Thigpen v. Executive Committee of Baptist Convention of State of Ga.
| Decision Date | 01 December 1966 |
| Docket Number | 2,3,No. 42157,Nos. 1,42157,s. 1 |
| Parties | Rochelle C. THIGPEN v. EXECUTIVE COMMITTEE OF the BAPTIST CONVENTION OF the STATE OF GEORGIA |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The enumeration of error is sufficient to raise the question whether the petition as amended sets forth a cause of action.
2. The petition as amended alleged a cause of action against the hospital for damages for a disease contracted by its employee because of its negligence.
Mrs. Rochelle C. Thigpen brought a common law action against the Executive Committee of the Baptist Convention of the State of Georgia, d/b/a the Georgia Baptist Hospital, to recover damages because she had allegedly contracted the disease of hemolytic staphylococcus while in the employment of and on account of the alleged negligence of the defendant. The pertinent allegations of the petition as amended are substantially as follows: The defendant's hospital provides hospital and medical services to the general public. Plaintiff was employed as a nurse's aid in the hospital's nursery for premature infants from June, 1956, to December 11, 1958. Plaintiff commenced work as an 18-year-old high school graduate with no special training, education or knowledge in the field of medicine. Her duties consisted of bathing, changing of diapers and clothing, the giving of certain types of medication, the feeding, and all other types of handling required by said infants. Plaintiff had no knowledge, notice or warning of the danger of said disease in the hospital and in the nursery in which she worked. Defendant had knowledge of the danger of said infection, the same having been brought to the attention of its Infectious Disease Committee in June of 1958. During 1958 there were outbreaks of said disease in hospitals throughout the United States, of which defendant was aware, and during November and December there was an outbreak of the disease in the said nursery, of which plaintiff was unaware. Defendant failed to take the precautionary measures which it knew were necessary to prevent the entry of said disease into said nursery, such as more frequent changing of masks, better house cleaning, better testing and investigating, better record keeping, and warning employees of the danger of the disease, the inability of the body to combat it, and the extra precautionary measures necessary to avoid it. Defendant knew that hospitals generally and in this community were taking such proper precautions. By reason of the alleged negligence of the defendant, plaintiff contracted said disease while in the course of carrying out the duties of her employment with defendant. Plaintiff seeks damages for lost wages and loss of capacity to labor for about 5 months, cost of medical treatment, permanent scars, emotional distress and mental pain and anguish, past, present and future.
The allegations of negligence, alleged to be the proximate cause of contracting the disease and resulting damages, were: (1) Failure to take as many laboratory tests as needed under the circumstances to determine the presence and rate of incidence of said disease at plaintiff's place of work; (2) failure to warn plaintiff of the presence of said disease after its presence at her place of work was discovered; (3) failure to provide for plaintiff with a safe place to work; (4) failure to warn plaintiff of the presence of said disease at her place of work and of the incidence of extreme danger to her health and physical well-being; (5) failure to advise plaintiff of the proper precautionary measures to be taken to avoid contracting said disease; (6) failure to keep said hospital in a clean condition and failing to carry out effective house-cleaning and hospital cleaning procedures known to defendant to be effective in combatting the entry of said disease and the transmittal from one person to another of said disease; (7) failure to warn defendant's employees, including plaintiff, of the presence of said disease and dangers thereof, and of the precautionary measures to be taken to prevent contracting and transmitting said disease to others.
The defendant renewed its general and special demurrers to the petition as amended, and the court sustained the general demurrer, dismissing the action, from which judgment she plaintiff appeals.
Paul C. Myers, William I. Aynes, Merrell H. Collier, Atlanta, for appellant.
Haas, Dunaway, Shelfer & Haas, George A. Haas, Atlanta, for appellee.
