Redwing Carriers, Inc. v. Knight

• Decision Date: 20 September 1977
• Docket Number: No. 3,No. 54435,54435,3
• Citation: 239 S.E.2d 686,143 Ga.App. 668
• Parties: REDWING CARRIERS, INC. v. K. M. KNIGHT
• Court: Georgia Court of Appeals

Page 686

239 S.E.2d 686

143 Ga.App. 668

REDWING CARRIERS, INC. v. K. M. KNIGHT.

No. 54435.

Court of Appeals of Georgia, Division No. 3.

Sept. 20, 1977.

Rehearing Denied Oct. 28, 1977.

Lee & Clark, Fred S. Clark, Steve E. Scheer, Savannah, for appellant.

Duffy & Shearouse, Robert J. Duffy, Robert C. Shearouse, Savannah, for appellee.

WEBB, Judge.

At the core of this personal injury litigation is the physical property of hot liquid asphalt, or "resin," to congeal when cooled to a temperature of 190o F. The asphalt was transported in a tanker truck of defendant Redwing Carriers from Jacksonville, Florida to the Johns-Manville plant in Savannah, and plaintiff Kenneth Knight, an employee at the plant, was sprayed with hot asphalt when one of Redwing's hoses burst during the unloading operation. While virtually every aspect of this occurrence was in dispute at trial, the witnesses agreed that the asphalt would not flow through the hoses from Redwing's tanker into the plant's storage tanks, the apparent cause of which was the congealing of the asphalt either in the pump or hoses on Redwing's rig or in the connecting hoses of the plant.

In order to melt the asphalt and unclog the line Knight had been using a torch to heat either the pump and hoses on the tanker, according to his testimony, or the attached hoses of the plant, according to the testimony of Brooks, Redwing's driver. Brooks would try the pump located on the tanker and, when the asphalt would not flow, the pump would be turned off and Knight would squat under the tanker to heat the pump or hoses.

On at least one occasion during this procedure Knight had moved to a safe distance away when Brooks tried the pump. Brooks testified that on the final attempt he told Knight "Well, we'll try it again," entered the cab and engaged the pump, then climbed down and walked back 12 or 15 feet along the tanker to the control valve, which he opened after again telling Knight "We'll" try it again. " While Brooks testified that Knight had looked at him and must have heard him, Knight testified he heard nothing until he saw and heard the pump turning, whereupon he attempted to get away as fast as he could. The line burst, however, and both Knight and Brooks were showered with the hot asphalt, resulting in the present suit by Knight against Redwing.

The evidence was in conflict as to the proper and customary procedure to be followed in unloading the asphalt and as to whether it was being observed, and the usual questions were presented as to negligence proximate cause, contributory negligence, etc. The jury resolved these conflicts by awarding Knight $450,000, and this appeal followed. We affirm.

1. Redwing argues that its motion for directed verdict should have been granted because of the following testimony of Brooks' immediate supervisor: "Sir, the company rules at Redwing Carriers say nobody will heat put heat or cause heat to be put on a piece of Redwing equipment. I am the Terminal Manager and had I known it, the change would have been made right then."

We are cited no evidence showing that this prohibition was communicated to either Brooks or Knight; and since Brooks was performing acts within the class of service for which he was employed (driving and unloading the truck), we cannot hold as a matter of law that in allowing Redwing equipment to be heated he was outside the scope of his employment (Hagin v. Powers, 140 Ga.App. 300, 231 S.E.2d 780 (1976)), or that Knight in doing so was a mere "volunteer." Huddle House, Inc. v. Burke, 133 Ga.App. 643(1), 211 S.E.2d 903 (1974). In any event the evidence was in hopeless conflict as to whether it was, in fact, Redwing's equipment which was being heated, and this whole argument must therefore fall along with its major premise.

2. Redwing contends that the court erred in allowing juror Hill to remain with the jury after he disclosed that he would be prejudiced in favor of plaintiff's case because of a prior, similar injury. No harm befell Redwing, however, since the juror was the second alternate, was instructed by the court, out of the presence of the other jurors, not to discuss the prior accident with them, and was excused prior to deliberation.

