SAMMONS v. WEBB
33870
Court of Appeals of Georgia
DECIDED JUNE 13, 1952.
86 Ga. App. 382
The judgment of the trial court overruling the petition for change of venue on the ground that there is danger of mob violence is without error. As was hereinbefore pointed out, the judgment of the trial court is not reviewed as to that part of the petition for change of venue which was based on the ground that the defendant could not obtain a fair trial in DeKalb County. The trial court is directed to permit counsel if they so desire to file this bill of exceptions in the office of the clerk as exceptions pendente lite, so that the judgment of the trial court overruling the petition for change of venue on the ground that the defendant cannot obtain a fair trial in DeKalb County may ultimately be reviewed if counsel so desire.
Judgment affirmed with direction. Gardner, P.J., and Carlisle, J., concur.
Culpepper & Culpepper, contra.
“At common law duplicity is ground for special demurrer only, the objection being waived unless it is so taken, and the demurrer must not only assign it as a cause, but must point out wherein the duplicity consists.” 7 Encyclopedia of Pleading & Practice, p. 243, § V; Hoffman v. Louis L. Battey Post, etc., American Legion, 74 Ga. App. 403, 415 (39 S. E. 2d, 889); Carusos v. Briarcliff Inc., 76 Ga. App. 346, 353 (45 S. E. 2d, 802). Ground (a) of the defendant‘s objection to the amendment fails to point out wherein the amendment would make the petition duplicitous and the trial court did not err in overruling this ground.
While we recognize that there is a distinction between ordinary negligence and gross negligence, and also recognize that a cause of action for ordinary negligence is one thing and a cause of action for wilful and wanton misconduct (sometimes inaptly denominated wilful negligence) is entirely another, a petition wherein certain acts of negligence are described as ordinary negligence and as gross negligence does not contain two different causes of action. The court did not, therefore, err in overruling ground (b) of the objection to the amendment which complained that the amendment added a new cause of action by denominat
Objection is made to allowing the following testimony of the witness Dr. Ward over the objection that it called for a conclusion and opinion of the witness: “In my opinion the pilot of a plane flying 500 feet and circling Fitzgerald three times and making a circle three miles in circumference on a clear afternoon should be able to see the regular landing field.” The witness testified that he was a flight surgeon during World War II and in that capacity had had considerable experience with flying as a passenger. He also testified that he had examined the flying field in question from the ground, but had not flown over it. Negligence was alleged on the part of the defendant in failing to land the plane at a safe place, and one of the issues before the jury was whether the defendant ought to have been able to locate the airfield in Fitzgerald under existing conditions. Under these circumstances generally, a non-expert witness may testify as to his opinion when he states the facts upon which it is based, the effect of this evidence being for the jury. See Harris v. State, 191 Ga. 243 (9) (12 S. E. 2d, 64); Atlantic Mutual Fire Ins. Co. v. Pruitt, 62 Ga. App. 466, 483 (8 S. E. 2d, 427). Other witnesses testified without objection that the flying field was clearly visible from the air. The court resolved the doubt concerning the admissibility of this evidence in favor of the admission thereof, which is also the general rule. Purser v. McNair, 153 Ga. 405 (2) (112 S. E. 648). In view of other evidence on the same subject, it was in any event not harmful error. Shingler v. Bailey, 135 Ga. 666 (5) (70 S. E. 563) does not hold contrary to this ruling, for the question there, as to whether a person walking over lots of land where trees had been turpentined would be able to “see that possession had been taken of it” called for a conclusion of law as to whether the turpentining of trees amounted to possession of land.
The second special ground assigns error on the ruling requiring the defendant to reply on cross-examination to the query as to whether he did not consider the airport a safer place to land than the road. In view of the right to thorough and sifting cross-examination under
Error is assigned in the third special ground on the defendant‘s answer to a question propounded on cross-examination, which answer, assigned as error, is as follows: “I tried to get Dr. Ward to sign a certificate to the effect that I was not under the influence of alcohol at the time of this wreck. . . . He said he would but he would stipulate that it was on my breath. I decided that I didn‘t want it that way.” It is contended that this testimony was not relevant or material and was introduced merely for its prejudicial effect.
