Smith v. Kennedy

• Decision Date: 16 August 1966
• Docket Number: 6 Div. 121
• Citation: 195 So.2d 820,43 Ala.App. 554
• Parties: Dollie K. SMITH et al. v. Jo Fay KENNEDY et al.
• Court: Alabama Court of Appeals

Page 820

195 So.2d 820

43 Ala.App. 554

Dollie K. SMITH et al. v. Jo Fay KENNEDY et al.

6 Div. 121.

Court of Appeals of Alabama.

Aug. 16, 1966.

Rehearing Denied Oct. 11, 1966.

Huie, Fernambucq & Stewart, Birmingham, for appellants.

J. J. Cockrell and Robt. F. Lewis, Birmingham, for appellees.

PRICE, Presiding Judge.

Mrs. Jo Fay Kennedy sued the defendants for damages for personal injuries consisting of burns on her neck, head and back, suffered while she was getting a permanent wave.

Her husband, William Oliver Kennedy, sued for loss of her services and for expenses incurred on account of the injury to his wife.

The two cases were consolidated for trial and were submitted here on one record.

The complaints were in two counts. Count One in each case charged simple negligence. Count Two alleged wanton injury.

Defendants pleaded the general issue, assumed risk, contributory negligence and a hold harmless agreement signed by the plaintiff Jo Fay Kennedy.

The plaintiffs' demurrers were sustained to the defendant's pleas II, III, IV and V. The cases were submitted to the jury under both counts of the complaint. The jury returned a verdict against the defendants for Mrs. Jo Fay Kennedy for $1,000.00, and in favor of William Oliver Kennedy for $500.00. Motions for new trial were denied. Defendants appeal.

The assignments of error are based primarily on the sustaining of plaintiffs' demurrers to pleas II and V in regard to the hold harmless agreement, and pleas III and IV, in regard to contributory negligence and assumption of the risk. Error is also assigned to the action of the trial court in refusing the general affirmative charge with hypothesis.

Pleas II and V read:

PLEA II

'For further plea and answer to the plaintiff's complaint, the defendants say that they have heretofore on to-wit: July 23, 1962, been released and discharged from all liability for any and all injuries arising out of the occasion as described in plaintiff's complaint, for that heretofore on to-wit: July 23, 1962, the plaintiff did, for a good and valuable consideration, agree to hold harmless the Birmingham Beauty College and any and all operators of said Beauty College, so that the plaintiff would in no wise hold the defendants liable or accountable for any injury or damage that might occur to her as a result of any work performed on her on the time and date as described in the complaint.'

PLEA V.

'For further plea and answer to the plaintiff's complaint, and to each count thereof, separately and severally, the defendants say that the plaintiff ought not to recover for that heretofore on to-wit: July 23, 1962, the defendant, Mrs. Dollie K. Smith, individually and d/b/a Birmingham Beauty College was operating a school for beauty culture and cosmetology, and the defendant, Robbie Reed, was a student operator therein, and further that on to-wit: July 23, 1962, before the work performed on the plaintiff by the defendants was begun, the plaintiff and defendants entered into the following agreement:

'HOLD HARMLESS AGREEMENT

(Student Operator Beauty School)

July 23, 1962

I, Mrs. W. O. Kennedy, residing at Trussville, Alabama, Route I, Box 735 do hereby acknowledge that I am fully aware that Birmingham Beauty College is a school for beauty culture and cosemetology, that the operators in this school are not being held out as skilled and trained operators, that for this reason, a reduction in the prices customarily charged is being made for this work.

Therefore, in consideration of the reduction in price given in this work, it is agreed and understood that I will in no wise hold the above named school, its proprietors, officers or agents, or any of its operators liable or accountable for any injury or damage that may occur to me as a result of work performed on me in this school.

Witness: Robbie Reed--signed: Mrs. W. O. Kennedy

'The defendants further aver that the student operator who performed the said work was a competent student operator but was not held out as being a skilled or trained operator, and further that for this reason, there was a reduction in the price customarily charged for the said work. Wherefore, defendants aver that they have been released and discharged from all liability for any and all injuries arising out of the work performed on the plaintiff, which said work is made the subject of the said complaint and each count thereof.'

In our opinion the pleas were subject to the demurrers. Under Alabama law a party may not by contract absolve himself from liability for the negligence of himself or his servants. Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So.2d 527; Gulf M. & O.R. Co. v. Scott, 32 Ala.App. 326, 27 So.2d 150.

