Beasley v. MacDonald Engineering Co.

• Decision Date: 30 June 1971
• Docket Number: 6 Div. 709
• Citation: 249 So.2d 844,287 Ala. 189
• Parties: Joseph Riley BEASLEY v. MacDONALD ENGINEERING CO., a Corp., et al.
• Court: Alabama Supreme Court

Page 844

249 So.2d 844

287 Ala. 189

Joseph Riley BEASLEY v. MacDONALD ENGINEERING CO., a Corp., et al.

6 Div. 709.

Supreme Court of Alabama.

June 30, 1971.

William M. Acker, Jr., Francis H. Hare, and Edward L. Hardin, Jr., Birmingham, for appellant.

Rives, Peterson, Pettus, Conway & Burge and Edgar M. Elliott, Birmingham, for appellee MacDonald Engineering Co.

Sadler, Sadler, Sullivan & Sharp, Birmingham, for appellee Liberty Mut. Ins. Co.

James E. Simpson, Birmingham, for appellee Alabama Gas Co.

C. A. Stewart, Jr., and Robert B. Huie, Birmingham, for appellee Raybestos Manhattan, Inc.

London, Yancey, Clark & Allen and Braxton W. Ashe, Birmingham, for appellee Band-It Co., Inc.

Spain, Gillon, Riley, Tate & Ansley and Ollie L. Blan, Jr., Birmingham, for appellees Mason & Dulion Co., Inc. of Alabama and Sullivan, Long & Hagerty, Inc.

SIMPSON, Justice.

On rehearing, the original opinion is withdrawn and the following is substituted therefor as the opinion of the court.

This appeal is from a final judgment of nonsuit entered by the Circuit Court for the Tenth Judicial Circuit on April 18, 1969.

The appellant (plaintiff) filed suit in the Circuit Court for the Tenth Judicial Circuit against MacDonald Engineering Company; F. L. Smidth Company; Raybestos-Manhattan, Inc.; Sullivan, Long & Hagerty, Inc.; Mason & Dulion Co., Inc. of Alabama; Band-It Company, Inc.; Alabama Gas Corporation; and Liberty Mutual Insurance Company, seeking to recover damages for injuries which he sustained in an explosion of natural gas occurring near the lime kiln where he was working at the Powderly plant of Alpha-Portland Cement Company in Birmingham, Alabama.

The plaintiff was not an employee of any of the named defendants. Each defendant was charged with a particular act of negligence, alleged to have combined and concurred to proximately cause plaintiff's injuries. Basically, the allegations were that a section of defective rubber hose contained within a badly designed fuel injection system became disconnected, causing the natural gas to suddenly escape and explode. F. L. Smidth & Company is out of the case on a motion to quash service, the plaintiff not complaining here of that ruling. Stated generally the claims against the defendants, MacDonald Engineering; F. L. Smidth; Raybestos-Manhattan; Sullivan, Long & Hagerty; Mason & Dulion; and Band-It Company are all based upon a theory of manufacturer's liability. The claim against Liberty Mutual is based upon its undertaking to provide safety engineering at the Alpha-Portland premises. The claim against Alabama Gas is based on allegations of its failure to warn of an obvious defect after direct access to the defect by an expert employee of Alabama Gas.

I. We look first to the Liberty Mutual case.

Resolution of the issues with respect to Liberty Mutual requires two determinations:

First, whether the plaintiff has stated a valid common-law action against Liberty Mutual in this case; second, if so, whether the plaintiff's cause of action against Liberty Mutual had been taken from him by the Alabama Workmen's Compensation Act.

A. The common-law question.

We see no occasion to refer to the averments of each of the four counts of the amended complaint. Plaintiff's cause of action against Liberty Mutual is stated in Count Four of the amended complaint in the following language:

