Tennessee Coal, Iron & R. Co. v. Sizemore

• Citation: 62 So.2d 459,258 Ala. 344
• Decision Date: 06 November 1952
• Docket Number: 6 Div. 269
• Parties: TENNESSEE COAL, IRON & RAILROAD CO. v. SIZEMORE.
• Court: Alabama Supreme Court

Page 459

62 So.2d 459

258 Ala. 344

TENNESSEE COAL, IRON & RAILROAD CO. v. SIZEMORE.

6 Div. 269.

Supreme Court of Alabama.

Nov. 6, 1952.

Rehearing Denied Jan. 19, 1953.

Burr, McKamy, Moore & Tate and Greye Tate, all of Birmingham, for appellant.

Harsh, Glasser & Lankford and John L. Glasser, all of Birmingham, for appellee. The following charges were refused to defendant:

'9. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that the plaintiff had knowledge of the alleged inadequacy and insufficiency of the ventilating system in No. 11 Mine, but nevertheless continued in the employment of the defendant with such knowledge, then you cannot return a verdict for the plaintiff under either count of the complaint.'

'11. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that the plaintiff failed to file a grievance in the grievance procedure provided for by the alleged contracts concerning the inadequacy and insufficiency of the ventilation system in Ishkooda Mine No. 11, which said inadequacy and insufficiency was known to him, then I charge you that you cannot return a verdict against the defendant under either count of the complaint.'

'12. I charge you gentlemen of the jury that the plaintiff and his authorized agent, the International Union of Mine, Mill and Smelter Workers waived any alleged breach of the contract dated May 2, 1945 and as a result of such waiver you cannot return a verdict for plaintiff under Count A of the complaint.'

'13. I charge you gentlemen of the jury that the plaintiff and his authorized agent, the International Union of Mine, Mill and Smelter Workers, waived any alleged breach of the contract dated May 2, 1945 by executing the contract dated May 3, 1947 and as a result of such waiver you cannot return a verdict for the plaintiff under Count 'C' of the complaint.'

'16. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in the case that there was a failure of the ventilating system installed by the defendant as a result of the acts of plaintiff's fellow workmen in leaving the self closing doors open and failing to wet the muck and drilling dry, then you cannot return a verdict against the defendant under either count of the complaint.'

'6-A. I charge you gentlemen of the jury that if you are reasonably satisfied from the evidence in this case that the inadequacy and insufficiency of the ventilating system in No. 11 Mine was caused by the acts of plaintiff's fellow workmen, then you cannot return a verdict for the plaintiff under either count of the complaint.'

'A. I charge you gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the plaintiff knew of the defendant's alleged failure to install a proper ventilating system and notwithstanding such knowledge, nevertheless continued in the employment of the defendant in its said Mine No. 11, he waived any breach of the alleged contracts.'

Assignment of error 32 is based upon the overruling of objection to this question: 'From your observation of the mine and the condition in the mine and the fan they had, was the ventilation system there, Mr. Scruggs, adequate to remove the dust?'

FOSTER, Justice.

This case was tried upon counts A, C and E, counts 1, 2, B, D and F having been withdrawn by appellee.

Count A as amended alleged in substance as follows: That the appellant was engaged in the operation of iron ore mines known as Ishkooda Nos. 11 and 13, and that the International Union of Mine, Mill and Smelter Workers, a labor organization, entered into a written contract with appellant on January 14, 1943, on behalf of Local Unions Nos. 123, 153, 157 and 639, and that said written contract contained the following provision:

'Section 11--Safety and Health.--The company shall continue to make reasonable provision for the safety and health of its employees at the mines, or plants, during the hours of their employment. Protective devices, wearing apparel, and other equipment necessary to properly protect employees from injury shall be provided by the company in accordance with the practices now prevailing in each separate mine or plant. Proper heating and ventilating systems shall be installed where needed.'

The count then alleged the provisions of the contract, which recognized the International Union of Mine, Mill and Smelter Workers as the exclusive bargaining representative for all of the employees of the company, as defined in section 1 of the contract; that appellee was a member of Local Union No. 153, and that said contract was entered into in behalf of such local and for appellee's benefit.

