Honea v. West Virginia Pulp and Paper Company, 10445.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation380 F.2d 704
Docket NumberNo. 10445.,10445.
PartiesBen T. HONEA, Appellant, v. WEST VIRGINIA PULP AND PAPER COMPANY, a corporation, and Jervis B. Webb Company of Georgia, Appellees.
Decision Date30 June 1967

Gedney M. Howe, Jr., Charleston, S. C. (Joseph R. Young and Morris D. Rosen, Charleston, S. C., on brief), for appellant.

Wm. H. Grimball, Jr., Charleston, S. C. (D. A. Brockinton, Jr., Grimball & Cabaniss, and Brockinton & Brockinton, Charleston, S. C., on brief), for appellees.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

BOREMAN, Circuit Judge.

Attacked on appeal in this personal injury action are (1) the trial court's charge to the jury on the issue of assumption of risk, and (2) the court's refusal to submit to the jury the question of the defendant's willful, wanton and reckless misconduct.

Plaintiffs, Ben T. Honea and the Standard Accident Insurance Company, brought this action against West Virginia Pulp and Paper Company (hereafter defendant or Pulp Company) in the federal district court at Charleston, South Carolina, for injuries sustained by Honea on the defendant's premises. Honea was on Pulp Company's property pursuant to his employment as a welder with the Jervis B. Webb Company of Georgia (hereafter Webb) which was under contract to install certain equipment at defendant's plant located in North Charleston, South Carolina. Standard Accident Insurance Company, Webb's insurance carrier under the South Carolina Workmen's Compensation Act, paid Honea compensation for his injuries and joined his suit as a party plaintiff. Pulp Company, as third-party plaintiff, brought in Webb as a third-party defendant. Jurisdiction was based on diversity of citizenship and the amount in controversy in excess of $10,000.00. The jury rendered a verdict in favor of defendant. Perceiving no error, we affirm.

The contract between defendant and Webb provided that the latter would install a rollout table on the first floor of defendant's paper manufacturing plant. The paper was produced on the second floor of the plant and conveyed to the first floor by means of a lift or "lowerator."

The rollout table was to be installed immediately adjacent to the lowerator in order to expedite unloading procedure. There was an excavation, three feet in depth, next to the lowerator shaft and the beams and supports for the rollout table were to be anchored in the excavation. Work began on the project on Monday, September 25, 1961, and was proceeding in orderly fashion. Knowing that welding would be necessary, Webb contacted the Local Ironworkers Union for a welder and the union contacted Honea who reported for work on September 27. He was ordered to work in the excavation where he was to burn and weld girders and tighten bolts and he worked there from about 8:00 A.M. until noon when he stopped for lunch. At 12:25 P.M. he resumed work in the excavation at the same task. At about 1:00 P.M. while he was working with his back to the lowerator, with one leg in the shaft, the apparatus descended and crushed his leg beneath it.

The lowerator was described as being a hydraulic-powered lift, with a cylinder beneath it, similar to the lifts generally used in service stations. It had two sides but was open in the front and rear. The lowerator moved quite slowly and required from ninety seconds to two minutes to travel the distance between the first and second floors. It could only be moved from the second to the first floor by pushing a button on the second floor and was sent "blind" to the first floor. This was a safety device to insure that someone on the first floor could not summon the lowerator while persons on the second floor were in and about it. The upward movement was controlled by a push button on the first floor. When the apparatus was in motion a bell would ring to warn those in the area of its approach and there was a large red button on the first floor which, if pressed, would stop the lift within one to two seconds.

Honea testified that his welding work required him to wear goggles and a helmet in order to protect his face and that he was wearing such equipment at the time of the accident. While there was uncontradicted evidence that defendant's employees had warned Webb of the danger posed by the lowerator, Honea stated that he had not been warned of such peril. When working in the excavation he observed the cylinder but was unaware of the lowerator, so he said. He testified further that he did not hear the warning bell at the time of the accident.

