Dorsey Trailers, Inc. v. Foreman, 4 Div. 749

• Court: Supreme Court of Alabama
• Writing for the Court: MERRILL; LIVINGSTON
• Citation: 69 So.2d 459,260 Ala. 141
• Parties: DORSEY TRAILERS, Inc. v. FOREMAN.
• Decision Date: 17 December 1953
• Docket Number: 4 Div. 749

Page 459

69 So.2d 459 260 Ala. 141 DORSEY TRAILERS, Inc.
v.
FOREMAN. 4 Div. 749. Supreme Court of Alabama. Dec. 17, 1953.

[260 Ala. 142]

Page 460

B. J. Dryer, Woodward, and J. C. Fleming, Elba, for appellant.

C. L. Rowe, Elba, for appellee.

MERRILL, Justice.

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 [260 Ala. 143] 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

Page 461

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...