Opinion
38316.
DECIDED JUNE 16, 1960. REHEARING DENIED JULY 1, 1960.
Action for damages. Fulton Superior Court. Before Judge Pharr. February 17, 1960.
Ernest M. Smith, Grigsby H. Wotton, for plaintiff in error.
Greene, Neely, Buckley De Rieux, Edgar Neely, Jr., J. R. Goldthwaite, Jr., contra.
Since the petition discloses that the defendant company discharged its duty of intervention to prevent any probable injury to the plaintiff while crossing the picket line at its plant to the extent of furnishing him with a police escort, and since no facts are alleged to show that such escort was inadequate under the circumstances as they then appeared, no violation of the duty owing to the plaintiff on the part of the defendant company is set out, and the court did not err in sustaining the company's general demurrer to the petition against it.
DECIDED JUNE, 16, 1960. — REHEARING DENIED JULY 1, 1960.
Edwin L. Gossett filed his petition in Fulton Superior Court against Atlantic Steel Company and Local 2401, United Steel Workers of America, seeking to a recover damages for injuries sustained as a result of violence during a strike at the defendant company's plant. The petition alleged in pertinent portions that the plaintiff was employed by Southern States Equipment Corporation of Hampton, Ga., which corporation, among other things, handles channel iron and fabricated steel. In the early part of November, 1958, the defendant company notified Southern States Equipment Corporation that because of a strike by the defendant union it would be unable to process and galvanize certain steel which Southern States Equipment Corporation had previously delivered to the defendant company's plant and further requested that such steel be sent for and removed from its plant. On November 10, 1959, in response to this request, petitioner drove a truck to the plant of the defendant company in Atlanta and drove into said plant through the Mecaslin Street gate. At said time there were several members, agents and servants of the defendant union picketing the entrance to the plant. The steel which belonged to Southern States Equipment Corporation was loaded upon the truck which petitioner was operating and at approximately 1 p. m. on said date petitioner was preparing to drive said truck away from the defendant company's plant and property when several agents and servants of the defendant company and also the company's president came to petitioner where he sat in the truck and asked him to wait before leaving the property as the company would furnish him protection. At approximately 1:15 or 1:20 p. m. an employee of the defendant company came to the petitioner and directed him to proceed in his truck, stating: "You can go now; everything is all right." petitioner then drove the truck through the Mecaslin Street gate and proceeded in a southerly direction along Mecaslin Street, which passes through the property belonging to the defendant company. At this time there had gathered a large number of members, agents and servants of the defendant union around the gate of the defendant company and along Mecaslin Street abutting the property of the company, which persons were engaged in picketing. The protection which the defendant company stated it was furnishing petitioner consisted of one police car, manned by one policeman, and this car drove up a short distance behind the truck operated by petitioner soon after petitioner drove through the Mecaslin Street gate. After petitioner and driven 200 or 300 feet from Mecaslin Street gate of the defendant company, an automobile proceeding north along Mecaslin Street passed the truck operated by petitioner and cut in front of the police car following, thus blocking the police car from the truck being operated by petitioner. At approximately the same time, two members, agents and servants of the defendant union, who were engaged in picketing, hurled or propelled with sling shots or some other instrument, rocks, marbles or some other hard object at and against the right window of the cab of the truck which petitioner was operating, breaking the glass on said window. At the same time a member, employee, agent or servant of the defendant union who was engaged in picketing hurled a bottle containing gasoline or some other highly inflammable liquid, which had been ignited, against the left window of the truck operated by petitioner, shattering same and causing petitioner to immediately become covered with flames from said highly inflammable liquid. It is further alleged "that prior to November 10, 1958, there had been violence at and around the property" of the defendant company caused by agents, servants and pickets of the defendant union, "which fact was well known to the defendant" company on said date and that the company "was negligent and failed to exercise ordinary care in the following particulars, which were the proximate cause of petitioner's injuries and damages, to wit: (a) In failing to keep its premises and approaches safe; (b) In failing, after having invited petitioner to its premises, to keep the approaches thereto safe so that petitioner would have a safe means of ingress and egress; (c) In failing to provide petitioner with adequate protection; (d) In providing petitioner with an escort which consisted of only one policeman when it knew, or in the exercise of ordinary care should have known, that this would be inadequate protection: (e) In inviting petitioner into and upon a place which it knew, or in the exercise of ordinary care should have known, was dangerous; (f) In exposing petitioner to a danger which it knew existed without first removing said danger or providing petitioner with adequate protection against same; and (g) In inviting petitioner to a place where it knew or in the exercise of ordinary care should have known that violence would take place." The court sustained the general demurrer of the defendant Atlantic Steel Company and dismissed the petition as to it. On this judgment error is assigned.
No employment relationship between the parties is alleged in this case, but the petition seeks to hold the defendant steel company liable for injuries sustained by the plaintiff during a strike at the company's plant on the theory that it failed to exercise ordinary care toward the plaintiff as an invitee. Since the direct cause of the plaintiff's injuries was the conduct of the defendant company's employees while acting outside the scope of their employment or of third persons, the company can only be liable on this basis as a result of a failure to perform its duty to interfere so as to prevent probable injury to the plaintiff as an invitee. Great A. P. Tea Co. v. Cox, 51 Ga. App. 880 (2) ( 181 S.E. 788). As stated in headnote 3 of the Cox case, such duty of intervention does not begin until the danger is apparent or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. Here it is not alleged that the danger of injury was apparent to the defendant company when the plaintiff left the steel plant, and the only circumstance which would give notice of the probability of danger is the allegation that prior to that time "there had been violence at and around the property." Construed most strongly against the pleader, this allegation is not sufficient to show that the defendant company, in the exercise of ordinary care, should have anticipated from such previous violence the probability that one of the union pickets would throw an inflammable container inside the plaintiff's truck or that he would be exposed to personal injury under the circumstances. "Violence" in labor disputes is not limited to assaults or acts resulting in physical injury, but may include displays of force, unruly actions and other minimal forms of disturbance. See in this connection American Steel Wire Co. v. Wire Drawers c. Unions, 90 F. 608 (4); Esco Operating Corp. v. Kaplan, 144 Misc. 646 ( 258 N. Y. S. 303). In the absence of a specification of the acts of previous violence there is nothing to show that such violence was of nature sufficient to put the defendant company on notice of the probability of danger of assault and serve physical injury to one leaving its plant through the picket line.
The petition also seeks to charge the defendant company with negligence for failing to provide adequate protection to the plaintiff as he left the plant. Under the circumstances here alleged, any obligation on the part of the company to furnish such protection arises solely out of its duty of intervention previously discussed. Since the petition construed most strongly against the pleader alleges no facts to show that the defendant company in the exercise of ordinary care should have anticipated violence resulting in physical injury to the plaintiff, it does not disclose any negligence in this respect for which the company was legally liable.
Since the petition discloses that the defendant company discharged its duty of intervention to prevent any probable injury to the plaintiff to the extent of furnishing him with a police escort, and since no facts are alleged to show that such escort was inadequate under the circumstances as they then appeared, no violation of the duty owing to the plaintiff on the part of the defendant company is set out and the court did not err in sustaining the company's general demurrer to the petition against it.
Judgment affirmed. Nichols and Bell, JJ., concur.