Appeals, in not holding the indorses an innocent holder, is reversed, and the bill of complaint of Edwards, the maker of the note, seeking to cancel the note, is dismissed.

NOTE-Right of Bona Fide Holder of Negotiable Paper Transferred by Foreign Corporation to Sue Thereon.-As seen, the instant case avoids passing upon the correctness vel non of a former Tennessee decision, by ruling that the Negotiable Instruments Law now gives to an innocent holder of negotiable paper the right to sue thereon in the courts of the state where the transferrer, a foreign corporation, would itself have no such right. We will endeavor to cite cases both under such law and upon the broad principles of commercial law.

Thus the case of Young v. Gans, 134 Mo. App. 166, 113 S. W. 735, which, while citing N. I. L. as creating an estoppel, argues additionally that independently of such law there would be the same estoppel. "By signing the note and delivering it to the corporation to be negotiated, the appellants represented to any one to whom the note might be offered for sale, that it was a

valid obligation and the corporation was the legal holder thereof and authorized to negotiate it." The peculiar facts of this case showing the note was made by officers and directors of the foreign corporation and intended to be negotiated would not perhaps be thought to create more strongly an estoppel, than where any maker might make a note to a corporation or its order. It brings out the estoppel feature more plainly or more directly suggests it.

Bank of Commerce v. Pick, 13 N. D. 74, 99 N. W. 63, shows a narrow construction of the statute of North Dakota making void contracts by a foreign corporation not complying with its law in behalf of such corporation and its "assigns." It holds that: "The word 'assigns' as used in this statute does not include the holder in due course of a negotiable instrument."

In Lauter v. Jarvis-Conklin M. T. Co., 85 Fed. 894, 29 C. C. A. 473, Lurton and Taft, C. JJ., and Hammond, D. J., sitting, it was held in opinion by Judge Lurton, that, while it was declared unlawful by Tennessee statute upon penalty of fine for a foreign corporation to do any business in that state, yet as the statute did not specifically make a prohibited transaction null and void, the innocent holder of a note made payable to a foreign corporation or order could sue and recover thereon. It is to be noted that this ruling was in 1897, prior to 1899, at which latter date N. I. L. was adopted in Tennessee. It was said: "The Tennessee statute relied on as making this note void contains no provision either expressly or impliedly declaring a note made in the course of such a prohibited business void in the hands of an innocent holder for value. Analogous statutes from various states and decisions upon them are cited and discussed.

West & Craig Mfg. Co. v. Banus, 177 Ill. App. 626, refers to several sections of the N. I. L. as making a negotiable paper in the hands of an innocent holder outside of the law making contracts by a foreign corporation void and nonenforceable. There is no particularity of discussion as in the Lauter case, supra.

In Carrollton Press Brick Co. v. Davis, Tex. Civ. App., 155 S. W. 1046, it is said: "There may have been some doubt at one time as to whether an innocent purchaser for value of a negotiable note, given to a foreign corporation not having a permit to do business in the State of Texas, could sue and recover on said note in the courts of Texas when the corporation itself could not maintain a suit thereon in said courts; but the right of such a purchaser to so do was definitely settled by the Supreme Court in State Bank of Chicago v. Holland, 103 Tex. 266, 126 S. W. 564."

It may, therefore, be said that, unless a statute is explicit in declaring, that a prohibitive statute makes such a note in whosoever's hands it comes unenforceable, construction will save it in the hands of an innocent holder, and N. I. L. if not construed as amending, pro tanto, prior statutes in regard to contracts of foreign corporations, yet the principle of estoppel underlying the provisions of such law, will bend the meaning of such statutes so as not to embrace commercial paper in the hands of innocent hold

ers.

C.