Pick-Bay Co. v. Younkin
| Decision Date | 20 May 1971 |
| Docket Number | 1 Div. 643,PICK-BAY |
| Citation | 287 Ala. 103,248 So.2d 570 |
| Parties | COMPANY v. William Eugene YOUNKIN. |
| Court | Alabama Supreme Court |
William H. Hardie, Jr., Mobile, for appellant.
Conrad H. Fulton, Tuscaloosa, for appellee.
William Eugene Younkin, plaintiff below, brought suit against the operator of the Albert Pick Motel in Mobile, alleging he received personal injuries as a result of inhaling 'poisonous, noxious or harmful' paint fumes while occupying a room overnight at the motel.
The evidence tends to show that Younkin checked into the motel between 6 p.m. and 7 p.m. on September 18, 1968, and that he was assigned Room 208. Before entering the room, Younkin joined his fiancee (now his wife) and her parents in the dining room of the motel. Younkin testified that he entered Room 208 briefly to put his tote bag in the room, but that he did not examine the room and that he went immediately to the room occupied by the parents of his fiancee where he played cards until about midnight when he returned to Room 208 and went to bed without turning on any light, and without going to the bathroom. Younkin testified that he had nothing to drink during the night except a soft drink and that he ate some roasted peanuts while playing cards. He also stated that he was not advised that Room 208 had been freshly painted.
Younkin woke up the next morning with nausea and dizziness and he smelled paint fumes. After getting dressed and opening the door for some fresh air, he saw a man dressed in painting clothes. He asked if there was something that he could do to get rid of the paint fumes and the man came back and sprayed something in the room which did not get rid of the fumes. Younkin said he then inspected the room and determined that it had been freshly painted. He moved to the room occupied by the parents of his fiancee and remained there until later in the day when he was assigned a different room in the motel.
Younkin was taken to the emergency room of a Mobile hospital, examined and given medication. The record of his visit to the hospital bears the diagnosis 'Inner Ear Disease.' He remained in a room in the motel until September 21, when he was taken home to Tuscaloosa and was confined to bed. Subsequent examinations by doctors and tests made during a hospital stay culminated in a final diagnosis of 'Laberynthine disturbance toxic.'
Younkin was a student at Livingston State University at the time. He claimed that as a result of the illness caused by his inhalation of the paint fumes that his schooling was disrupted, that he had passed a physical in ROTC which showed him qualified to enter flight training with the Army, but that he failed a similar physical After the injury occurred and was disqualified to take flight training, and was consequently damaged in that he would not be entitled to receive 'flight pay.' There was also evidence that the inner ear impairment was permanent, and would be disabling for occupations requiring good ear function.
The case went to the jury on three counts of negligence. Pick-Bay defended on the ground that it was not negligent, and that Younkin was contributorily negligent or had assumed the risk. The jury returned a verdict in favor of the plaintiff for $15,000 and judgment was entered in accordance with the jury verdict. Defendant's motion for new trial was denied. Defendant's motion to strike certain costs of a deposition was denied. This appeal followed.
Pick-Bay argues eight assignments of error here, among which is one claiming the trial court erred in refusing to give the jury the affirmative charge with hypothesis.
We do not set out all the evidence but only enough to show that the court did not commit error in this regard. The evidence established that the room assigned to the plaintiff had been freshly painted; that the plaintiff was not warned about this; and that there were a number of vacant rooms to which plaintiff could have been assigned. The evidence tended to show plaintiff immediately retired upon entering the room, after returning from the room where he had been playing cards, without inspecting it, and in fact, without even turning on the light. When plaintiff awoke the next morning, he smelled the fumes and was nauseated and dizzy. There were several witnesses who noticed the strong odor the next morning. Unquestionably, the plaintiff was ill. Doctors who examined him diagnosed his condition as inner ear disease. Plaintiff's doctor testified that the inhalation of paint fumes could have caused the inner ear impairment.
The trial court's refusal of the affirmative charge with hypothesis requested by Pick-Bay was not error. In Alabama Power Co. v. Scholz, 283 Ala. 232, 215 So.2d 447 (1968), this Court held:
Appellant's Assignment of Error No. 11 claims the trial court erred in sustaining the plaintiff's objection to a question asked of defendant's witness, a chemist, as follows:
'Could you describe how strong the smell would be if the mineral spirits concentration were excessive of 500 parts per million?'
Assignment of Error No. 12 states that the trial court erred in sustaining plaintiff's objection to another question to the same witness:
'In your opinion, Mr. Martin, from the application of a paint of that type in a room, could the mineral spirits level reach a concentration excessive of 500 parts per million?'
Objection was made to each question on the ground that a proper predicate had not been laid. The trial court sustained each objection. We find no error in this respect.
In Sovereign Camp, W.O.W. v. Davis, 242 Ala. 235, 5 So.2d 480 (1942), this Court said:
(Emphasis added)
See also Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968).
Appellant's Assignment of Error No. 14 claims the trial court erred in charging the jury, in his oral charge, to which an exception was duly taken, as follows:
'Actual knowledge of danger is required for the doctrine of assumption of risk.'
Pick-Bay's plea No. 4 to the plaintiff's complaint denied the existence of harmful fumes in the room, but alleged that if the fumes were strong enough to cause injury that the plaintiff assumed the risk of any injury by continuing to occupy the room when he knew, or In the exercise of reasonable care should have known, of the existence of such fumes.
Appellant contends that the plea was sufficient, but even if insufficient, says that it was not tested by a demurrer and it must be treated as a proper defense, and that the court committed error in charging the jury that there must be actual knowledge of the danger for assumption of risk to apply. To support its argument appellant uses a rather novel, though unconvincing, approach. It says that this court has often stated that parties may frame their own issues, and thereby make immaterial matter material for that particular trial, citing Austin v. Clark, 247 Ala. 560, 25 So.2d 415 (1946).
In Austin v. Clark, supra, this Court made that statement, but pointed out that the plea there involved was clearly supported by the evidence, in fact, according to the opinion in Austin v. Clark, no evidence to support a contrary inference was offered. Therefore, our decisions seem to hold that there must be proof of the allegations of an immaterial plea before the rule...
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