1. The enumeration of error is as follows: 'The trial court erred in sustaining the defendant's general demurrer to the plaintiff's petition and the defendant's general demurrer to plaintiff's petition as amended.' The enumeration of error is sufficient to raise the questions whether the original petition set forth a cause of action and whether the amended petition set forth a cause of action whether error is specifically enumerated or not on the alleged error of the court's requiring an forth a cause of action the case should be reversed; if the amended petition set forth a cause of action the case should be reversed. If the latter is the case this court is not required to go further and hold that the original petition was subject to a general demurrer. In 1966 Code § 81-1001, as amended several times, was again amended by the addition of a new provision, as follows: 'Either party who amends or attempts to amend his petition or other pleadings in response to an order or other ruling of the court shall not be held to have waived his objection to such order or ruling, but may thereafter take exception thereto as in other cases.' Ga.L.1966 p. 452. The principal purpose of this amendment was to rid the law of a defect which has been in existence beyond the lifetime of any judges now sitting, a law which is regarded by practically a unanimous bar as supertechnical, unjust and which required an attorney to jeopardize his clients' rights by having sometimes to virtually guess what course he should follow-amend or not amend. If he elected to amend and added nothing, he lost his client's case even though his petition was good in the first instance. If he initially excepted to the order requiring the amendment and lost, he faced another prospect of appeal as to whether a later amendment sufficed to save his pleading. It was to eliminate these problems that the above amendment was passed. Its legal consequence is that the law of the case principle in such situations is no longer applicable when an amendment is filed to comply with an order of court. The amendment to the Code section deals with a procedural right and applies in this case as the amendment was enacted after the case was tried but before it was appealed. See City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759; Fulton County v. Spratlin, 210 Ga. 447(2), 80 S.E.2d 780; St. Paul Fire & Marine Ins. Co. v. Postell, 113 Ga.App. 862, 864, 149 S.E.2d 864.
The same conclusion would be required even if the amendment had not been passed. As we interpret the judgment of the court there was no disallowance of the amendment and no sustaining of the demurrer to the amendment. Although there is a recital in the order that 'it being found that plaintiff's amendment fails to overcome the defendant's grounds of general demurrer which were sustained * * * November 8, 1963,' the recital is simply a part of the order sustaining the general demurrer to the petition, as amended. The last order does not disallow or strike the amendment. The order allows the amendment to stand and then sustains the general demurrer to the petition as amended. In stating that the amendment fails to overcome the grounds of general demurrer the court does no more than to say that the petition as amended fails to set forth a cause of action. In this context we think that the rule in Folsom v. Howell, 94 Ga. 112, 21 S.E. 136 is to be applied (without the amendment), that is, the petition was opened to a fresh adjudication, which was made. Therefore we need deal only with the fresh adjudication.
2. Reduced to its essence, the petition alleges: (1) a duty on the part of the defendant to exercise ordinary care to provide the plaintiff a safe place in which to work, (2) a breach of such duty by the defendant's alleged negligence, which was the proximate cause of (3) the plaintiff's contracting of the disease at the defendant's hospital.
Although the defendant employer was not an insurer of the safety of its employees (Connell v. Fisher Body Corp., 56 Ga.App. 203, 208, 192 S.E. 484; Carter v. Callaway, 87 Ga.App. 754, 760, 75 S.E.2d 187), it had the duty to use reasonable care to protect them against dangers of the employment which might reasonably be expected to produce disease, and would be liable to the plaintiff employee for a disease contracted by her in the course of her employment, where such disease was brought about by the negligence of the employer. Connell v. Fisher Body Corp., supra; Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga.App. 620, 11 S.E.2d 682; Martin v. Tubize-Chatillon Corp., 66 Ga.App. 481, 17 S.E.2d 915; Peerless Woolen Mills v. Pharr, 74 Ga.App. 459, 40 S.E.2d 106. Of course a servant assumes the ordinary risks of his employment (Code, § 66-301), which are those incident to the business and do not imply the result of the master's negligence (Emanuel v. Georgia & Fla. Ry. Co., 142 Ga. 543, 83 S.E. 230), even if there be dangers attendant thereon (Self v. West, 82 Ga.App. 708(1a), 62 S.E.2d 424). Under the so-called 'assumption of skill' doctrine, however, whereunder the master's technical or scientific knowledge of his business makes the knowledge implied to him superior to that implied against the servant as to matters in connection with the business, the master is under a duty to warn his servant of the dangers involved. Code § 66-301; ...
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