It is significant that the objection was not to the question but to the testimony of the defendant in response thereto. One of the issues in the case was whether or not the defendant was under the influence of an intoxicant. The testimony of the defendant thus elicited by cross-examination might have paved the way for other testimony tending to impeach him. It related to a material issue in the case. It was held in Torbert v. Cherokee Ins. Co., 141 Ga. 773 (3) (82 S. E. 134) that testimony concerning an interview between the defendant and a witness should have been admitted if the defendant was sought to be impeached on the ground that he was seeking to induce the witness to swear falsely, but its rejection was not error if he were merely seeking to obtain truthful evidence. In that case the court was unable to decide the purpose of the question. The question here is not set out, and, in view of the right to a thorough cross-examination above referred to, the case will not be reversed on this ground. In any event the ruling was not harmful, since the doctor testified he did not consider the defendant under the influence of liquor but that the odor was on his breath. Error in the admission of evidence is rendered harmless when similar uncontroverted evidence is admitted without objection. Sikes v. Wilson, 74 Ga. App. 415 (2) (39 S. E. 2d, 902). These grounds are without merit.
Error is assigned in the fourth special ground on the exclusion of testimony by a witness for the defendant that he had on another occasion seen another take off and land from the same roadway, using the road as an air strip. It does not
The charge requested in ground 6 to the effect that a guest, upon discovering negligence on the part of the pilot of the plane, would be under a duty to warn him thereof, was not correctly adapted to the facts of the case, since it is a question for the jury to determine whether or not, under the circumstances as they existed at the time, the duty to warn the driver devolves upon his guest in the exercise of the duty of self preservation. Hawkins v. Benton Rapid Express, 82 Ga. App. 819 (3b) (62 S. E. 2d, 612). The question is one of fact for the jury rather than one of law for the court as to what negligence on the part of the driver, when discovered by the guest, would create on the part of the latter a duty to warn the driver. See also McCord v. Benford, 48 Ga. App. 738, 739 (3) (173 S. E. 208). This ruling also applies to special grounds 8 and 9, in which requests to charge to substantially the same effect were also refused.
Complaint is made in the seventh special ground that the court refused to charge on request that there was insufficient evidence in the record to warrant a finding that the defendant was under the influence of intoxicants at the time of the crash. Special grounds 14, 15 and 20 complain of the following charge: “Now, gentlemen, the written contentions of the plaintiff, Mrs. Webb, are set forth in her petition and amendment thereto, and likewise the written contentions of the defendant, Mr. Sammons, are set forth in his answer. These papers, the plaintiff‘s petition and amendment thereto, and the defendant‘s answer, will be out with you. While they are not evidence, in that they have
The evidence discloses that the decedent had done very little flying himself, that what he had done was under the tutelage of the defendant, and that all he knew about flying aircraft had been passed on to him by the defendant. Under these circumstances the decedent might have justifiably relied upon the pilot‘s judgment rather than on his own. It follows, therefore, that the mere consent of the decedent to the defendant‘s action in landing on the road—which the defendant himself strongly contends was not negligence at all, but at most a mere error in judgment—would not be a bar to the plaintiff‘s recovery, and therefore the refusal to charge this principle of law in the form requested was not error.
A charge that, in order for the plaintiff to recover, she must prove by a preponderance of evidence that the defendant was guilty of negligence in at least one of the particular specifications of negligence set forth in her petition and amendment, is a correct statement of the law, and is not error for any reason assigned. Southern Railway Co. v. Bullock, 42 Ga. App. 495 (3) (156 S. E. 456). This is not in conflict with the holding in Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (4) (170 S. E. 493) since that case was reversed for error in overruling a demurrer to one of the allegations of negligence on the ground that such allegation created no liability on the part of the defendant, and the court further held that the charge that the plaintiff could recover on any one of the allegations of negligence
Special ground 5 is expressly abandoned. Special grounds 16, 17, 18 and 19 are incomplete in that they either make examination of the record as a whole necessary to their complete understanding, or fail to point out wherein the failures to charge without request on the subjects specified were erroneous or harmful to the movant. See Powell v. State, 25 Ga. App. 329 (3) (103 S. E. 174); Henley v. Brockman, 124 Ga. 1059 (4) (53 S. E. 672). These grounds are therefore not before this court for consideration.
