Jackson v. Thompson

In an action for damages because of injuries or illness to a servant due to the alleged negligence of the master during the course of employment, where there is no evidence to sustain the alleged acts of negligence, or where the evidence offered disproves the alleged acts of negligence, either by showing an assumption of risk on the part of the servant, or that the negligence was that of a fellow servant, or otherwise by showing that the alleged negligence was not the proximate cause of the injuries or illness, the court did not err in the granting of a nonsuit upon the close of the plaintiff's evidence, after a motion for nonsuit by the defendant.

DECIDED JULY 8, 1948. Adolphus Jackson sued E. L. Thompson, doing business as E. L. Thompson Company, for damages on account of injuries allegedly sustained while employed by the defendant as a plasterer.

The original petition set out that the plaintiff had been employed by the defendant as a plasterer from November 15, 1943 until January 22, 1944, on construction work located at Parris Island, S.C., and that on or about January 1, 1944, as a result of his contact with the lime and cement preparation furnished by the defendant, the plaintiff contracted a painful and serious skin disease known as exfoliative dermatitis, and the defendant was charged with negligence in failing to advise or warn the plaintiff of the dangers incident to his employment, or to provide him with adequate or suitable protective clothing. In compliance with a ruling on demurrers to the petition, the plaintiff amended the original petition by adding allegations to the effect that the plaster and cement furnished by the defendant were defective and harmful; that they were not mixed in the proper proportions; that the lime content of the preparation was "of greater concentration, or higher potency, than it should have been;" that these acts were due to the negligence of the defendant and with no concurring negligence or fault of the plaintiff. The petition was amended a second time by adding allegations to the effect that the plaster preparation was an inherently dangerous substance, and that the defendant had been negligent in failing to provide the plaintiff with adequate protective clothing; in failing to provide adequate facilities to remove accumulations of the plaster from his body; and in failing to provide the plaintiff with a safe place to work in view of the dangerous potentialities of the plaster.

On the trial of the case the plaintiff, his mother, and two medical doctors testified. A restatement of the testimony of each would serve only to lengthen this statement, but from their testimony, the following evidence, material to a decision here, has been adduced: The plaintiff had been employed as a plasterer by the defendant in construction work at Parris Island, S.C., for slightly more than two months during the latter part of 1943 until January, 1944. During this period the employer did not furnish any protective clothing and did not provide any facilities for bathing. It was not customary in this type of construction work for the employer to furnish protective clothing or bathing facilities, but in the course of the plaintiff's experience on one occasion another employer had furnished the plaintiff with rubber gloves, and on one occasion another employer had furnished the plaintiff with bathing facilities. During the period of employment here involved the plaintiff would have used rubber gloves if he could have purchased them. He wore additional undergarments, and regularly used bathing facilities at his residence. The preparation used in the work consisted of cement, sand, lime, and water. Slacked lime was supposed to be used, but a fellow-employee had at one time used raw lime in the mixture, and for this he had been discharged. The plaintiff had nothing to do with the preparation of the mixture, which was furnished to him in his work as a plasterer. The plaintiff's home is in Atlanta, and he had followed this line of work for about ten years. He was about 27 years old at the time of this employment, and before he took up the trade as a regular occupation he had helped his father, who was employed in the same trade, since he was about 12 or 13 years old. In January, 1944, when he left Parris Island there were raw places on his arms and legs, burns caused by the plaster and cement. After this condition had developed he had worked about four days until the work was completed and he was discharged. In the past, on other jobs, he had had one or two similar burns on his hands and around his wrists. When he returned to Atlanta he entered Grady Hospital and was there for more than six months. The skin peeled off his body; his hair came out; he was unable to wear any clothes and part of the time had to have a tank over him to keep him covered up; and when he walked his legs and body would bleed. He reentered Grady Hospital at a later date and was there for more than three weeks. As a result of this illness he can not walk except with the aid of crutches, and is unable to work. Evidence was introduced as to his wages, earning capacity, medical expenses, etc. According to the medical testimony, the plaintiff's condition in all probability was exfoliative dermatitis and was due to an allergy or hypersensitivity to lime or cement, and this hypersensitivity was built up over a period of years by working with lime and cement, until a reaction finally occurred. It possibly could have been caused by other agents, although this is not probable, and there was no history in regard to the plaintiff to show that other agents caused the reaction. It was undetermined whether or not the wearing of protective garments would have prevented the reaction, but the possibility of such reaction would have been reduced. So long as the plaintiff keeps away from the causative agent, believed to be lime and cement, there will be no further reaction. Contact with lime or cement would produce the reaction, even if there was nothing wrong with the lime and cement.

Upon the close of the introduction of evidence by the plaintiff, the defendant moved for a nonsuit, which the court granted. The exception here is to that judgment. "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code, § 110-310. If the plaintiff fails to prove what he has thus alleged, or if he actually proves every fact charged, but on cross-examination or otherwise disproves his case by establishing beyond doubt the existence of other defensive facts which make it manifest that he ought not on the whole evidence to recover, a nonsuit should be granted. Evans v. Josephine Mills,119 Ga. 448, 450 (46 S.E. 674). "A motion to nonsuit presents for decision the single question whether or not the evidence introduced in behalf of the plaintiff, assuming it to be true, proves his case as laid." Reeves v. Jackson, 113 Ga. 182 (2) (38 S.E. 314). Also see Kelly v. Strouse, 116 Ga. 872,873 (4) (43 S.E. 280). In passing on the question of whether or not the court rightly awarded the nonsuit, the evidence must be taken most strongly in favor of the plaintiff. Stenger v.Mitchell, 70 Ga. App. 563, 566 (28 S.E.2d 885); Yeager v. Weeks, 74 Ga. App. 84, 85 (39 S.E.2d 84).

