Price v. Am. Agricultural Chem. Co

• Decision Date: 08 October 1934
• Docket Number: No. 13919.,13919.
• Court: South Carolina Supreme Court
• Parties: PRICE. v. AMERICAN AGRICULTURAL CHEMICAL CO. et al.

176 S.E. 352

PRICE.

v.AMERICAN AGRICULTURAL CHEMICAL CO. et al.

No. 13919.

Supreme Court of South Carolina.

Oct. 8, 1934.

Appeal from Circuit Court of Richland County; W. H. Townsend, Judge.

Action by Mrs. Eva Price, administratrix of the estate of Harry B. Price, deceased, against the American Agricultural Chemical Company and another. To review an order of nonsuit, plaintiff appeals.

Reversed and remanded for a new trial.

John Hughes Cooper, A. F. Spigner, and Edwin II. Cooper, all of Columbia, for appellant.

Herbert & Dial, of Columbia, for respondents.

BLEASE, Chief Justice.

The plaintiff, as administratrix of the estate of her son, Harry B. Price, deceased, instituted this action against the American Agricultural Chemical Company and Victor R. Truesdale, its superintendent, for the recovery of damages on account of the death of the young man, alleged to have been occasioned by the negligence of the defendants. The trial, before his honor the late lamented Judge Townsend, in the court of common pleas for Richland county, resulted in a nonsuit as to both the defendants, and, from the order thereon, the plaintiff has appealed.

Certain facts developed in the evidence, offered by the plaintiff, appear to be admitted by both sides. But, even if they are not conceded by the defendants, it would be our duty to consider them in passing on the nonsuit order, since there was some testimony to establish their truth."

Young Price had been employed as a helper in the Cayce plant of the corporate defendant for several years preceding the time of his death. In his work, he was known as a "chamber walker." His duties consisted in "walking the chambers, " taking down "the readings of the temperature of the Fahrenheit thermometers"; he had to watch certain acid tanks, and see that they did not get too full and run over; the pumps, operated by an electric motor, had to be started and stopped by him; he took care of certain machinery, was required to make certain minor repairs, to keep it oiled and in working order; and was particularly charged with "dressing the belts" with a certain liquid, which, generally, was put on while the machines were standing still. In this work of dressing the belts, the employee had to come in close contact with the machinery, especially the belts. It was the duty of the chamber walker, and no one else, "to look after the switch"; that is, the starting and stopping of the machinery in his charge. When the tanks were getting too full of acid, and were about to run over, it wasnecessary for certain pumps to be put in motion by the throwing of the switch. Sometimes the chamber walker, when resting, and the machinery was not running, might sit on one of the big belts.

The plant was operated on Sundays as well as weekdays. The superintendent, Mr. Truesdale, in the discharge of his duties, on these Sundays visited the plant for inspection purposes. On the afternoon of Sunday, September 16, 1929, when young Price was at the plant, engaged in his duties as chamber walker, Mr. Truesdale made his usual visit "to see if everything was going well. He found that the chamber walker had not started the pumps an hour before, as they should have been started, and that as a result the acid tanks on the upper floor were about to run over and drench the plant with sulphic sulphuric acid. He called the chamber walker but got no answer. He then pulled the switch to start the pumps, which would relieve the very critical and dangerous situation. Upon hearing an unusual noise, he stopped the pump and found the body of the chamber walker (plaintiff's intestate) on the floor near the large air compressor. The guard rails around the air compressor were torn loose, apparently by the accident." Mr. Truesdale immediately called for the company's physician, and notified members of the young man's family of the accident. Upon the arrival of the doctor, young Price was found to be dead. No one was present in the plant when the accident took place and Price was killed except that young man and Mr. Truesdale.

The cause of the death of young Price, and the manner in which it occurred, in the evidence offered by the plaintiff, came from testimony given by Mr. W. H. Gibson, who, as a witness, related what had been told to him by Mr. Truesdale.

The trial judge ruled that the statements of the defendant Truesdale to Gibson, after the occurrence of the accident, were admissible only against Truesdale, and any statement made by Truesdale at the time was inadmissible against his codefendant, the chemical company. That ruling raises the first question involved in the appeal. We are of the opinion that the very learned circuit judge committed error in his ruling.

Gibson, on the day of the accident, was in the drug store conducted by Dr. W. A. Price, a brother of the deceased, in the city of Columbia, some two miles distant from the place of the accident. On his receipt of a telephone message as to the accident, Dr. Price, accompanied by Gibson, went hurriedly in an auto mobile to the scene. Dr. Price requested Gibson to obtain information as to the accident, while Dr. Price went to inform his mother of the death of her son. The conversation with Truesdale, related by Gibson, took place in the plant of the chemical company in the presence of Mr. Moore, general superintendent of the company, who was a superior official to Mr. Truesdale. At that time, the body of young Price was lying where he had been killed. The death of young Price occurred in the plant of the corporation defendant, where the young man was employed, and where, at the time, he was supposed to be engaged in the proper discharge of his duties to his employer. No one was present, except Mr. Truesdale, representative of the corporation, at the time the death took place. The body of the deceased, who, clearly, had been killed by the machinery of the corporation defendant, when Truesdale, and no one else, was present, was lying on the floor in the view of Truesdale, the superintendent of the corporation, of Mr. Moore, the general superintendent, and of the witness, Gibson, when the alleged statements of Truesdale were made. The mother and elder brother of the deceased were entitled to a true account from the employer as to how the death of the...