Southeastern Air Service v. Crowell

• Decision Date: 02 October 1953
• Docket Number: 34583,Nos. 34582,No. 1,s. 34582,1
• Citation: 78 S.E.2d 103,88 Ga.App. 820
• Parties: SOUTHEASTERN AIR SERVICE, Inc. v. v. CROWELL. CROWELL v. SOUTHEASTERN AIR SERVICE, Inc
• Court: Georgia Court of Appeals

Page 103

78 S.E.2d 103

88 Ga.App. 820

SOUTHEASTERN AIR SERVICE, Inc. v. v.CROWELL.

CROWELL v.SOUTHEASTERN AIR SERVICE, Inc.

Nos. 34582, 34583.

Court of Appeals of Georgia, Division No. 1.

Oct. 2, 1953.

Syllabus by the Court.

1.A petition which alleges that the plaintiff received enumerated injuries while riding as a passenger in an airplane flown by her husband, which was loaned to the husband by an agent of the defendant for the purpose of permitting the husband to ascertain the mechanical condition of the airplane and whether he desired to purchase the same, and which alleges that the airplane had a faulty mechanical condition, as a result of which it crashed, and that the defendant through its agent was negligent in failing to apprise the husband of said faulty mechancial condition when he knew or should have known thereof and in permitting the plaintiff's husband to take the airplane up into the air on a long journey under the same conditions, states a cause of action, and the trial court did not err in overruling the general demurrer thereto.

(a) Allegations showing constructive knowledge by the defendant of the defective condition of the bailed chattel are sufficient.The duty of care in the bailor to ascertain the condition of the chattel is imposed by law, and it is not necessary that the plaintiff allege actual knowledge of the defect.

2.However, the petition, not alleging a specific defective mechanical condition of the chattel, or setting forth facts which raise the inference that the defendant had an opportunity to ascertain the defective mechanical condition prior to the bailment, and which does not show that such specific defective mechancial condition caused the plaintiff's injuries is subject to appropriate special demurrer pointing out these defects in the petition, and calling for the necessary information in this regard.

3.A demurrer to allegations of facts contained in a paragraph of the petition, which facts do not appear from the other allegations of the paragraph, or from allegations elsewhere in the petition to have had any connection with the plaintiff's injuries, should have been sustained and the questioned paragraph stricken, in the absence of an amendment properly connecting the facts alleged in the paragraph with the plaintiff's injuries.

4.While ordinarily a married woman cannot recover for medical expenses incurred as the result of the defendant's negligence, such expenses being the obligation of her husband, who by virtue of that fact is entitled to recover therefor, the allegations of the instant petition that the plaintiff herself incurred such expenses and paid them, were sufficient to entitle her to recover the same, assuming that the defendant is otherwise liable in the case.

(a) The itemization and explanation of the medical expenses allegedly incurred by the plaintiff are sufficient to inform the defendant of the nature and extent of the plaintiff's claim and contentions with respect thereto, and the special demurrers calling for a more detailed explanation were without merit.

Catherine M. Crowell sued Southeastern Air Service, Inc., for damages.The allegations of the amended petition, omitting formal parts, are as follows:

'2.Cecil C. Gilham is, and, at all times herein mentioned, was, defendant's general manager, and all of the said Gilham's acts herein referred to were performed on defendant's behalf and in the scope of said Gilham's duties as defendant's agent.

'3.Plaintiff's husband, Glenn L. Crowell, was in the market for a small personal aircraft, and in the course of seeking to purchase such aircraft contacted said Cecil C. Gilham on or about March 24, 1951.

'4.Said Cecil C. Gilham showed plaintiff's husband a Swift AirplaneNo. N325K, and told plaintiff's husband that he would ascertain whether the owner thereof, one J. L. Lawhon, would sell said aircraft to plaintiff's husband.Said Gilham subsequently informed plaintiff's husband that said Lawhon had agreed to sell him (plaintiff's husband) the aircraft.

'5.After several demonstrations of the aircraft, plaintiff's husband informed said Cecil C. Gilham that he would buy said aircraft if it were in satisfactory mechanical condition, if plaintiff's husband could get the transaction financed and if the owner of the aircraft would give clear title and registration thereto.

'6.On or about May 19, 1951, plaintiff's husband requested and received permission of said Cecil C. Gilham to fly said aircraft to Jacksonville, Florida, and return in order to determine the mechanical condition of the plane.

