Gentry v. Swann Chemical Co.

Decision Date08 April 1937
Docket Number7 Div. 387
Citation234 Ala. 313,174 So. 530
CourtAlabama Supreme Court

Rehearing Denied June 3, 1937

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Action for damages for personal injuries by J.W. Gentry against the Swann Chemical Company. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

McCord & McCord, of Gadsden, and John D. Bibb, of Anniston, for appellant.

London & Yancey, of Birmingham, for appellee.

BROWN Justice.

This is a common-law action on the case, by the servant against the master, to recover damages for personal injury.

The complaint consists of four counts: The first ascribes the injury to a breach of the defendant's common-law duty to furnish the plaintiff with a safe place to work; the second undertook to charge willful or wanton conduct proximately causing the injury; the third is predicated on subdivision 1 of section 7598 of the Code, alleging defects in defendant's ways and works, machinery or plant; and the fourth on subdivision 2 of said section, ascribing the injury to the negligence of a person in the employ of the defendant to whom superintendence of the work and the men engaged in the work was intrusted.

The defendant's demurrer to the complaint was sustained by the trial court; in consequence, the plaintiff suffered a nonsuit and has appealed as authorized by the statute. Code 1923, § 6431.

The appellee insists, however, that the judgment of the circuit court is not a final judgment which will support the appeal.

The judgment, after sustaining the demurrer, recites that "plaintiff takes a nonsuit on account of the adverse ruling of the court, and it is ordered by the court that a nonsuit be and the same is hereby entered in this cause and the plaintiff pay the costs in this behalf expended, for which let execution issue."

While it is usual for such judgment entries to "let the defendant go hence," that is the legal effect of the judgment in the instant case, though it is not so recited in terms. Wood v. Coman et al., 56 Ala. 283; Alston v. Marengo County Board of Education et al., 224 Ala 676, 141 So. 658.

In the cases cited by appellee some of the elements of finality of the judgment there involved were lacking. In Martin v Alabama Power Co., 208 Ala. 212, 94 So. 76, 77 "the nonsuit is not granted by an order of the court." In Wallace v. Screws, 225 Ala. 187, 142 So. 572, the judgment did not tax the costs, and this, for the purpose of an appeal, was essential to the finality of the judgment. Davis v. McColloch et al., 191 Ala. 520, 67 So. 701; Ex parte Hendree et al., 49 Ala. 360. In Webb v. French, 225 Ala. 617, 144 So. 818, there was merely a recital "the plaintiff takes a non-suit with a bill of exceptions in order to review the several rulings." In Cooper v. Cooper et al., 216 Ala. 366, 113 So. 239, 240, "the judgment entry discloses only that the court sustained the motion of defendants to strike the complaint, and nothing more."

We are therefore of opinion that the judgment in the instant case is a final judgment, and that appellee's insistence is without merit.

The averments of inducement in counts 1, 3, and 4, in the main, are identical; the averments of inducement of the first count are adopted by said other counts.

