Tennessee Coal, Iron & R. Co. v. Sizemore, 6 Div. 269

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

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.

[258 Ala. 346]

Page 462

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

[258 Ala. 347] Harsh, Glasser & Lankford and John L. Glasser, all of Birmingham, for appellee.

[258 Ala. 345]

Page 461

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 [258 Ala. 346] 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

Page 462

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,

Page 463

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[258 Ala. 349] 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.

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