'Plaintiff avers that prior to, to-wit, March 11, 1965, defendant, Liberty Mutual Insurance Company, a corporation, had and maintained the Workmen's Compensation liability insurance coverage on said cement plant at Powderly owned by plaintiff's said employer, Alpha-Portland Cement Company; that said defendant had maintained said insurance coverage for a considerable period of time prior to, to-wit, March 11, 1965; that pursuant to representations contained in said defendant's advertising and promotion of its said Workmen's Compensation insurance and pursuant to and in compliance with the terms of its insurance policy covering said plant, said defendant prior to, to-wit, March 11, 1965, undertook to inspect the said plant at Powderly in order to determine its safety and to improve and to promote its safety, and said defendant further undertook to provide a safety engineering service to said plant; that one or more of said defendant's employees, acting within the line and scope of his or their employment for said defendant, on more than one occasion prior to, to-wit, March 11, 1965, actually entered the said plant and actually entered the room in the plant where the kiln and the rubber hose here involved were located, for the said purposes of inspection and safety engineering, but that on those occasions they negligently failed to perform said inspection and safefy engineering service properly; that said defendant negligently failed to advise plaintiff's said employer to correct an unsafe and dangerous condition as to the said rubber hose in the fuel injection system, which said condition would have been obvious to any one skilled as a safety engineer, and which said rubber hose became disconnected at the time of the accident. Said defendant's said employee or employees either knew of the said unsafe and dangerous condition or should have known it by an exercise of reasonable diligence. The said obviously unsafe condition consisted of the use of a section of brittle rubber hose, not securely fastened, in a high pressure gas line. Plaintiff and other employees of Alpha-Portland Cement Company in said plant knew of the said undertakings by said defendant to inspect and to provide a safety engineering service to the plant and knew of the actual presence of one or more of defendant's employees in the plant for said purposes before, to-wit, March 11, 1965 and plaintiff relied upon said undertakings for his safety. As a proximate consequence of said negligence, the rubber hose did become disconnected near the kiln, the gas ignited and plaintiff was injured and damaged as hereinafter set forth.'

It is the contention of Liberty Mutual, as raised by its demurrer, that the complaint herein is defective in that it does not allege any common-law or statutory duty owed by Liberty Mutual to the plaintiff in these circumstances. The question is, as we see it, whether or not the complaint states a cause of action under the common law arising from the negligent performance of a voluntary undertaking.

This theory originated with the case of Coggs v. Bernard, 2 Lord Raymond 909. Since then it has come to be recognized that liability can arise from the negligent performance of a voluntary undertaking. This state, at least as early as 1911, recognized that "when a person undertakes an employment, which requires care and skill, whether for reward or not, a failure to exert the measure of care and skill appropriate to the measure of such employment is negligence for which an action will lie." Parker & Bro. v. Hodgson, 172 Ala. 632, 635, 55 So. 818, 819. There it was held that while an excavator on an adjoining lot was not under a duty "to brace, underpin or otherwise protect the walls of buildings on adjoining lands' * * * yet if he 'undertakes to do this he is liable for failure to use reasonable skill and care in the performance of the work." Citing 18 Cyc. 550; City of Covington, etc. v. Geyler, etc., 93 Ky. 275, 281, 19 S.W. 741. To like effect is Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932), where a count was held good against demurrer where the 'gravamen of the count is the negligence of the defendants in performing the work which they voluntarily undertook, and as a proximate consequence of such negligence the plaintiff suffered injuries.' This court went on to say,

'The subject-matter ofthe defendants' voluntary undertaking as alleged * * * was the rear steps of the building occupied by the plaintiff as a residence, and the voluntary undertaking was to repair the steps so as to make them reasonably safe for use, and, if defendants failed to so repair the steps in a workmanlike manner so as to make them reasonably safe, and as a proximate consequence the plaintiff was injured, the defendants were liable. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362.'

This rule has been stated by the American Law Institute, Restatement of the Law, Second, Torts 2d, § 324(a), as follows:

'Liability to third persons for negligent performance of undertaking. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

'(a) his failure to exercise reasonable care increases the risk of such harm, or

'(b) he has undertaken to perform a duty owed by the other to the third person, or

'(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.'

In this case it is not questioned that the employer, Alpha-Portland, owes a duty to its employees to provide a reasonably safe place to work. It is not disputed that Liberty Mutual was not under any obligation to undertake this duty itself. However, it is alleged that Liberty Mutual did undertake to inspect the premises for safety and to provide safety inspections. Having done so, under the common law as expressed in our cases, Liberty Mutual was under a duty to use due care in the performance of this undertaking. As Justice Cardozo said, 'It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.' Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425.

It was in recognition of this common-law theory of liability--i.e., that one who volunteers to act though under no duty to do so, is thereafter charged with the duty of acting carefully--that legislatures have passed the...