Hill Air of Gadsden, Inc. v. Marshall

• Decision Date: 29 April 1988
• Citation: 526 So.2d 15
• Parties: HILL AIR OF GADSDEN, INC. v. Richard MARSHALL. 87-172.
• Court: Alabama Supreme Court

Page 15

526 So.2d 15

HILL AIR OF GADSDEN, INC. v. Richard MARSHALL.

87-172.

Supreme Court of Alabama.

April 29, 1988.

Richard W. Bell of Bell, Maples & Associates, Pelham, for appellant.

Jack W. Torbert of Torbert and Torbert, Gadsden, for appellee.

MADDOX, Justice.

Hill Air of Gadsden, Inc. (hereinafter "Hill Air"), appeals from a judgment against it and in favor of Richard Marshall. Marshall sued Hill Air for damage to his Cessna 210 aircraft that occurred during a windstorm while the aircraft was moored at Hill Air's tie-down facility at the Gadsden Municipal Airport. The two theories Marshall included in his complaint were (1) breach of a bailment contract and (2) negligence.

Hill Air raised the affirmative defense of contributory negligence and further asserted that any and all damage to the aircraft was proximately caused by an act of God.

The case was tried before a jury. The trial judge denied Hill Air's motion for directed verdict, and the jury returned a $25,000 verdict for Marshall. The trial court entered a judgment thereon. Hill Air filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial, which motion was denied. This appeal followed.

It appears from the record that approximately six (6) months before the damaging storm, Marshall had contracted with Hill Air for the purpose of mooring his plane, for which service Marshall paid a monthly sum of $25.00.

In order to immobilize the aircraft, the tie-down facility provided a metal cable with two ropes attached, which were to be looped through rings, one ring affixed to the underside of each wing on the aircraft. The metal cable was secured to the tarmac. There was, however, no apparatus or method available for tying down the tail section of the aircraft.

In the late afternoon of April 5, 1985, a severe windstorm caused Marshall's Cessna 210 aircraft to overturn. The ropes from the wings to the cable were left intact, but the cable broke near one end. The resulting damage to the aircraft forms the basis of Marshall's claim.

Hill Air took the position during trial that the sole proximate cause of the damage to the aircraft was an act of God and that it was entitled to a directed verdict. We disagree.

In Louisville & N.R.R. v. Finlay, 237 Ala. 116, 185 So. 904 (1939), this Court stated that an act of God occurs only when there exists "the 'intervention of such an extraordinary, violent and destructive agent, as by its very nature raises a presumption that no human means could resist its effect.' " The Court added:

"The expression 'act of God' has been employed in various and broad senses by the authorities, such as an 'extraordinary convulsion of nature or a direct visitation of the elements, against which the aids of science and skill are of no avail,' or an 'accident produced by physical causes which are irresistible,' and other such expressions of like nature."

237 Ala. at 118, 185 So. at 905. The Supreme Court of Mississippi held that:

"No one is liable for an injury proximately caused by an act of God, which is an injury due directly and exclusively to natural causes without human intervention, and which could not have been prevented by the exercise of reasonable care and foresight. But an act which may be prevented by the exercise of ordinary care is not an act of God which would immunize a tort-feasor from liability."

City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827, 829 (1955).

We have reviewed the evidence, and we are of the opinion that the court did not err in refusing to direct a verdict in Hill Air's favor. The storm in this case was not such a bizarre occurrence that it could not have been logically anticipated.

It is interesting to note that an employee of Hill Air testified that there was an additional cable for a second line of planes located behind Marshall's plane,...