Mills v. Pharr

• Citation: 40 S.E.2d. 106
• Decision Date: 27 September 1946
• Docket Number: No. 31409.,31409.
• Parties: PEERLESS WOOLEN MILLS. v. PHARR.
• Court: Georgia Court of Appeals

40 S.E.2d. 106

PEERLESS WOOLEN MILLS.

v.PHARR.

No. 31409.

Court of Appeals of Georgia,

Division No. 2.

Sept. 27, 1946.

Rehearing Denied Nov. 7, 1946.

Syllabus by the Court.

1. Where the facts added by amendments to a petition show substantially the same legal wrong with respect to the same transaction in that the amendments show a continuation and repetition of the same legal wrong set out in the original petition, the amendments are not objectionable as adding a new and distinct cause of action.

2. The plaintiff's petition, which alleged that the plaintiff sustained personal injuries by contracting an occupational or industrial disease as the proximate result of the negligence of the defendant in failing to furnish plaintiff, its employee, with a safe place to work and safe tools and equipment with which to do the work for which he was employed and in failing to warn him of the latent dangers incident to his employment, known to the defendant but unknown to the plaintiff, set out a cause of action, as against a general demurrer.

(a) Where the allegations of a petition for damages for personal injuries show that the action was brought within two years from the negligence or breach of duty of the defendant which caused or contributed to the injuries sustained by the plaintiff, the petition is not subject to general demurrer on the ground that the cause of action is barred by the statute of limitations.

3. The plaintiff, who was injured by contracting an occupational or industrial disease known as dye or soap poisoning, which injury arose gradually from the character of the work in which he was engaged for the defendant, was not injured by an accident arising out of and in the course of his employment, within the meaning of the workmen's compensation act.

4. The trial judge did not err in allowing the amendments to the plaintiff's petition or in overruling the defendant's general demurrer to the amended petition.

Error from Superior Court, Walker County; C. H. Porter, Judge.

Action by H. L. Pharr against Peerless Woolen Mills for negligence resulting in occupational disease. There was a judgment overruling objections and allowing amendments to plaintiffs petition and a judgment overruling defendant's demurrer to amended petition, and the defendant brings error.

Affirmed.

On July 7, 1943, Herman Lee Pharr sued Peerless Woolen Mills for damages in the superior court of Walker county. His petition alleged, in part, substantially as follows: (5) That the defendant was engaged in the making and manufacture of cloth and woolen fabrics and as a part of said process, it washed the same; (6) that for approximately one year prior to January 1, 1942, plaintiff was employed by the defendant in its wash room, engaged in washing its products; (7) that in washing the cloth and fabrics, it was run through a washing machine filled with a solution of strong soap and water and an alkali solution, and in so doing, plaintiff used his hands in putting the cloth and fabric into the machine and in taking it out and his body and clothing became wet with these solutions while he was working and exposed to the same; (9) that plaintiff had a limited education and possessed no knowledge of the latent and hidden dangers attending the same; (10) that the defendant did not notify or warn him that said soap and alkali solutions would in any way affect or poison him or cause any disease; (11) that he was not furnished with gloves or protection for his hands and body to prevent his being poisoned by the soap and alkali solutions; (12) that on or about January 1, 1942, his body, from his waist line to his shoulders, and his hands broke out with a rash which gradually grew worse, the skin and flesh cracking and breaking at places on his hands to the bone, and his hands and body became raw therefrom; (13, 14) that this was caused by and was the result of his constant and continual contact and exposure to said soap and alkali solutions, whereby the same gradually affected his body and hands, poisoning the same, and he is now suffering with what is ordinarily known as dye or soap poisoning, which is an occupational dis ease; (15) that defendant employs a nurse to look after persons injured or becoming ill while in its plant; (16) that when the rash or eruption first appeared on his hands and body, he went to the nurse who treated him from about January 1, 1942, to April 1, 1942, and when the same continued to get worse, the defendant sent him to certain doctors for treatment at its expense and, about the same time, he was moved from the wash room into another department of the mill; (17) that he became some better on account of the treatment and the fact that he refrained from work and on or about August 1, 1942, he attempted to return to work and, upon going into the plant, he immediately broke out again with said rash and as a result thereof he was discharged by the defendant; (18) that since said date, he has continued to have places on his hands and it breaks out on his body during hot weather and, as a result, he is unable to work more than one-half the time; (19) that he had no knowledge said solutions would cause said poisoning and had no knowledge of the cause of the same until after he had been moved from the wash room into another department of the mill; (20) however, the defendant had knowledge that the same would cause poisoning but did not warn or tell plaintiff of said danger or the cause of his poisoning; (21) that plaintiff's condition is permanent; (24) that the defendant was negligent in that (a) it failed to furnish plaintiff with a safe place to work; (b) it failed to provide plaintiff with safe and proper tools and materials with which to work but required him to work with and in a strong soap solution and in an alkali solution, causing and resulting in the poisoning of plaintiff; (c) in failing to provide gloves or other suitable protection for plaintiff's hands and body so as to prevent said solutions from coming in contact with them; (d) in failing to warn and instruct plaintiff of the danger incident to his employment; (e) in permitting plaintiff to continue working in the wash room after the defendant knew he was being poisoned by coming in contact with the solution used in washing the cloth and fabric; (f) in failing to tell or warn plaintiff of the danger incident to said work, after the defendant knew he had been poisoned; (g) in using a solution of such strength in washing its cloth and fabric that would poison persons coming in con-tinous contact therewith. Judgment was sought in the sum of $25,000.