The count further alleged the employment of appellee by appellant as a timber man in Ishkooda Mine No. 11 during the time of said contract, to wit, January 14, 1943, through, to wit, May 2, 1945; that large quantities of iron ore dust circulated in the air where the appellee performed his services; that appellant breached said contract in that:

'It failed to install a proper ventilating system in said Ishkooda Mine No. 11, although needed due to the fact that the ventilating system in use in said mine during the period of said contract was inadequate and insufficient to provide proper ventilation in said mine.'

In addition the count averred that as a proximate consequence of said breach of contract, appellee suffered his alleged personal injuries, impairment of earning capacity, and loss of earnings from August 30, 1947, to the present time in excess of $5,500. The count averred compliance with the provisions of said contract on appellee's part.

The averments of count C were substantially the same as those of count A, except that a collective bargaining agreement entered into on May 2, 1945 was averred. However, the language of the contract was identical insofar as here pertinent with the contract averred in count A. Appellee's employment under said contract was averred from May 2, 1945 through August 1947.

The averments of count E were substantially the same as those of count A, except that a collective bargaining agreement entered into on May 3, 1947 was averred subsection B of section 13--Safety and Health--of this contract, reading as follows:

'Protective devices, wearing appared and other equipment necessary properly to protect employees from injury shall be provided by the company in accordance with practices now prevailing in each separate mine or plant or as such practices may be improved from time to time by the company. Goggles, gas masks, face shields, respirators, special purpose gloves, fire proof water proof or acid proof protective clothing when necessary and required shall be provided by the company without cost, except that the company may assess a fair charge to cover loss or willful destruction thereof by the employee. Where any such equipment or clothing is now provided, the present practice concerning charge for loss or willful destruction by the employee shall continue. Proper heating and ventilation systems shall be installed where needed.'

Appellee's employment under said contract from, to wit, May 3, 1947 through August 30, 1947 was averred.

Appellant filed demurrers to each count of the complaint, which demurrers, as amended, were overruled.

The first question argued by appellant's counsel in brief is that those counts are uncertain and indefinite to the extent of being insufficient. That refers to the contract and its breach, for that it alleges an agreement in the contract to install a 'proper' ventilating system, and its breach in those terms, and that the contract does not require any specific sort of system, and the alleged breach does not aver what sort defendant failed to install. The contract provides that reasonable provision shall continue to be made for the safety and health of employees, and to provide when needed a proper ventilating system; and the breach is that defendant failed to install a 'proper' ventilating system. It is our view that this point is not well taken.

A witness, with due knowledge, may testify whether an act is as a matter of fact properly done. Atlantic Coast Line R. R. Co. v. Enterprise Cotton Co., 199 Ala. 57, 74 So. 232; McCarthy v. Louisville & Nashville R. R. Co., 102 Ala. 193, 14 So. 370; Glover v. City of Birmingham, 255 Ala. 596, 52 So.2d 521. (This also answers the 32d assignment of error.)

A contract to make reasonable provision for safety and health, and to install a proper ventilating system, is not too indefinite for performance. Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 177. Compare, Ollinger & Bruce Dry Dock Co. v. James Gibbony & Co., 202 Ala. 516, 81 So. 18.

'The general rule in that connection is that no great particularity is required in describing the breach of a contract, but the essential facts constituting the obligation should be set forth in unequivocal terms, and the breach be assigned with such particularity as will apprise the defendant in what respect he has failed to perform. All that is required is that the breach complained of be substantially set forth. But general averments without giving the nature or character of the breach may not be sufficient as defendant must be informed as to how or wherein he breached the contract. 17 C.J.S., Contracts, § 544, p. 1177; Woodward Iron Co. v. Frazier, 190 Ala. 305, 67 So. 430; Hart v. Bludworth, 49 Ala. 218.' Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594, 596; Norton v. Allaire-Woodwood & Co., 185 Ala. 344, 64 So. 609.

When measured by this rule, we cannot sustain appellant's contention.

It is also contended that an action for personal injuries to a servant must be grounded in tort and cannot be based on contract. This contention assumes that the several counts A, C and E, on which the trial was had, are in assumpsit on the contract. It is clear that they are thus framed. They are not based upon...