Sammons v. Webb
| Decision Date | 13 June 1952 |
| Docket Number | No. 2,No. 33870,33870,2 |
| Citation | 86 Ga.App. 382,71 S.E.2d 832 |
| Parties | SAMMONS v. WEBB |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where, after the argument of a case in this court, one of the parties dies, it is unnecessary to make the representative of the deceased a party. The judgment shall be effective as of the date of the argument.
2. An objection to an amendment to a petition on the ground that the amendment will make the petition as amended duplicitous will not be considered by this court where the objection urged fails to point out wherein the duplicity lies.
3. Where, to a petition charging the defendant with a failure to exercise ordinary care, an amendment is added, without striking any portion of the original petition, charging the defendant with gross negligence, such amendment does not add a new cause of action where the acts alleged in the original petition are the same acts which the amendment terms gross negligence.
4. The witness here, having stated his opportunities for observation and the facts upon which his opinion was based, was properly allowed to testify as to the visability of the airport from the air under described conditions.
5. The right to a thorough and sifting cross examination being very broad, questions testing the judgment or veracity of the witness are usually admissible.
6. Where it is desired to use one thing, act or transaction in comparison with another to illustrate some condition such as, in this case, safety, it is necessary that the conditions of the things compared be substantially similar.
7. Since under our law it is a question for the jury to determine in each case what, if anything, was required of the guest, in the exercise of ordinary care for his own safety, upon discovering negligence on the part of the operator of the vehicle in which the guest was riding, it was not error for the trial court to refuse to charge upon request that it was the duty of such guest in this case, upon discovering negligence on the part of the pilot of the plane, to warn him thereof.
8. Intoxication of the defendant having been made an issue under the pleadings and there being some evidence to support this contention, the trial court did not err in submitting this issue to the jury.
9. While the evidence discloses that the plaintiff consented to the act of the defendant in landing the plane at the place where such landing was attempted, it also shows without dispute that the plaintiff knew nothing about flying except what he had learned from the defendant, upon whose judgment he relied. It follows that this did not constitute such consent to a tort as would bar him from recovery.
10. The charge that for the plaintiff to recover she must prove by a preponderance of the evidence that the defendant was guilty of at least one of the specifications of negligence set forth in her amended petition was not error as misleading the jury into thinking a verdict could be retrurned for the plaintiff even though the negligence specified was not a proximate cause of the death, the court having fully charged on the subject of proximate cause.
11. Special grounds of the amended motion for a new trial which are abandoned, indefinite, or lacking in a specification of error will not be considered.
12. (a) The rules of law governing the degree of care owed by an operator of aircraft to his guest riding therein are the same as those governing the operator of a motor vehicle under similar circumstances, and in both cases the defendant operator is liable for injuries to his guest only in cases of gross negligence.
(b) The verdict being supported by the evidence and having the approval of the trial court, it will not be disturbed by this court, no error of law appearing.
Mrs. Norma Jo Pearson Webb brought suit in the Superior Court of Peach County for injuries and the resultant death of her husband, R. Alva Webb while a passenger in an airplane owned and operated by the defendant Ira Gage Sammons. The petition as amended alleged in substance that both men were under the influence of intoxicants: that the plane arrived over Fitzgerald, Georgia, at about dusk on the night of July 23, 1950; that the defendant, after circling the landing field, flew very low over the tree tops and attempted to set the plane down on a dirt road known as the 'Ten Mile Road' about four miles west of the city; that the plane in landing struck a guy wire which caused it to crash and inflicted injuries resulting in the death of the plaintiff's husband; that the telephone poles, from one of which the guy wire was attached, were clearly visible and that the defendant, who had frequently flown his plane along the highways of Georgia and across public roads leading to Fitzgerald should have known that said road was an unsafe place to land a plane. The amended petition alleges that the acts of negligence of the defendant were (1) operating the plane at such low altitude, making it unsafe to land the plane at the time and place where it was landed; (2) operating the plane while under the influence of intoxicants; (3) allowing petitioner's husband to become a passenger on said plane while under the influence of intoxicants; (4) landing or attempting to land on said road when he knew or should have known that it was an unsafe place to land; (5) failing to land said plane in a safe place and with the use of the care and diligence required by law; (6) attempting to land in a manner without due regard for the safety of the life of a passenger therein. These acts were in the original petition alleged to be acts of ordinary negligence, but by amendment the plaintiff set up that all acts of negligence complained of were acts of gross negligence, which gross negligence caused the death of the plaintiff's husband and her damage. No part of the original petition was stricken. The defendant demurred to this amendment on the ground that it rendered the petition duplicitous and added a new cause of action based on gross negligence, which demurrer was overruled and exceptions pendente lite preserved thereto.
Upon the trial of the case the jury returned a verdict for the plaintiff. The defendant's motion for a new trial, based on the usual general grounds and 20 special grounds, was overruled, upon which judgment error is also assigned.
Hall & Bloch, Macon, W. D. Aultman, Byron, Denmark Groover, Jr., Macon, for plaintiff in error.
Geo. B. Culpepper, Jr., Geo. B. Culpepper III, Fort Valley, for defendant in error.
1. Since the argument of this case, it has been made to appear to the court that the plaintiff in error has died. Code, § 24-3642.
2. '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 Enc. of Pleading & Practice, p. 243 § V; 35 Ga. 320(2); 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.
3. 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 denominating the acts of negligence enumerated in the original petition as gross negligence.
4. 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...
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