The plaintiff amended his petition by striking from paragraph 6 the words "one year" and inserting in lieu thereof the words "four months" and by striking from said paragraph the figures "1942" and inserting in lieu thereof the figures "1941"; by striking from paragraphs 12 and 16 the figures "1942" and inserting in lieu thereof the figures "1941" and by adding to paragraph 16 an allegation to the effect that the doctors who treated plaintiff were the agents and employees of the defendant, and that they never told plaintiff of the cause of his trouble and he did not know the cause thereof until shortly before he left the employment of the defendant in August, 1942; by adding to paragraph 17 an allegation to the effect that at the time he returned to work he did not know the cause of said rash and was not informed of its cause and that the defendant, in failing to notify him as to the cause of the rash and in permitting him to return to work, knowing the cause of said rash, was negligent, and that it was the duty of the defendant to notify him of the cause of the rash; and by adding a new paragraph to be known as paragraph 17A, as follows: "Petitioner shows that at said time that he returned to work he was practically well, and in so returning to work at said plant and coming in contact with said dye and soap aggravated said trouble and caused the same to return, when had he not done so he would have recovered entirely therefrom."

The plaintiff further amended his petition by striking from paragraph 17 the words "he immediately broke out again with said rash and as a result thereof he was discharged by the defendant" and inserting in lieu thereof "and in approximately two and one half days thereafter again broke out with said rash and has not worked in said mill for said defendant since that time"; and by adding allegations to the effect that when he returned to work in August, 1942, he worked in the finishing department where he came in contact with wool which had been dyed and washed with a solution of said strong soap and alkali; that at all times when he worked for the defendant, he came in constant and daily contact with products of the defendant which had been dyed; and that petitioner was depending on his memory alone in determining the dates and places of work.

The defendant objected to the allowance of the amendments upon the grounds (a) they set up a new cause of action, separate and distinct from that set out in the original suit; (b) that by the amendments, the plaintiff sought to recover damages for a tort committed in August, 1942, whereas his original suit was for a tort committed on or before January 1, 1941; and (c) because the petition as amended was not sufficient to take the case without the statute of limitations.

The trial judge overruled the objections and allowed the amendments, to which judgment the plaintiff in error excepted in its bill of exceptions.

The defendant demurred to the petition as amended upon the grounds (a) that the petition as amended set out no cause of action; (b) that the cause of action sued on was barred by the statute of limitations; (c) that by said amendments plaintiff set up a new cause of action; and (d) that plaintiff's petition disclosed that what occurred to plaintiff in August, 1942, was the result of an accident arising out of and in the course of his employment within...