(a)
One of the grounds of negligence which is alleged in the petition of the plaintiff to be the proximate cause of the death of her husband is in substance that the operator of said plane, the defendant, was grossly negligent in landing or attempting to land the plane on the road described in the petition, when he knew or, in the exercise of slight care and diligence, should have known that said road was an unsafe place to land the plane. The evidence is undisputed that at dusk on the afternoon of July 23, 1950, the defendant was operating his plane from Fort Valley to Fitzgerald; that the plaintiff‘s husband was riding with him as a guest; that the defendant was unable to locate the airfield at Fitzgerald and crashed the plane in an effort to land in a roadway some three or four miles west of Fitzgerald; that at the place where he attempted to land there were poles supporting REA electric power lines along the road; that the plane in attempting to land struck a guy wire which resulted in its crash and the death of the plaintiff‘s husband.
The evidence as to the time of the crash is fixed by the estimation of a number of witnesses as around 7:30 in the evening. However, G. C. Key, a witness for the defendant who lived on the road where the crash occurred at some point near it, testified in substance that the crash resulted in cutting off the electric power to his home; that he had an electric clock and that the suspension of the electric power caused the clock to stop at 7:40. There is no evidence as to whether the clock was on time or not. He further testified in substance, however, that it was “dusty dark” at the time of the crash. His testimony in this respect is supported by that of his son, Clyde Key. The defendant testified that he went over the area along the road prior to the crash to determine if there were any obstructions that would prevent his landing in the road. Mr. Key testified, however, in substance that he saw the plane a few moments before the crash
Questions of negligence are for the jury except in clear, palpable and indisputable cases. Johnson v. Wofford Oil Co., 42 Ga. App. 647 (157 S. E. 349); Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (154 S. E. 718); Central of Ga. Ry. Co. v. Leonard, 49 Ga. App. 689 (176 S. E. 137); Byrd v. Grace, 43 Ga. App. 255 (158 S. E. 467). Where reasonable minds might disagree, whether the conduct charged constitutes negligence, or whether such conduct, if negligence, has been proved, is exclusively a jury question. Jordan v. Lee, 51 Ga. App. 99 (179 S. E. 739); Georgia Power Co. v. Blum, 80 Ga. App. 618 (2) (57 S. E. 2d, 18). It is also a jury question where reasonable minds might disagree as to whether the negligence charged is ordinary or gross, or so charged with reckless disregard of consequences as to amount to wanton misconduct. Arrington v. Trammel, 83 Ga. App. 107 (62 S. E. 2d, 451). As Mr. Justice Bleckley stated in the case of Vickers v. Atlanta & W. P. Ry. Co., 64 Ga. 307, 308: “Where there is any doubt [when a jury question is presented] another method is to be used—a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.”
While the evidence as to intoxication was very weak, there was sufficient evidence on this subject for submission to the jury, as was pointed out in division 8 hereof. Evidence that a person “seemed to be drinking” at 2:30 p.m. is admissible on the question of whether he was drunk at sundown. Suggs v. State, 9 Ga. App. 830 (3) (72 S. E. 287). Where liquor was smelled on a man‘s breath, but he did not stagger, and the question at issue was whether he threw a glass of water in anger or as a result of his drunken condition, the defendant denying he was under the influence of intoxicants and offering an explanation for his conduct, this also was a jury question. Whatley v. State, 51 Ga. App. 26 (179 S. E. 587). It was equally a jury question here as to whether the defendant‘s attempt to land the airplane in an unfamiliar road at dusk was the result of intoxication or, as contended by him, an error in judgment.
Here, the jury was authorized to find that the defendant, who is an airplane pilot capable of night flying, and who was flying a plane properly and adequately equipped for night flying, with sufficient fuel to go to an airfield suitable for making a night landing, elected to attempt to land the plane on a roadway near a power pole to which was affixed a guy wire. If he flew along the roadway as above outlined at dusk, at a time when he could not have seen the guy wire by the exercise of slight care, a finding to which effect was authorized by the evidence, or if he did not fly along the roadway prior to attempting his landing thereon at all, as the evidence of the two witnesses named Key authorizes, a jury question was presented as to whether his attempt to land under these circumstances, and thus gamble his life and that of the plaintiff‘s deceased husband against the presence of the guy wire, which he himself testified he knew would wreck the plane if it was there, amounted to gross negli
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C.J., Gardner, P.J., Felton and Worrill, JJ., concur. Carlisle, J., dissents.
