Opinion
42137, 42138.
ARGUED JULY 5, 1966.
DECIDED SEPTEMBER 6, 1966.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
William E. Scott, Jr., for appellant.
Ross Finch, Claude R. Ross, Baxter H. Finch, Mundy Gammage, E. Lamar Gammage, Jr., for appellees.
1. The petition stated a cause of action, sufficient as against the general demurrer, for damages for the employee's injuries proximately caused by the defendant employer's negligence with regard to the use of dry ice in its business.
2. The special demurrers were properly overruled.
ARGUED JULY 5, 1966 — DECIDED SEPTEMBER 6, 1966.
Calvin J. McLarty and his wife, Ruth, brought separate actions against Miss Georgia Dairies, Inc., for damages for personal injuries sustained by Mr. McLarty while in the employment of and on account of alleged negligence of the defendant. The petitions alleged substantially as follows: The plaintiff employee worked for defendant, loading milk on milk trucks, from June, 1962, to February 19, 1963, and as a milk route salesman up to May 8, 1963. On February 12, 1963, the employee was required to help other employees pack bulk ice cream in dry ice in cardboard boxes for shipment. The defendant used refrigerated coolers on its milk trucks for shipping small quantities of ice cream and did not use dry ice at all therein. Although the dry ice had dangerous propensities, whereby contact of human flesh with it would result in physical injury, defendant had not furnished Mr. McLarty any gloves, tongs, or other apparatus by which to work safely with the dry ice, nor were there any warning signs posted or rules or regulations promulgated by defendant to protect him against this danger. At the time of the alleged injury, Mr. McLarty was unaware of the dangers inherent in the handling of the dry ice, but the defendant knew or could have ascertained these dangers and the necessary alleged precautionary measures. While Mr. McLarty was handling the dry ice on said date, a piece of it adhered to his right hand, inflicting on him alleged severe, painful and permanent personal injuries, involving a frozen right hand and fingers, requiring surgery and psychiatric treatment for an acute schizophrenic reaction of the paranoid type to the injury.
The proximate cause of the injuries is the following alleged negligence: "(1) In failing to furnish plaintiff with a safe place to work. (2) In failing to adopt and promulgate proper rules for the protection of plaintiff in the use of said dry ice, as aforesaid. (3) In failing to warn and instruct plaintiff of the dangers incident to his employment. (4) In failing to furnish proper tools and equipment to said plaintiff for use in the handling of said dry ice, as aforesaid. (5) That while full well knowing the danger of plaintiff's employment, and the probability of his injuries in the use of said dry ice, said defendant continued to fail to furnish proper safeguards, tools and equipment, so as to prevent plaintiff's said injuries."
The defendant filed general and special demurrers to the petition, from the overruling of which it appeals.
1. Under the so-called "assumption of skill" doctrine, the master is "`conclusively presumed to have knowledge of the nature of the constituents and general characteristics of the substances and things used in his business . . . [which] frequently make the knowledge implied against the master superior to that implied against the servant as to things used in connection with the master's business.' Beard v. Georgian Mfg. Co., 8 Ga. App. 618 (2) ( 70 S.E. 57). And, having such knowledge, the master is under a duty to warn his servant of the dangers involved. Code § 66-301." Genesco, Inc. v. Greeson, 105 Ga. App. 798, 802 ( 125 S.E.2d 786) and cit. The fact that the Genesco case, supra, and some of the case cited therein involved disease, rather than physical injuries, does not make them inapplicable here, since the master's duty with regard to both is equated in Connell v. Fisher Body Corp., 56 Ga. App. 203, 208 ( 192 S.E. 484), wherein it is stated that "it is just as much the duty of a master to use reasonable care to protect his servants against dangers of the employment which may reasonably be expected to produce disease as it is to use reasonable care to protect his servants against dangers of the employment which may produce physical injuries."
The proposition that the danger of the dry ice was an ordinary risk of the plaintiff employee's employment is negatived by the allegations that dry ice was not used in the milk trucks which he had been accustomed to working with, and that he was unaware of such danger. Nor can we say, as a matter of law and in contradiction of the plaintiff's specific allegation to the contrary, that the dangerous propensity of dry ice is one of "those primal forces which govern the universe and control all matter, and which come necessarily under the observation of every man, whether learned or unlearned, master or servant, during the entire term of his natural existence," which "must be held to be within his knowledge at all times and places and under all conditions." Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117, 122 ( 89 S.E. 158). The issues of negligence and diligence raised by the petition are not so plain and indisputable as to be susceptible of solution on demurrer. The court properly overruled the general demurrer.
2. None of the special demurrers is meritorious. The petition sufficiently alleged the defendant master's duty to his employee and the injuries which were proximately caused by the breach of such duty. The fact that the defendant might not have foreseen the particular type of injury which might result from its negligence does not prevent the plaintiffs from alleging and proving that such injuries were proximately caused by the defendant's negligence. Smith v. American Oil Co., 77 Ga. App. 463, 499 (2, c) ( 49 S.E.2d 90) and cit. The court did not err in overruling the special demurrers.
Judgment affirmed. Frankum and Pannell, JJ., concur.