Adams v. G. C. Murphy Co.

• Decision Date: 29 May 1934
• Docket Number: (No. 7944)
• Citation: 115 W.Va. 122
• Court: West Virginia Supreme Court
• Parties: Ethel Adams v. G. C. Murphy Company,A Corporation

115 W.Va. 122

Ethel Adams

v. G. C. Murphy Company, A Corporation

(No. 7944)

Supreme Court of Appeals of West Virginia.

Submitted April 26, 1934.

Decided May 29, 1934.

1. Master and Servant

A disability incurred by an employee in the course of his employment, not directly attributable to definite, isolated, fortuitous occurrence, is not compensable under the State Compensation Act.

2. Trial

Repetition of instructions on the same phase of the case is not required.

3. Appeal and Error

This court will not consider a general objection to a hypothetical question on the ground that it does not include all the pertinent facts which the evidence tends to prove, where in the trial court no basis for the objection is stated nor the alleged omitted facts presented upon cross-examination of the witness.

4. Master and Servant

A case in which the evidence warrants the jury in finding that the plaintiff, in the course of her employment, suffered disability from, breathing carbon monoxide gas as a result of the negligence of the employer.

Error to Circuit Court, Raleigh County.

Action by Ethel Adams against the G. C. Murphy Company. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

McGinnis, Ashivorth & Mann, for plaintiff in error. J. Q. Hutchinson and Clay S. Grouse, for defendant in error.

Litz, Judge:

This action was brought by Ethel Adams against G. C. Murphy Company, a corporation, to recover for impairment of her health from alleged breathing of carbon monoxide gas in the course of her employment with the company. The writ was awarded, at the instance of defendant, to the judgment entered upon a verdict of $5,-000.00 in favor of plaintiff.

The Miurphy Company owns and operates a general store for the sale of merchandise in the city of Beckley. The storeroom (54 by 100 feet) in which its goods are displayed is equipped with a beverage fountain and lunch counter for the convenience of customers. The food served at the counter is prepared in a small kitchen (4 1/2 feet wide, 11 feet long and 7 1/2 feet high at the entrance), located in the storeroom under an enclosed stairway, and entered through an automatic swinging door three by six feet. The ceiling of the kitchen slopes with the stairway, and is five feet high at the end opposite the door. A ten-inch square aperture in the panel of the door, and a metal ventilator seventeen inches square in the inside wall are the only openings in the kitchen for the intake of air when the door is closed. All the air entering the kitchen comes from within the storeroom. The kitchen contains a small table, water sink, and gas range, with eight burners and two ovens, close to the stairway where the ceiling is lowest.

Plaintiff, who was twenty years of age, worked at the lunch counter from September 2, 1932, until the latter part of February, 1933, when she was transferred to the kitchen as cook. At that time, there was in the ceiling of the kitchen near the door a metal flue twelve inches square containing a twelve-inch motor driven suction fan for the purpose of ventilating the room. Sometime in March or April, the store manager, upon a complaint that the ventilation was not sufficient, caused the flue to be extended and a hood attached thereto thirty inches above the range. Plaintiff worked regularly in the kitchen until May 25, 1933, when she quit the employment of defendant. Two days later the county health officer, after inspecting the kitchen at the instance of the store manager, advised him the ventilation was inadequate and that a stronger fan should be installed.

Plaintiff introduced evidence tending to show that she was in good health, weighing 132 pounds when she entered the service of defendant; that her health was still unimpaired when she assumed her duties in the kitchen; that inadequate ventilation was evidenced by offensive odor and gas fumes; that a magazine rack in front of and close to the wall ventilator prevented or hindered the circulation of air through the opening; that the heat from the stove was intense; that the flue was extended and the hood installed about a month before she quit working in the kitchen; that during March, 1933, she gradually grew weak, anaemic and nervous; that she had pains in her chest and head, lost weight, and was subject to dizzy spells, fainting five times during the last three days she worked in the kitchen; that she weighed 113 pounds when she quit working and 105 pounds at the time of the trial; and that her disability is due to the breathing of carbon monoxide gas while working in the kitchen.

Defendant asserts that the flue was extended about two weeks after plaintiff began working in the kitchen; that the magazine rack was not close enough to the wall to interfere with the circulation of air through the ventilator; that the ventilation was adequate; and that tests for carbon monoxide after plaintiff ceased working were negative.

Plaintiff relies upon the testimony of Dr. D. L. Hill as supporting her contention that she is suffering from...