CARLISLE, J., dissenting. By the terms of
It is well established in this State that the duty owed a guest passenger, riding by invitation and gratuitously, in another‘s automobile is that of slight care; and the absence of such care is termed gross negligence.
While the various acts of negligence alleged in the petition as amended are described as both ordinary negligence and gross negligence, the evidence adduced upon the trial shows without contradiction that the plaintiff‘s husband was a guest passenger in the airplane of the defendant; the case was tried upon the theory of the breach by the defendant of his duty to exercise slight care to avoid injury to the plaintiff‘s husband; and the court in its charge to the jury confined and restricted the issue to the question of whether the acts of negligence charged constituted gross negligence. Accordingly, this court will confine itself to that issue in determining the question of the sufficiency of the evidence to support the verdict.
Gross negligence and slight diligence are defined in our Code: “In general, slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances . . . . The absence of such care is termed gross negligence.”
Questions of negligence and diligence, even of gross negligence
In an action for damages alleged to be the proximate result of several acts of negligence, if the plaintiff is to recover, it must be upon proof that one or more of the alleged acts of negligence was the proximate cause of the injuries sustained.
The negligence specified in the petition to be the proximate cause of the injuries to the plaintiff‘s husband is as follows: (1) operating the plane at such a low altitude as to make it unsafe to land the plane at the time and place at which it was landed; (2) the defendant‘s operation of the plane while under the influence of intoxicants; (3) the defendant‘s allowing the plaintiff‘s husband to become a passenger on the plane while he (the plaintiff‘s husband) was under the influence of intoxicants; (4) the defendant‘s landing or attempting to land on the road in question when he knew or in the exercise of ordinary care should have known that the road was an unsafe place to land the plane; (5) the defendant‘s failure to land the plane in a safe place with the use of the care and diligence required by law; and (6) the defendant‘s landing or attempting to land the plane at a place and in a manner that disregarded safety for the life of the plaintiff‘s husband who was a passenger in the plane. By amendment these acts of negligence were described as gross negligence and the case was tried upon the theory of gross negligence.
After close perusal of the evidence for proof of one or more of the acts of negligence charged in the petition, I nowhere find in the record evidence of any negligence which the jury could reasonably infer came within the statutory definition of gross negligence and which the jury could reasonably infer also was the proximate cause of the injuries sustained by the plaintiff‘s husband. True, it is uncontradicted, in fact admitted by the defendant, that he and the plaintiff‘s husband, at approximately 2:30 and 3:30 o‘clock on the afternoon of the day of the plane crash, both took drinks of whisky of approximately one or two ounces each on the two occasions; and it is also true that there is evidence that at the time the defendant and the plaintiff‘s hus
There is no evidence or circumstance from which the jury
Coming next to the questions of the proof that the road on which the defendant attempted to land his plane was an unsafe place at the time and that he was negligent in not attempting to land in a safe place and that these acts of omission and commission constituted gross negligence, we think that the most that can be said on this score, under the facts of this case, is that the defendant was guilty of an error in judgment. While it is true that there was evidence that the defendant‘s plane was equipped with lights and radio which would enable a pilot to fly it by night and to make night landings, and there was evidence that the defendant‘s gas supply was sufficient for him to have flown to an airport at which night landings could be safely made, I think that to have required the defendant to give up his trip to Fitzgerald and either to return to Fort Valley whence he came or to proceed some hundred miles further to an airport which was safe for night landings would have been requiring the defendant to exercise a great deal more than slight care. It is uncontradicted that the defendant could not find the airport at Fitzgerald; the road was straight for ten miles; the plane was thirty-three feet wide, from wing tip to wing tip; the road was from forty to forty-four feet wide, the fields of the environs were grown up in crops or grass and weeds; while the road was lined on one side with poles carrying telephone and electric wires and the defendant knew that such poles are frequently held in place by guy wires, he examined the situs of his proposed landing but found no such obstructions; and although it was “dusk dark” I think that if the defendant was negligent in attempting to land his plane under these circumstances, it certainly was not such negligence as could be characterized as gross. The crash was caused by the defendant‘s failure to discover the guy wire and flying his plane into it, and the burden of proving gross negligence can not be carried by a mere inference or presumption of negligence. See generally in this connection Minkovitz v. Fine, 67 Ga. App. 176 (19 S. E. 2d, 561), and cases there cited.