3. Knight testified that upon being showered with the asphalt he was blinded but was so familiar with the premises that he was able immediately to grope his way toward the first aid station at the plant, a distance he estimated as "about like from here to that water fountain out that door (of the courtroom)." He testified: "Q. When did you first see Brooks? A. In the lab, after the accident, sir, in the lab. Q. Was he you saw him there or did you see him coming in? A. I saw him in the lab, sir. Q. He was in the lab? A. Yes, sir, because they were telling him to stop pulling the trying to pull the asphalt off, because it was pulling, you know, his skin and all off. Q. Tell who? I missed you. You said telling you or telling him? A. No, he wasn't telling me, sir; he was just talking, you know. Q. Somebody was telling somebody else about pulling the asphalt off, you said. A. Brooks was telling this while he was in the lab, to who was taking care of him, sir. Q. Brooks was telling the people in the lab I'm asking you about pulling asphalt off. A. He was pulling it off and they was telling Brooks to stop pulling it. Q. Okay. Was he talking when you first saw that? A. Brooks? Yes, sir. He was telling me, 'Mr. Knight, I don't know why I opened the valve; I'm sorry I opened it; I don't know why I opened the valve,' and I didn't ask him any questions because I was burning and they were trying to get ice packs on me and everything else."

Redwing objected to this evidence of Brooks' statement "on the grounds of hearsay" and argued that it did not fall within the res gestae exception to the hearsay rule because "it was beyond the point where this would be an excited utterance." The trial court ruled that the statement was made spontaneously by Brooks as part of the excitement of the event, and this court cannot rule otherwise under the circumstances. Code § 38-305; Green, Georgia Law of Evidence § 289 et seq.

While Redwing contends that Brooks had no authority to make an admission binding upon Redwing, this point was neither made nor ruled upon in the trial court and will not be considered here. "A reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below." Employers Commercial Union Ins. Co. v. Wrenn, 132 Ga.App. 287, 288(1), 208 S.E.2d 124, 125 (1974).

4. Redwing's terminal manager began to relate a statement made to him by a Johns-Manville employee two days after the occurrence, whereupon plaintiff objected that it was hearsay. Redwing responded with "He is deceased, and made a declaration against the interest, pecuniary interest, of Johns-Manville corporation at the time it was made and it was a knowing declaration." The trial court ruled the statement out, and Redwing complains in enumeration 9 that "The court erred in not allowing the defendant to introduce into evidence the statement of the deceased plant manager of Johns-Manville which was a declaration against the pecuniary interest of Johns-Manville."

This enumeration is without merit. Since Johns-Manville was not a party to the trial the statement could not come within the exception to the hearsay rule allowing admissions of a party-opponent (Green, supra, §§ 279, 233), and since there was no showing that the statement was against the interest of the deceased declarant it could not come in as a declaration against his interest. Green, supra, § 270 et seq.

5. Redwing contends that the court erred in allowing its driver Brooks to put on a demonstration in the courtroom at plaintiff's request over the objection that the conditions were completely different from those at the time of the injuries. Without the benefit of diagrams, models, photographs etc. used at trial we can make no independent determination as to the similarity of conditions, and the allowance of the demonstration was within the discretion of the trial court, its weight and credit being properly left to the jury to determine in conjunction with the other evidence as to the conditions.

"Generally, the discretion of the judge will be upheld where he refuses to permit the demonstration or does permit it." Agnor, Georgia Evidence § 15-4. No abuse of discretion has been made to appear.

6. Redwing complains in enumerations 5 through 7 of the sustaining of plaintiff's objections to the testimony of defendant's expert witness which was based upon hearsay. The court ruled "that this witness should base his expert opinion on his personal observations or on a hypothetical question which is based on other evidence already in evidence or evidence that you're going to put in" and not upon "what someone else told him."

Since this testimony was not as to value (City of Atlanta v. McLucas, 125 Ga.App. 349(2), 187 S.E.2d 560 (1972); State Highway Dept. v. Howard, 124 Ga.App. 76(2), 183 S.E.2d 26 (1971); Gulf Refining Co. v. Smith, 164 Ga. 811(2), 139 S.E. 716 (1927)), mental condition or some other recognized exception to the rule that an opinion may not be based upon hearsay, the trial court was correct. Agnor, supra § 9-7; Green, supra § 111. While it has been held that an expert may give his opinion without stating the foundation therefor and without a hypothetical question based upon other evidence, this rule applies where the expert's opinion is based upon "facts which he knows and has observed" (Corbin v. State, 81 Ga.App. 353, 354, 58 S.E.2d 485, 487 (1950)); and where it appears that the opinion is not so based but rather upon hearsay, the opinion is inadmissible. Perkins v. Perkins, 227 Ga. 177, 179(3), 179 S.E.2d 518 (1971); Paulk v. Thomas, 115 Ga.App. 436, 438(3a), 154 S.E.2d 872 (1967).

"The traditional view, still followed in most jurisdictions, has been that an expert may state an...