DECIDED SEPTEMBER 26, 1958. REHEARING DENIED OCTOBER 21, 1958.
Action for damages. Fulton Superior Court. Before Judge Tanksley. May 21, 1958.
Smith, Field, Doremus Ringel, Palmer H. Ansley, for plaintiffs in error.
Poole, Pearce Hall, Stanley P. Herndon, contra.
1. There is no presumption that an employer and an employee are operating under the provisions of the Workmen's Compensation Act, nor is there any presumption that an employer has in its employ more than 10 employees so as to bring it within the purview of that act. Accordingly, a petition which alleges a cause of action for an injury which would otherwise come within the exclusive remedy provided by the Workmen's Compensation Act but which does not affirmatively show that the employer has in its employ 10 or more employees is not subject to general demurrer on the ground that the plaintiff's exclusive remedy is under that Act.
2. Whether or not the plaintiffs' exclusive remedy against the corporation for the injuries complained of in this action be under the Workmen's Compensation Act, this would not preclude him from proceeding in a common-law action against the individual tortfeasor, even though such tortfeasor be a fellow employee or officer of the corporation.
3. The petition in this case did not affirmatively show that the employee assumed the risk of the injury which he alleged he suffered, and the petition was not for this reason subject to general demurrer.
DECIDED SEPTEMBER 26, 1958 — REHEARING DENIED OCTOBER 21, 1958.
John Fowler sued Southern Wire and Iron, Inc., and Charles Z. Borochoff, its president, for damages on account of personal injuries sustained as the result of certain acts of the defendant Borochoff as set out in the petition. The defendant filed general and special demurrers, the petition was amended and the demurrers were renewed. The trial court entered an order overruling the renewed demurrers of both defendants, and the exception here is to the judgment overruling the general demurrer.
Insofar as is necessary to a clear understanding of the rulings here made, the petition alleged the following facts. The plaintiff was employed by the defendant as a stock and receiving clerk, and had been so employed for approximately two and one-half years prior to the date the injuries complained of were inflicted upon him. Some seven weeks prior to the date of the injuries complained of, the plaintiff and other employees became interested in being represented by a local labor union for the purposes of collective bargaining, and the plaintiff and the other employees attended meetings and held discussions to that end. The defendant Borochoff having learned of such meetings sought to persuade the plaintiff to divulge to him the names of employees interested and participating in the organization of the labor union. The plaintiff refused to divulge to Borochoff the information he sought and some days thereafter the defendant Borochoff, having sought in the meantime to persuade or compel the plaintiff without success to divulge the information, personally transferred the plaintiff from his job as stock and receiving clerk and put him to work "on an acid vat." The petition further alleged that:
"14. This acid vat was located in a different portion of the plant and was part of the operation of defendant company whereby metal table and chair legs, used in the manufacture of chrome plated kitchen and breakfast room furniture, were undergoing a process of chrome plating. Said legs, after having been placed in an acid solution, were removed and hung up to dry. 15. That the acid in which this metal was submersed was a strong solution which was not only unpleasant, but dangerous to human tissues unless proper rubber protective clothing and gloves were worn. 16. The said acid solution was capable of burning and destroying human tissue and ordinary articles of clothing and this fact was well known to defendant company and defendant Borochoff, but not known to petitioner, and other employees engaged in work which required them to come into contact with said acid were provided by defendant company with protective aprons, boots and gloves. 17. That petitioner was ordered to take a position at said acid vat, reach his hands into the solution, withdraw the pieces of metal and hang them up to dry and petitioner was not given any protective clothing or gloves of any sort. 18. When petitioner dipped his hands into said acid solution he felt a stinging sensation and asked if he should not wear protective clothing for this work. Defendant Borochoff answered in the negative and ordered petitioner to continue with the work. 19. Although the feeling of said acid on petitioner's hands was unpleasant, it was not so painful as to cause petitioner to realize that the acid solution was actually destructive to tissue. Petitioner was unfamiliar with said acid, had no knowledge of its character or content, and relied upon the direction of defendant Borochoff to continue work. Petitioner was not aware that said acid was doing damage to his hands and the stinging sensation was not, during the time petitioner was working at said vat, sufficiently severe to cause petitioner to realize that the action of the acid was causing more than a temporary unpleasant sensation. The pain, however, became more pronounced by the time petitioner was ready to quit work for the day and when petitioner quit work and washed up, petitioner realized that the sensation, instead of being temporary and harmless, was increasing in severity and was at that time becoming extremely painful. 20. Later during the day, one of the other employees of defendant company did bring petitioner a pair of old rubber gloves as to which the fingers had worn off or been eaten off by said acid and petitioner wore said gloves the remainder of that day."