'7.Although the motor of the plane ran somewhat roughly when the engine was first started, Mr. Gilham assured plaintiff's husband that the trouble was merely a sticking valve which could be freed by putting Caseite oil into the engine, which was done.The engine then appeared to run smoothly and plaintiff and plaintiff's husband took off for Jacksonville.

'8.When the plane had just passed Hazelhurst, Georgia, en route to Jacksonville, the instrument panel started vibrating and plaintiff's husband checked all the plane's instruments in an attempt to discover the cause of the trouble and did everything possible to stop the vibration.

'9.While the plane was still about 2700 to 2800 feet high, however, the motor stopped dead despite the efforts of plaintiff's husband who was forced to make a dead engine landing in a field, where the plane hit a soft spot and nosed over.

'10.As a result of said forced landing, plaintiff suffered multiple contusions of her ribs, inflamed kidneys and severe shock, being confined to her bed for four days.

'11.As a result of the above-described injuries, plaintiff incurred the following medical expenses which she herself paid:

'Dr. Wadley R. Glenn, M. D., Atlanta, Georgia

X-Ray .................. $15.00
                Professional services ... 49.00
                                         ------
                  Total ................ $64.00
                

'12.The above-described injuries were directly and proximately caused by the negligence of the defendant's agent and servant, Cecil R. Gilham, in that the said Gilham.

'(a) Failed to apprise plaintiff's husband of the faulty mechanical condition of the said airplane when he knew, or ought to have known thereof.

'(b) Permitted the plaintiff and the plaintiff's husband to take said airplane up into the air on a long journey when he knew, or ought to have known, of its faulty mechanical condition.

'13.Plaintiff has been injured in the amount of Ten Thousand ($10,000.00) Dollars as the result of defendant's negligence set forth above.'

To the amended petitionthe defendant filed numerous general and special demurrers.The trial court entered an order overruling the general and most of the special demurrers, and sustaining four of the special demurrers and striking paragraph 11 of the petition.The defendant filed its direct bill of exceptions complaining of so much of the court's order as overruled its demurrers, and the plaintiff by cross-bill excepts to the sustaining of the demurrers to paragraph 11 and the striking of the same.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Sidney Haskins, Atlanta, for plaintiff in error.

Gambrell, Harlan, Barwick, Russell & Smith, David H. Gambrell, Atlanta, for defendant in error.

WORRILL, Judge.

1.The defendant's general demurrer merely raises the question of whether the petition as amended sets forth a cause of action against the defendant.Under the allegations of the petition, when the plaintiff's husband took possession of the airplane for the purpose of trying it out on a trip to Jacksonville, Florida, to ascertain whether he desired to purchase the same, there was created, as between the defendant and the plaintiff's husband, the relation of bailor and bailee, the bailment being one for the mutual benefit of both, in that presumably it was to the interest of both parties that the sale of the airplane to the plaintiff's husband be consummated, said bailment being for the purpose of enabling the plaintiff's husband to ascertain whether he would purchase the airplane.As was said in the recent case of Hertz Driv-Ur-Self Stations v. Benson, 83 Ga.App. 866, 874, 65 S.E.2d 191, 197: 'Under the Code, § 12-204, one obligation of the bailor is 'to warrant * * * that the thing bailed is free from any secret fault rendering it unfitted for the purposes for which it is hired.'In the case of Parker v. G. O. Loving & Co., 13 Ga.App. 284, 286, 79 S.E. 77, 78, this provision of the Code was said to be 'a statutory declaration that due care on the part of the bailor requires him to examine the thing bailed, for the purpose of seeing that it has no hidden defects which would render it unsuitable for the purpose for which it was hired.What would be ordinary care depends upon the particular business in hand, the circumstances surrounding the particular transaction, and the situation of the parties.'While in that case it was held that the plaintiff's right to recover depended on her sustaining some contractual relation to the defendant liverymen, and an implied contractual relation was found, the duty described is that of exercising ordinary care under the circumstances so as not to injure another, and this duty is one imposed by law and not by the contract.It has been held that the bailor furnishing an automobile with knowledge that the brakes are defective is liable for injuries to others on the highways of streets caused by his negligence when the automobile is operated by the bailee.Bowyer v. Cummins, 81 Ga.App. 118, 58 S.E.2d 224.That case recognizes that the bailor, entrusting an automobile to another for immediate operation, has a duty of using ordinary care to ascertain that the automobile has no hidden defects rendering it dangerous, and that this duty extends to those persons within the range of foreseeable operation of the automobile, regardless of the fact...