Alabama Packing Co. v. Smith

• Decision Date: 15 January 1920
• Docket Number: 6 Div. 980
• Citation: 85 So. 19,203 Ala. 679
• Parties: ALABAMA PACKING CO. v. SMITH.
• Court: Alabama Supreme Court

85 So. 19

203 Ala. 679

ALABAMA PACKING CO. v. SMITH.

6 Div. 980

Supreme Court of Alabama

January 15, 1920

Appeal from Circuit Court, Jefferson County; Dan. A. Greene, Judge.

Suit by Mabel Smith, as administratrix of the estate of Reuben Smith against the Alabama Packing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

James Barton and Harsh, Harsh & Harsh, all of Birmingham, for appellee.

McCLELLAN J.

Action for damages, instituted by appellee against appellant, for the death of Reuben C. Smith, which resulted from the explosion of an ammonia tank in appellant's refrigerating plant, and in the service of which intestate was employed and engaged when the explosion occurred. The case went to the jury under the averments of counts 1 and 3; the other counts being eliminated by instructions given the jury. Counts 1 and 3 both charged a defect in the condition of the way, work machinery, etc., within the purview of Code, § 3910, subd. 1; the averment being that the "tank" was defective, though in count 3 there is an allegation that the tank (connected with pipe and valve), later averred to be defective, was used to contain explosive gases produced by ammonia. The pleas set up the general issue and contributory negligence on the part of intestate, who was shown to have been in charge of the plant on this occasion. The review is confined to the only four errors assigned, the subjects of which are indicated in the opinion.

Two theories appear to have been entertained by the plaintiff as conducing to the establishment of the single subject of defect averred in counts 1 and 3. They were: First, that there should have been attached to the tank or receiver a "pop or safety valve," similar in function to that commonly applied or used on steam boilers, etc., there being evidence to the effect that the refrigerating process, through the use of ammonia produced a gas pressure that, if unrelieved automatically or by hand, would likely, if not certainly, attain a pressure sufficient to destroy the container; and, second, that the tank, averred to have been defective, was not originally well riveted or contrived to withstand the pressure, or that it had become weakened by time or otherwise, the rivet heads having fallen off as the result of age or corrosion.

The latter theory, the second, entirely depends for its support upon the testimony of the witness Bibb, who shortly after the explosion repaired a container. It is insisted in brief for the appellant that the tank or container Bibb repaired was not the ammonia receiver, tank, or container that exploded that the receptacle Bibb worked on was a water tank or container. From segregated, disassociated, parts of Bibb's testimony it would appear that this witness had reference to an ammonia tank or receiver; but a careful consideration, by the sitting members of this court, of the testimony of Bibb, discloses unmistakably, we think, that the container to which he had reference was a water tank, not an originally completely closed ammonia tank, a container that was "open" on one side, and, if so, was not of course, the tank that exploded from internal pressure. However if it is assumed that Bibb's testimony left in doubt the matter of the character of the receptacle about which he testified, so as to require the submission of this phase of the issue to the jury, the other evidence before the court was abundant to exclude and remove the possibility of any reasonable doubt in the premises, within the exacting rule of Cobb v. Malone, 92 Ala. 630, 635. 9 So. 738. The trial court should, in...