Except as to the allegations of negligence, there was sufficient evidence to authorize a jury to find in favor of the plaintiff on all essential allegations of the petition, including a finding that contact with lime and cement in the course of employment caused the plaintiff's disease, and the decision in this case must turn solely upon the question of whether any of the acts of negligence charged by the plaintiff in his petition were proved, or assuming that certain of these acts may have been proved, that the evidence at the same time did not prove these acts as being actionable negligence as against the employer. The plaintiff was a plasterer of more than ten years experience, who, by his own admission, had not been accustomed to receive protective clothing from an employer, or bathing facilities, and he must have been fully aware of the ordinary risks involved in his occupation. He stated he would have worn rubber gloves if he could have purchased them, and that he did wear extra undergarments, and regularly used bathing facilities at his residence. As to the ordinary risks involved in the occupation, there was an assumption of risk for which the master is not liable. Code, § 66-303. Furthermore, there is no evidence to show that the lime and cement preparation was inherently dangerous, or was defective and harmful, other than the evidence that quick lime rather than slacked lime was put in the mixture at one time. This single incident is not shown to have been connected with the illness, and was the negligence or misconduct of a fellow employee who was discharged by the employer for this act, and the master is not chargeable with the negligence or misconduct of other servants about the same business. Code, § 66-304. The principles contained in these Code sections have been affirmed many times by the Supreme Court and by this court. The evidence leads to the conclusion that contact with lime and cement of ordinary propensities over a period of years would and probably did cause the plaintiff's illness, irrespective of the negligence of anyone, and there is no proof as to the negligence of the employer as charged in the petition. One of the medical doctors, Dr. Glenville Giddings, who qualified his testimony by stating that he was not an expert on diseases of the nature of that contracted by the plaintiff, testified: "I don't think that the condition that Adolphus had itself would indicate that there was any change in the cement or plaster on this particular occasion. . . I don't think anything would necessarily have to happen to the lime or cement which would cause Adolphus Jackson to have a breaking out after that three and a half month's exposure under those working conditions. . . That is exactly how an allergic reaction is set up — by repeated exposure to some agent. I couldn't say that would indicate there was any change in the lime or cement. That isn't of particular concern. . . I think it is pretty general knowledge that if you are exposed to cement, which contains lime, that a so-called lime burn or cement burn will result in most cases. . . In an allergic condition, it is not the amount of substance that gets on the skin. The smallest minute particle theoretically will set off an allergic reaction, no matter how small it is." Dr. Howard Hailey, who qualified as an expert on skin diseases of the nature of plaintiff's illness, testified: "What I say is that some persons become sensitive to ordinary cement and ordinary lime. I do not intend to infer that there is anything wrong with the cement or the lime. I do not mean to say that the lime is of inferior quality. I do not mean to infer that the cement is of inferior quality. The regular Portland cement that is used in the building trade and the standard lime which is used by plasterers in the building trade will cause some persons who are sensitive to it to react and be allergic to it. . . Lime and cement and plaster or mortar are pretty commonly and generally known as caustic agents. It is pretty generally known in my opinion among people in this industry that lime and Portland cement and the substances with which this boy worked can cause this kind of occupational disease."

Counsel for the plaintiff in error earnestly invoke the doctrine of res ipsa loquitur. That doctrine would be applicable where the illness would not ordinarily happen without negligence and therefore negligence would be inferred on the part of the defendant who has control of the thing doing the damage, but here the evidence, particularly that of the medical doctors, disproves the inference of negligence, and serves to explain the cause of the plaintiff's illness. See Macon Coca-Cola Bottling Co. v.Crane, 55 Ga. App. 573 (190 S.E. 879); Minkovitz v.Fine, 67 Ga. App. 176 (19 S.E.2d 561); Chenall v.Palmer Brick Co., 117 Ga. 106 (43 S.E. 443); Palmer BrickCo. v. Chenall, 119 Ga. 837 (47 S.E. 329).

The cases of Middlebrooks v. Atlantic 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), and Peerless Woolen Mills v. Pharr, 74 Ga. App. 459 (40 S.E.2d 106), cited and relied on by the plaintiff in error, were before this court on rulings on demurrers, and the court was passing upon the question of whether there was a cause of action, assuming the facts to be true. The case at bar is here on a nonsuit, and there is no question as to the existence of a cause of action, but only that of whether the evidence supports the allegations of negligence in the petition. There are also factual dissimilarities in the above cases when compared with the present case.

In an action for damages because of injuries or illness to a servant due to the alleged negligence of the master during the course of employment, where there is no evidence to sustain the alleged acts of negligence, or where the evidence offered disproves the alleged acts of negligence, either by showing an assumption of risk on the part of the servant, or that the negligence was that of a fellow servant, or otherwise by showing that the alleged negligence was not the proximate cause of the injuries or illness, the court did not err in the granting of a nonsuit upon the close of the plaintiff's evidence, after a motion for nonsuit by the defendant.

Judgment affirmed. Felton and Parker, JJ., concur.