It was further alleged that as the result of this "ordeal" plaintiff suffered certain burns to his hands, fingers, feet and ankles and that his throat and eyes were sore and painful as the result of fumes emanating from the said acid vat; that this alleged occurrence took place on a Friday and that petitioner returned to work on Tuesday when he was advised by an agent of the defendant corporation that if he still refused to "inform on any of his fellow employees" that he had two other choices, to quit his employment with the company or to go back to work in the acid vat, and that upon being thus informed, petitioner thereupon left the employment and has not since been employed by the company.
1. The first contention of the plaintiffs in error is that the petition as finally amended affirmatively shows that the plaintiff's exclusive remedy for the alleged injuries is under the provisions of the Workmen's Compensation Act (Code, Ann., § 114-101, et seq.). This contention is based on the further contention that the petition when construed against the plaintiff, as must be done on general demurrer, affirmatively shows that the defendant corporation has 10 or more persons in its employ, and that under the provisions of that act the plaintiff's exclusive remedy for any injury arising out of and in the course of his employment must be confined to the filing and the prosecution of a claim before the State Board of Workmen's Compensation. Code § 114-103. This contention is without merit. The petition does not affirmatively show that the defendant employer has as many as 10 employees in the same business within this State. "There is no presumption that an employer and an employee are operating under the provisions of the compensation act where the employer has less than ten employees in the same business within this State, and there is no presumption as to how many employees a particular employer has." Bussell v. Dannenberg Co., 34 Ga. App. 792, 796 ( 132 S.E. 230). There is no presumption in a suit by an employee against the employer that the compensation law applies, and no requirement that the petition negative that fact. Reid v. Lummus Cotton Gin Co., 58 Ga. App. 184, 185 ( 197 S.E. 904). In an action of this nature, if in fact the employer and employee had adopted the workmen's compensation act, this would be a matter of fact to be raised by way of affirmative defense and for proof as any other matter of fact arising in the case. However, this fact does not affirmatively appear from the petition, and the petition is not for that reason subject to the general demurrer of the corporate defendant.
2. However, the foregoing rule would not preclude a recovery by the plaintiff against an individual third party tortfeasor even though he be a fellow employee or corporate officer. Echols v. Chattooga Mercantile Co., 74 Ga. App. 18 (3b) ( 38 S.E.2d 675). For this reason, irrespective of whether or not the remedy available to the plaintiff against Southern Wire and Iron, Inc., is exclusively under the Workmen's Compensation Act, he is not by that reason precluded from proceeding in a common-law action against the defendant Borochoff, and the trial court, therefore, did not err in overruling the general demurrer of the defendant Borochoff.
3. The only other contention argued and insisted upon by the plaintiffs in error in this court is that the petition in this case affirmatively shows that the plaintiff voluntarily assumed the risk of the injury suffered by him when he chose to continue to work for the defendant corporation knowing that the acid in the vat was a dangerous and corrosive substance likely to cause the injury sued for. This contention, however, is without merit. The petition clearly presents a case the facts of which are within the ruling made in International Cotton Mills v. Webb, 22 Ga. App. 309, 310 ( 96 S.E. 16) where Judge Jenkins speaking for this court said: "2. Among the absolute, continuous, and nonassignable duties of the master to the servant is the duty of the former to furnish the latter a safe place to work, and to refrain from giving orders which will require the servant to put himself in a position where he will be subject to risk of injury from a dangerous instrumentality. Moore v. Dublin Cotton Mills [ 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (NS) 772]; Columbus Mfg. Co. v. Gray, 9 Ga. App. 738 ( 72 S.E. 273); Cherokee Brick Co. v. Hampton, 16 Ga. App. 53 ( 84 S.E. 328). But even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with the command in such cases, the servant be injured, he can not recover of the master therefor. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259 (6), 264 ( 58 S.E. 249). If, however, a servant, although an adult and fully cognizant of his general duty in reference to the machine, and aware of the dangers ordinarily incident to its operation, obeys a direct order of a servant authorized by his master to give the direction, in reference to the mode and manner of operating the machine, and injury results, the master is liable, provided the act required to be done is not so obviously dangerous that no reasonably prudent man would undertake to perform it. Moore v. Dublin Cotton Mills, supra. 3. While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment, so far as he has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied contract to the contrary. Thus, if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands him to proceed with the work and assures him there is no danger, then, unless the danger be so obvious and manifest that no prudent man would expose himself thereto, the law implies a quasi new agreement whereby the master relieves the servant from his former assumption of risk, and places responsibility for resulting injuries upon the master. Bush v. West Yellow Pine Co., 2 Ga. App. 295 ( 58 S.E. 529); Massey Felton Lumber Co. v. Ivey, 12 Ga. App. 583 ( 77 S.E. 1130); Cherokee Brick Co. v. Hampton, supra." See also, Hodges v. Murkison, 24 Ga. App. 739 ( 102 S.E. 134). It follows that the trial court did not err in overruling the general demurrers.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.