Dorsey Trailers, Inc. v. Foreman
| Decision Date | 17 December 1953 |
| Docket Number | 4 Div. 749 |
| Citation | 69 So.2d 459,260 Ala. 141 |
| Parties | DORSEY TRAILERS, Inc. v. FOREMAN. |
| Court | Alabama Supreme Court |
B. J. Dryer, Woodward, and J. C. Fleming, Elba, for appellant.
C. L. Rowe, Elba, for appellee.
This is the second appeal in this cause. It was originally in this court as a result of an involuntary nonsuit taken by the plaintiff and is reported as Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 54 So.2d 499.
This appeal is from a judgment for $4,000 in favor of plaintiff, Mr. Foreman, against Dorsey Trailers, Inc., appellant here, for damages claimed on account of paint or lead poisoning. The cause was submitted to the jury under Count Two as amended, which charged wantonness in regard to the place of employment, and and Counts Three and Four, which charged wantonness under the Employer's Liability Act, Code of 1940, Title 26, § 326. Count Three alleged that the Plant Superintendent, Mr. Mayo Prescott, caused the plaintiff to work under enumerated conditions which were not safe because of improper ventilation. Count Four, also naming Mr. Prescott, alleged that he caused the plaintiff to work under the dangerous conditions with the doors closed and the places of ventilation closed. The appellant pleaded in short by consent. A motion for a new trial was denied.
The tendencies of the evidence show that plaintiff had worked as a spray painter for defendant since 1947. In August of 1948 plaintiff became sick and was sent to Dr. O. N. Edge of Troy for treatment. Mr. Prescott, as defendant's superintendent, went to see plaintiff and urged him to return to work, whereupon he was informed that plaintiff had had an attack of lead poisoning and that Dr. Edge had told him he could not stay around paint any more. Mr. Prescott told plaintiff that if he would come back to work he would give him a job outside the paint spraying stalls. Plaintiff took this matter up with Dr. Edge and Dr. Edge advised him that he could go back to work if he did not work in the paint stalls. Plaintiff told Mr. Prescott what Dr. Edge had said, returned to work on September 6, 1948, and was paid workman's compensation for the period of his disablement. He was made foreman of the spray painting operation upon his return.
The spray painting was done at defendant's plant in what are known as paint sheds or stalls. The stalls, several under one roof, were somewhat larger than the trailers which were painted inside of them. These trailers were typical of those which are attached to trucks for the hauling of freight. Some of the stalls had ordinary portable electric fans approximately 30 to 36 inches in diameter to force the fumes out through the front of the stalls. Ordinarily the doors to the stalls were kept open, but whenever it rained or it was windy enough to blow sand or dust, the doors on the front were pulled down. Usually two men with spray guns were in each stall painting the same trailer at the same time, but on some occasions as many as four or five men were painting in one stall simultaneously. The workmen were furnished respirators containing filters to be worn while they were inside the stalls painting. These were furnished free of charge by defendant.
The testimony of the plaintiff was in conflict with that of Mr. Prescott in that plaintiff testified that Mr. Prescott ordered him inside the stalls to do painting about half the time and that he needed a job and yielded to these orders; that he and the other painters used the respirators but sometimes the stock room would not have filters and they would have to paint without protection; that he reported this to Mr. Prescott on several occasions. Mr. Prescott denied these allegations but did agree that some painting took place with the doors closed on windy or wet days; that the spray guns did fill the booth with a cloud or fog of paint spray and that he knew that being subjected to the cloud or fog of paint would make a man sick, if he went into the booth without a respirator when the doors were closed. Other workmen testified for both plaintiff and defendant concerning the density of the clouds of paint spray and whether or not they could taste the paint when they wore the respirators and one painter said he stayed in a stall on one occasion long enough to be drunk on paint when he came out. There was also a conflict as to why plaintiff quit working for defendant. Mr. Prescott contended it was because he required plaintiff and another to repaint a job on their own time following which plaintiff did not return to work. Plaintiff contended that it was lead poisoning that caused him to quit. The contentions of both parties were substantiated in part by the record of plaintiff's claim for unemployment compensation.
Dr. J. C. Ray testified that according to the results of a laboratory test upon plaintiff dated April 17, 1952, that plaintiff had a low blood count, a usual symptom of paint poisoning, and a stippling, which 'is a blue deposit on the blood cell itself, which is diagnostic of lead in the blood', and that it is the normal result of lead poisoning. He further stated that in his opinion plaintiff is about 50% disabled 'in a general occupation line', 100% disabled as far as spray painting is concerned, and disabled 'to a great degree as far as application of paint by brush.'
Appellant has 120 assignments of error of which 66 are argued. All of these assignments, except No. 65, complain of the trial court's action in overruling the motion for a new trial. Some assignments are argued together in brief and if one of them is without merit, the others need not be examined. Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388.
Assignments of error 59 through 65 raise the question of the sufficiency of the counts in alleging wantonness. In Lovell v. Southern Ry. Co., 257 Ala. 561, 59 So.2d 807, 808, we said, "Wantonness' has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act, or omission of such duty, injury will likely or probably result.' P...
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