Atlantic Refining Co. v. Peerson

• Decision Date: 13 July 1922
• Docket Number: 13464.
• Citation: 113 S.E. 116,28 Ga.App. 779
• Parties: ATLANTIC REFINING CO. v. PEERSON.
• Court: Georgia Court of Appeals

113 S.E. 116

28 Ga.App. 779

ATLANTIC REFINING CO. v. PEERSON.

No. 13464.

Court of Appeals of Georgia, First Division

July 13, 1922

Syllabus by the Court.

The overruling of the general demurrer to the petition as amended was not error.

The amended petition was subject to the third, sixth, seventh and ninth special grounds of the demurrer interposed.

The other special grounds of the demurrer were properly overruled.

The error in overruling some of the special demurrers to the petition rendered the further proceedings in the case nugatory.

Error from Superior Court, Glynn County; J. P. Highsmith, Judge.

Action by B. E. Peerson against the Atlantic Refining Company. Judgment for plaintiff, and defendant brings error. Reversed.

Bennet Twitty & Reese, of Brunswick, for plaintiff in error.

J. T Colsom, of Brunswick, and Little, Powell, Smith & Goldstein of Atlanta, for defendant in error.

BROYLES C.J.

The petition as amended (formal parts being omitted) was as follows:

"The petition of B. E. Peerson shows:

(1) That the Atlantic Refining Company, and hereby made defendant, is a corporation with an office, agency, and place of business in said state and county.

(2) That defendant has injured and damaged petitioner in the sum of $25,000 by reason of the facts hereinafter set out.

(3) That on the 5th day of September, 1919, petitioner was in the employment of the said defendant as a riveter.

(4) That at said time defendant was engaged in the construction of an iron smokestack, the same being 4 1/2 feet in diameter and about 72 feet long; that the same was constructed of curved steel or iron plates, joined and riveted together with iron rivets; and your petitioner at said time, together with other employees of defendant, was engaged in the construction of said smokestack, at the plant and upon the yards of the defendant near the city of Brunswick in said state and county; and that upon the day of the injury to petitioner said smokestack was practically complete, and was lying upon the ground in a horizontal position.

(5) That at said time and place and about 10:30 in the morning, the foreman of the defendant in the construction of said stack, and under whom petitioner was working, and who was his 'boss,' directed petitioner to crawl into said stack, and at a point approximately the middle of the stack to cut off the head of a certain iron rivet and then to drive the said rivet outward.

(6) That all tools used on said smokestack job by petitioner were furnished by defendant; and for the purpose of cutting off the head of said rivet and driving the same outward the defendant, acting through said foreman, specifically gave the petitioner and directed petitioner to do said work with what was commonly known as a B and O punch.

(7) That said B and O rivet punch was an iron tool, several pounds in weight, with a handle fastened to the center coming to a blunt pointed end on one end, and the other end being flat for the purpose of receiving the blow of a sledge hammer.

(8) That the petitioner in the discharge of his duties, and thus directed and with the tool as furnished, crawled into said stack to the point directed, and began the cutting off the head of said iron rivet, petitioner being accompanied by another employee of defendant whose duty it was to wield and

drive a sledge hammer against the flat end of said punch while said punch was held in position against said rivet by petitioner.

(9) That while thus engaged, and without fault on the part of said fellow servant, and as a result of an usual and ordinary blow by said sledge hammer upon the flat end of said punch, that a piece of the flat head of said punch burst off in pieces, causing pieces thereof to fly off with great force and violence, one of said pieces striking petitioner in the left eye.

(10) That said piece of iron or steel was driven with great force into petitioner's left eyeball; that petitioner suffered the most intense agony, and was carried to his home in said city, where he remained and was confined for four weeks; that for all of said time his pain and suffering, both physical and mental, were acute and severe, but that for the first two weeks he suffered intense agony, that the physician, in order to attempt to save said eye, would not remove said piece of iron therefrom, but permitted nature to remove the same from said eye, the same at the end of 12 days worked itself to the surface of said eyeball and was removed, but petitioner as a result of said injury was totally and permanently blinded in said eye; and the said eyeball itselfself was so injured that it became necessary for petitioner to have the same removed; that petitioner continues to suffer at times acute and throbbing pains in the region of said eye socket; that petitioner's earning power will be decreased and diminished for the balance of his life by reason of said injury, and that petitioner will for life be defaced and deformed by reason of the loss of said eyeball from said eye socket, and that the same causes petitioner, and will continue to cause petitioner, acute and never ending mental suffering and anguish.

(11) That at the time of said injury petitioner was a strong and able-bodied man and hale and did do a full day's work at his said trade.

(12) That at the time of said injury petitioner was receiving from defendant as wages the sum of $175 per month.

(13) That at the time of said injury petitioner was 45 years old, and had a reasonable expectancy in life of ___ years.

(15) Despite said injury and damage to petitioner in the said sum of $25,000, defendant fails and refuses to pay the same.

(16) That said defendant was negligent about the premises, and unlawfully caused said injury and damage to petitioner by reason of the following:

(a) In furnishing petitioner with an unsafe appliance and equipment with which to do his work.

(b) That said B and O punch should have been so constructed and tempered as that the same would not have shivered and burst as aforesaid, and thus cause petitioner to be injured and damaged as aforesaid.

(c) That said hammer was defective, and that the said defendant knew it.

(d) That the said punch was defective, and the defendant could have ascertained it by the exercise of ordinary care and diligence.

(f) That said tool was not reasonably safe for one who operated it with ordinary care.

(g) That it was the duty of the defendant to have made a reasonable inspection of said punch and instrument, which had it been made, the defendant would have learned of said defect.

(h) That it was the duty of the defendant and master to furnish a suitable punch for the due prosecution of the work for which the petitioner was employed; but that said punch, furnished as aforesaid, was not such a suitable instrument for the doing of the aforesaid specific work of cutting off the head of said rivet.

(i) That defendant was negligent in not furnishing petitioner with a tool equal in kind to that in general use, and

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