Honea contends that defendant had assigned one member of a four-man crew to serve as a guard in the area of the lowerator and to push the stop button if a dangerous situation developed. It is suggested that Honea was unable to hear the warning bell because of the equipment he was wearing and because of the loud noises in the plant. Plaintiff produced at least four witnesses who testified that Willie Robinson, an employee of defendant, stood by and stopped the lowerator on the two previous days in which Webb's employees were on the defendant's premises. These witnesses included Robinson himself who characterized his job as lowerator guard and unloader. He stated that at the time of the accident he had moved away from the stop button at the front of the lowerator and was in the rear loading some paper onto a towmotor. Webb employees Travis Griffin, and his brother, Keith Griffin, foreman and supervisor respectively, testified that employees of defendant had warned them of the lowerator hazard at the time they came to the plant, two days prior to the accident, and that they in turn had warned Honea that the apparatus would be in operation and to listen for the warning bell. They further testified that on the two previous days Robinson had been at the stop button and that they had come to rely on him to stop the lowerator.

Evans, an employee of defendant, testified that, in addition to his other duties, Robinson served as a lowerator guard; that he saw the lowerator descending toward Honea and he shouted a warning but that it went unheard.

There was testimony by supervisors that Robinson was not a guard, that on the day of the accident the lowerator had made twelve to sixteen trips prior to the time of the accident and that the warning bell was ringing loud and clear.

The jury absolved the defendant of any negligence by its verdict in defendant's favor. Plaintiffs contend that it was error to instruct the jury on assumption of risk for the reason that this defense rests on a theory of contract rather than tort and is only available in actions by a servant against his master; and, that clearly there was no master-servant relationship existing between defendant and Honea.

We conclude that under South Carolina law, applicable here, assumption of risk is available as a defense in actions where a master-servant relationship exists but is available also where there is no such contractual relationship between the parties. The case of Baker v. Clark, 233 S.C. 20, 103 S.E.2d 395 (1958), makes this clear. There the plaintiff, who suffered injuries in a fall on defendant's premises, was denied recovery because she had been adequately warned and thereupon assumed the risk incident to walking on a slippery floor. She was a customer of defendant but had been given permission by defendant's employee to use the ladies' restroom which was provided for the use of defendant's female employees only. The Supreme Court of South Carolina assumed that plaintiff was an invitee and stated that it is well settled that "if a plaintiff freely and voluntarily enters into some relation with a defendant which presents obvious danger, he will be regarded as impliedly agreeing to look out for himself and to relieve the defendant of responsibility." Id. at 103 S.E.2d 396 (citations omitted). The court pointed out that

"There is some confusion in the cases as to whether a defense of this kind should be characterized as contributory negligence or assumption of risk. The two are closely associated. As pointed out by Professor Prosser * * *, in the early decisions the doctrine of assumption of risk was confined to cases arising out of the relation of master and servant but it is now recognized that the basis of the defense is not contract but consent, and that it is available in many cases where no contract exists." Id. at 103 S.E.2d 397. (Emphasis added.)

There are also several earlier cases permitting the defense of assumption of risk in factual situations where no master-servant relationship existed. See Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 60 S.E.2d 305, 30 A.L.R.2d 326 (1950); Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797 (1939); Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1939); Augustine v. Christopoulo, 196 S.C. 381, 13 S.E.2d 918 (1941). Discussion of these cases would seem to serve no useful purpose in light of the clear statement in Baker v. Clark, supra, 103 S.E.2d 395.

Plaintiffs cite several cases in support of their contention. None of these cases is concerned with the precise issue before us. In Cooper v. Mayes, 234 S.C. 491, 109 S.E.2d 12 (1959), the court did state that "assumption of risk, in its true sense, rests in contract, not tort," but the court did not exclude its application to other noncontractual situations. In Cooper a contractual relationship did actually exist in which plaintiff was employed by defendant to install a wiring system around defendant's farm. In the course of such work plaintiff was injured; he sued in tort for his injuries. The court was not concerned with a noncontractual relationship and its decision must be limited to the facts of the case. No mention was made of Baker v. Clark, supra, 103 S.E.2d 395, and we must assume its holding is still the law of South Carolina.

Lawless v. Fraser, 244 S.C. 501, 137 S.E.2d 591 (1964), also relied upon by plaintiffs, dealt with the...

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