Tscheiller v. National Weaving Co., Inc.

• Decision Date: 23 November 1938
• Docket Number: 529.
• Citation: 199 S.E. 623,214 N.C. 449
• Parties: TSCHEILLER v. NATIONAL WEAVING CO., Inc., et al.
• Court: North Carolina Supreme Court

199 S.E. 623

214 N.C. 449

TSCHEILLER v. NATIONAL WEAVING CO., Inc., et al.

No. 529.

Supreme Court of North Carolina

November 23, 1938

Appeal from Superior Court, Gaston County; S. J. Ervin, Jr., Special Judge.

Action by Mrs. Louise Tscheiller against the National Weaving Company, Inc., and another. From an order denying defendants' motion to dismiss, defendants appeal.

Affirmed in part and reversed in part. Civil action to recover damages resulting from the alleged negligence of the defendants in selling the plaintiff a sandwich unfit for human consumption.

The plaintiff alleges that the corporate defendant is engaged in the business of manufacturing textile products in which said business it employs several hundred people, and that the said corporation at the same time was also engaged in the business of selling sandwiches and cold drinks, in which said business it employed the defendant Banks McArver and not more than two other employees. She further alleges:

"4. That during the month of February, 1937, and for sometime prior thereto, the plaintiff was employed by the National Weaving Company, Inc., for the purpose of operating a machine in the textile mill of the National Weaving Company, Inc.; that her hours of work were from 3 o'clock P. M. until 11 P. M.

5. That the defendant Banks McArver was employed by the National Weaving Company, Inc., for the purpose of selling sandwiches, coca-cola, and other cold drinks in the mill of the National Weaving Company, Inc.

6. That on the date aforesaid, and for some time prior thereto, the National Weaving Company, Inc., prepared, or caused to be prepared, or purchased, sandwiches and cold drinks and kept the said food and drinks in the mill, and through its employee, the defendant Banks McArver, offered the same for sale to its employees.

7. That the National Weaving Company, Inc., sold to this plaintiff and other employees of the mill a coupon book or meal ticket, and when the sale of food was made, the same was paid for by a coupon attached to the said book or meal ticket; that the National Weaving Company, Inc., was engaged in the sale of the said food for profit; that the relationship between the plaintiff and the defendants with regard to the sale and purchase of food and drinks was that of vendor and vendee.

8. That on or about the ------ day of February, 1937, at about 6 o'clock P. M., the plaintiff purchased from the defendants a sandwich and immediately ate the same; that shortly thereafter she became sick at the stomach and had a vomiting spell; that notwithstanding her illness, she remained at work through the usual work period; that she was sick during the night and the next day; that she was unable to eat but went back to the mill to work at 3 o'clock and remained there until about 4:30 P. M., at which time plaintiff's condition became such that it was impossible for her to do any further work; that thereafter plaintiff went home and was confined to her bed and suffered injuries as hereinafter set forth.

9. That the defendants negligently kept the sandwiches in the mill where the temperature was necessarily high and the atmosphere was very humid; that the defendants took no precautions to prevent them from spoiling; that they failed to place them on ice or in a refrigerator or in a suitable place for them, and failed to inspect the said food before it was sold to this plaintiff to determine whether or not

it was fit and suitable for human consumption; that the defendants also made no effort to keep the fresh sandwiches from being mixed with those that had been prepared for some time."

The defendants moved the court below to dismiss this action on the ground that the plaintiff and the defendants, at the time of the alleged injury to the plaintiff, were subject to and operating under the provisions of the North Carolina Workmen's Compensation Act, and that the rights and remedies conferred by said act are exclusive of all other acts and said remedies are binding upon both the plaintiff and the defendants herein. An order was entered denying the motion of the defendants. The defendants excepted and appealed.

Emery B. Denny, of Gastonia, for appellants.

Gilreath & Gilreath and Wm. H. Abernathy, all of Charlotte, for appellee.

BARNHILL Justice.

It is alleged in the complaint that the corporate defendant employed several hundred employees, including the plaintiff. The presumption is that the parties to this action have accepted the provisions of the Workmen's Compensation Act and are bound thereby. P.L.1929, Ch. 120, Sec. 4 Michie's N.C.Code of 1935, Sec. 8081(k). Hanks v....