The first count avers that the defendant, during the year 1934, was engaged in the business of making, preparing, mixing, and refining "Tri-Sodium Phosphate" in its plant in Anniston, Ala.; that plaintiff was in defendant's employ engaged in said work, and was required by the defendant corporation to perform the duties of his service in a room which was not ventilated, with the windows closed, and in the operation of said plant and machinery, the room was filled with fumes, dust, and small particles of the mixture, which fumes, dust, and particles circulated through the room in which plaintiff was required to work, which room was maintained by the defendant and furnished to the plaintiff as a place to perform the duties of his employment, and plaintiff in the exercise of his duties of his employment was forced to breathe and inhale said fumes, dust, and particles and that the same would settle on or stick to his skin and body and he was subject to the action of said fumes and dust and was ignorant of the qualities of said "Tri-Sodium Phosphate" or its effect on the human system, and of the effect of the fumes and dust arising from the manufacture, preparation, mixture, and refining of the same, and plaintiff avers that the defendant corporation by and through its servants and agents in charge of making, preparing, mixing, and refining said "Tri-Sodium Phosphate" and of the dust and fumes arising therefrom, knew of its effect upon the human system and knew that to inhale the same would inflame and destroy the lining of the nose and nasal cavities and throat and would cause great sores to appear upon the surface of the skin. "Plaintiff avers that with such knowledge he was negligently caused by the servants and agents of the defendant then and there acting within the scope and line of their duties of service to defendant to so labor and perform the duties of his employment in said room and as a proximate result, during the months of July, August, September, October, November and December, 1934, while so engaged in the duties of his employment to defendant he was made sick, his body became covered with sores, his health deteriorated, his digestion impaired, the lining of his nose and nasal cavities were inflamed, eaten and destroyed and he was caused to suffer severe sinus trouble, rheumatic pains, his nervous system broken down and disordered, his lungs impaired, caused to suffer great physical pain and mental anguish, to lose sleep, weight; and he lost his vigor and vitality and became less able to work and earn money and is permanently injured, all of which injuries and damages he avers did not appear suddenly, violently or by accidental means, but gradually appeared to grow progressively worse as a result of said continuous effect of said fumes and dust on the plaintiff's body or person throughout said months in the year 1934, and he avers he was so injured and damaged as the proximate consequence of the negligence of the defendant, to wit:"

The count charges that: "The defendant negligently failed to exercise reasonable diligence to provide plaintiff with a safe place in which to perform his work, in that he was caused to perform the duties of his said service in preparing, mixing, making and refining said Tri-Sodium Phosphate in a room, which was not ventilated, with the windows closed, and in the fumes and dust and small particles of said mixture which circulated through the entire room in which plaintiff was forced to work, to his full damage."

The second count avers that "defendant's servants and agents acting for the defendant, within the scope and line of their duties of services to defendant, with knowledge that plaintiff would be greatly injured and damaged thereby, wantonly, wilfully and intentionally, caused plaintiff to work in a room which was not ventilated, with the windows closed, which room was filled with the fumes, dust, small particles of a mixture being manufactured called 'Tri-Sodium Phosphate' the properties and effect on the human system of the same being unknown to the plaintiff, and as a proximate consequence, plaintiff sustained the injuries and damages" cataloged in the first count of the complaint.

The third count ascribed the injuries to a defect in the ways, works, machinery, or plant of the defendant, "which arose from or had not been discovered or remedied, owing to the negligence of the master or employer *** or some person in the service of said master or employer *** intrusted by it with the duty of seeing that the ways, works, machinery or plant were in proper condition, which defect consists in this: that part of the building and room in the same used by the said master or employer, The Swann Chemical Company, *** in the manufacture of said Tri-Sodium Phosphate, and in which plaintiff was required to work, had the windows and other means of ventilation welded down or closed so as to prevent proper ventilation for the employees while engaged in the manufacture of said Tri-Sodium Phosphate."

The fourth count ascribes the plaintiff's injuries to the negligence of "one Herbert Weaver, a person in the service or employment of the master or employer *** who had superintendence of the manufacture of said Tri-Sodium Phosphate at which plaintiff was engaged and of the plaintiff, and likewise of the portion of the plant and room where said manufacture was being conducted, intrusted to him *** whilst in the exercise of said superintendence negligently required the windows in said part of defendant's said plant and the room thereof to be closed down so as to prevent sufficient air in them while said Tri-Sodium Phosphate was being so manufactured by the plaintiff aforesaid."

The contention of appellant is that the averments "which injuries and damages, he avers, did not appear suddenly violently or by accidental means, but gradually appeared to grow progressively worse as a result of said continuous effect of said fumes and dust on the plaintiff's body or person throughout said months in the year 1934" under the influence of subdivision (i) of section 7596 of the Code, defining the meaning of the word "accident" as used in the phrases "personal injuries due to accident" in articles 1 and 2 of said chapter, meets the burden imposed on the plaintiff by section 7547, to show that his case is not governed by the Workmen's Compensation Act (Code 1923,§ 7534 et seq.) or comes within one of the exceptions stated therein. Kaplan v....

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