Alabama Power Co. v. Henderson

• Decision Date: 30 December 1976
• Parties: ALABAMA POWER COMPANY v. Roderick Henry HENDERSON. SC 1717.
• Court: Alabama Supreme Court

Page 323

342 So.2d 323

ALABAMA POWER COMPANY v. Roderick Henry HENDERSON.

SC 1717.

Supreme Court of Alabama.

Dec. 30, 1976.

Rehearing Denied March 4, 1977.

Brittin T. Coleman, Warren B. Lightfoot and Hobart A. McWhorter, Jr., Birmingham, for appellant.

Terrell Wynn and Alex A. Newton, Birmingham, for appellee.

EMBRY, Justice.

This is a construction site accident case. Plaintiff, Roderick Henderson, was an employee of Custodis Construction Company, a general contractor engaged in the construction of a smoke stack under a contract with Alabama Power Company. The cylindrical stack was being constructed by pouring concrete into metal forms which formed an inner and outer ring around the stack. Henderson was standing at the base of the stack when one of the forms bent and freshly poured concrete fell onto him. He suffered a 60% Permanent disability to his left shoulder and a broken leg which healed with minimal impairment; three and one-half years loss of work and numerous surgical procedures to correct the damage to his shoulder. The jury awarded plaintiff $500,000. Defendant Power Company appeals, alleging numerous errors for reversal. We find no reversible error, therefore affirm.

I

Alabama Power Company contends the evidence was insufficient to sustain a jury finding that it breached a duty owed plaintiff, as a proximate consequence of which he was injured. It admits responsibility for the kind of ingredients used in mixing the concrete and the quantity of each. It maintained employees at the concrete mixing plant to continuously check the mixture for suitability for use on this particular job; also maintained an employee at the construction site who supervised the pouring of the concrete at all times, and periodically checked the concrete for rate of hardening. The concrete mixture on the day of the accident contained plastiment, which makes the concrete more workable; it also increases the amount of time required for setting or hardening. Henderson's evidence tended to show that, due to the increase in the amount of plastiment in the mixture, the first one to two feet of concrete poured failed to set properly, and, when another three feet were poured, the hydrostatic pressure created by the soft concrete caused the form to buckle and the concrete to pour out. APC maintains that the forms, owned by Custodis, used to hold the concrete in place were faulty; that it, APC, had no duty to know the forms were not designed to hold a full load of wet concrete, or that it was necessary for the concrete to harden at any particular rate.

The evidence tended to show APC had great authority, control and supervision over the construction of the stack; evidenced by its contract with Custodis and by maintaining, through its employees, close supervision over the mixing and pouring of the concrete. The ultimate test of defendant's duty to use due care is the foreseeability of the harm which would result if due care was not exercised. Under the evidence APC was chargeable with knowledge: of the suitability of the forms for holding concrete; that the addition of plastiment retarded the rate of hardening of concrete, and failure of the concrete to harden properly would allow hydrostatic pressure to build and result in failure of the forms. The evidence was sufficient to authorize the jury to find APC owed a duty to Henderson which it breached and his injuries resulted.

II

Defendant challenges admission of opinion testimony of an allegedly unqualified lay witness. The witness, Harold Hatfield, an ironworker and construction worker since 1954, had been employed by Custodis since 1967. His testimony was offered by deposition. Objections to portions of the deposition were heard by the court out of the hearing of the jury. The following testimony was admitted over APC's objection: that the failure of the concrete to set up properly was responsible for the failure of the forms; it was his opinion that the forms bent because there was too much pressure; that the concrete had been poured for two and one-half hours and should have set up by then. APC objected to the admission of such testimony on the ground that the witness was not qualified as an expert on concrete or forms used in pouring concrete. It is notable that both sides presented testimony from other witnesses qualified as experts in the field of concrete and concrete failure.

The use of workers with long years of experience in certain trades and occupations to testify regarding particular elements or circumstances of their work is not unique. If the trial court exercises its authority to qualify the witness with reasonable care, its decision will not be disturbed. Here the trial court was aware of Mr. Hatfield's qualifications as a construction worker, and took care to allow only so much of his testimony to go to the jury as was deemed proper.

The competency of a particular witness of testify as an expert is discretionary with the trial court, its decision will not be disturbed unless palpably erroneous. We find no error regarding admission of the testimony of Hatfield. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

III

Improper conduct of a juror during the trial. During the course of the trial a man in the audience spoke to one of the jurors. He also spoke to Mr. and Mrs. Henderson. The court held an En camera hearing and took the testimony of a spectator who witnessed these 'conversations.' According to this testimony, as the juror rose from the jury box along with the other jurors, she asked the man in the audience, 'You are not working today?' He replied, 'No, we had a breakdown.' The spectator testified this was the only conversation he heard the juror have with this man. In Hatcher v. Camp, 279 Ala. 475, 187 So.2d 232 (1966), this court upheld denial of a motion for new trial on grounds of juror interference under similar circumstances stating that 'casual and ordinary civilities' exchanged between a party and a juror do not constitute reversible error, if the court clearly ascertains that it had no effect on the mind of the juror. The ruling of the trial court who heard the testimony in this case is presumed correct and we find no abuse of discretion on which to predicate reversal.

IV

Failure to exclude an allegedly intoxicated juror. On the morning the jury was to begin deliberation, it was brought to the court's attention that one of the jurors was suspected of having the aroma of alcohol on his breach. The court held a hearing in chambers and asked the juror numerous questions. The juror stated he had not been drinking that morning; that he had drunk some alcoholic beverages the night before, but not after 11:30 p.m.; that he felt he could continue with the jury's deliberation. APC's motion to strike the juror was overruled.

The fact that a juror drank intoxicating beverages during a trial or deliberation of a verdict is not grounds for a new trial unless the beverages were consumed in such quantities or at such time to incapacitate the juror from performing his duties, or unless it would be reasonable to conclude that the drinking may have influenced the verdict. Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563 (1907).

Again, this is a matter within the discretion of the trial court; due weight and consideration will be given the ruling of the trial judge who investigated the matter and had an opportunity to observe the juror. Diamond v. State, 219 Ala. 674, 123 So. 55 (1929). The record here shows a full investigation...