Assuming, but not deciding, there was error in the sustaining of the demurrers to these pleas, it was error without injury. The 'Hold Harmless' agreement was admitted in evidence over plaintiff's objections, and all the facts and circumstances surrounding the execution of the agreement were fully developed on the trial. Wood v. Harper, 1 Ala.App. 422, 56 So. 10; Houston National Bank of Dothan v. Eldridge, 17 Ala.App. 235, 84 So. 430.

Pleas III and IV read:

PLEA III

'The defendant says that the plaintiff ought not to recover for that the plaintiff herself was guilty of contributory negligence in this: That the plaintiff knew the work to be performed on her was to be done by a student operator of the Birmingham Beauty College and not by a skilled and trained operator, and further the plaintiff did, with such knowledge and notice, negligently agree to the work to be performed by the student operator, and that plaintiff's said negligence did proximately contribute to cause her alleged injuries and damages.'

PLEA IV

'The defendants say that the plaintiff ought not to recover for that the plaintiff assumed the risk of injury or damage that might occur to her as a result of work performed at the Birmingham Beauty College in this: that the plaintiff knew that the work to be performed on her was to be done by a student operator not being held out as a skilled and trained operator, and further with said knowledge, the plaintiff did so agree to have the work performed by the said student operator.'

Demurrers were properly sustained to these pleas. The pleas omit the necessary element of appreciation of the risk. For the defenses of contributory negligence and assumption of risk to apply mere knowledge of the condition is not sufficient. There must have been 'an appreciation or consciousness of the danger.' Kemp v. Jackson, 274 Ala. 29, 145 So.2d 187. As to the wanton counts of the complaint, contributory negligence and assumption of the risk are not a defense. Anniston Electric & Gas Co. v. Rosen, 159 Ala. 195, 48 So. 798; Day v. Downey, 256 Ala. 587, 56 So.2d 656. The evidence for plaintiffs tends to show that on July 23, 1962, Mrs. Jo Fay Kennedy who lived at Trussville, Ala., and her sister, Mrs. Martha Glenn, went to the Birmingham Beauty College for the purpose of getting cold wave permanents. Robbie Reed, a student operator, was assigned to give Mrs. Kennedy's permanent and another student was assigned to Mrs. Glenn.

Mrs. Glenn testified that before starting her permanent she was given a big blouse to put on instead of the one she was wearing. The operator also placed a kleenex-type article called Sanek around her neck and then put a plastic cape over her shoulders, which hung below her waist front and back.

Mrs. Kennedy testified she was told to remove her dress and given an old dress to put on. She put this dress on over her underclothing. The operator put a thin towel around her neck but she did not use Sanek nor did she put a plastic cape over the dress. Her hair was first shampooed, cut and then rolled up on rollers. Then the operator put something from a bottle on her hair. The bottle was like a tube, with a little old thing on it. The girl mashed it and the solution ran onto her head. She waited a few minutes, ran cold water on her head and then put something else on it. The solution ran down her neck and back, onto her forehead and into her face. Witness kept wiping her forehead with a kleenex to keep it from getting into her eyes. She could feel it running down her back and the top of her slip, her brassiere, the top, neck, shoulders and back of the old dress and the thin towel were saturated with the solution. Her back came in contact with the back of the chair she was sitting in. She kept telling the operator the solution was running down her back and also told her it was burning, but the operator said it wouldn't hurt her and that she would put salve on it when she got through, but she never put anything on it, except after she combed her hair she put salve on some small places on her face.

After the permanents were finished and they walked out on the street Mrs. Glenn looked at Mrs. Kennedy's back and said it was very red. After they got home Mrs. Kennedy was still complaining of burning sensation and her husband looked and saw there were burns all around her neck, behind her ears and down her back. She was taken to the Leeds Hospital, at Leeds, Alabama, where she remained for about ten days under the care of Dr. Winston H. Erwin.

Dr. Erwin testified he saw Mrs. Kennedy in the emergency room of the Leeds Hospital on the night of July 23rd. She was suffering from 'second degree chemical burns of the neck, completely around and extends from the hairline to the shoulder on the sides posteriorily and from the chin to the clavicle, anteriorily, that would be from here to here. (Indicating).' He immediately gave her something for pain, dressed her burns with vaseline gauze-type dressing and admitted her to the hospital. She stayed in the hospital from July 23rd until August 2nd. The burns were redressed at intervals and she was given medication for pain. In his opinion she suffered considerable pain for the first few days. He stated: 'Well, of course as you...