Southern Airways Co. v. Sears, Roebuck & Co.

• Decision Date: 24 September 1962
• Docket Number: No. 1,No. 39677,39677,1
• Citation: 106 Ga.App. 615,127 S.E.2d 708
• Parties: SOUTHERN AIRWAYS COMPANY v. SEARS, ROEBUCK & COMPANY
• Court: Georgia Court of Appeals

Page 708

127 S.E.2d 708

106 Ga.App. 615

SOUTHERN AIRWAYS COMPANY v. SEARS, ROEBUCK & COMPANY.

No. 39677.

Court of Appeals of Georgia, Division No. 1.

Sept. 24, 1962.

Syllabus by the Court

1. The petition stated a cause of action against the employer for damage caused to the plaintiff by the negligence of defendant's employee acting in the scope of his employment.

2. Where the evidence revealed that defendant's employee was authorized to assist pilots in the starting of aircraft, and the employee attempted to engage the brakes in the 'on' position when admittedly he did not understand how they worked, his failure to stop the runaway airplane by the proper use of the regular brakes, the parking brakes, the throttle or the switch could properly be found to be an act of negligence within the scope of his employment.

Plaintiff brought action for damages sustained as a result of a collision on the ground between a airplane owned by one of the defendants and the airplane of the plaintiff. The for original defendants were (1) Howard Ross, owner of a Piper PA-18 airplane which collided with the plaintiff's airplane; (2) Ace Norris, owner and operator of a flying service located near Chattanooga, Tenn.; (3) Don Estabrook, the pilot who worked for Ace Norris and was the pilot undertaking to fly the Piper airplane from the repair shop of the defendant, Southern Airways (Estabrook was not served with process and was not before the court); and (4) Southern Airways Company, a corporation engaged in the servicing and repairing of airplanes, whose offices and place of business were on the premises of the Atlanta Municipal Airport.

At a hearing on demurrers the defendant, Southern Airmways, made an oral motion to dismiss as to it, which was sustained by the court. The plaintiff then amended to add an allegation that Ronald H. Bradley, the employee of Southern Airways was engaged in his employment as a line attendant; that it was his duty to assist persons who were undertaking to start airplanes by turning over the propeller and that Bradley would sit inside the airplane while the other party turned the propeller. On the occasion of the collision the pilot, Estabrook, requested Bradley to turn the propeller, but Bradley stated that he was not permitted to turn the propeller but that he was permitted to sit at the controls of the airplane while Estabrook turned the propeller; that Bradley entered the airplane and undertook the manipulation of the controls of the airplane 'during which activity he was engaged in the business of Southern Airways Company and directly within the scope of his assigned employment by that company.'

To the amended petition the Southern Airways Company demurred generally. The demurrer was overruled, and an exception was taken to this ruling.

The case was tried before the Hon. J. Wilson Parker without the intervention of a jury. The trial resulted in a judgment in favor of the plaintiff and against two of the defendants: Southern Airways Company and Ace Norris. Both of these defendants filed motions for new trial, but Norris abandoned his motion. The appeal has been prosecuted only by Southern Airways Company, which urges that the trial court erred in overruling the general demurrer to the amended petition and in overruling and denying its motion for a new trial on the general grounds.

Nall, Miller, Cadenhead & Dennis, James W. Dorsey, Atlanta, for plaintiff in error.

Smith, Field, Ringel, Martin & Carr, Sam F. Lowe, Jr., Atlanta, for defendant in error.

BELL, Judge.

1. Southern Airways urges that its employee, Bradley, at the time he sat at the controls of the airplane was not acting as its servant or agent. It is contended that the petition, as amended, on its face merely shows a permissive lending of Bradley's services as a line serviceman to assist the pilots in a specific and limited manner, the assistance to be performed under the pilots' control and direction.

The defendant asserts that the only conduct alleged on the part of Bradley which could have been construed to be negligence was that language which stated that when the engine started, Bradley failed to hold the brakes in the 'on' position so that the airplane was free to roll and that he failed to close the throttle so that the engine operated at full throttle and at full speed after it started; but that even these alleged actions were held to be not sufficient to charge Southern Airways with liability as shown by the trial court's sustaining of the motion to dismiss as to it.

The defendant contends that the general allegation, added by amendment, to the effect that Bradley undertook to manipulate the controls is at variance with the specific allegation that the pilot, Estabrook, not Bradley, had set the controls, citing Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga.App. 451, 167 S.E. 776; and Plumer v. Southern Bell Tel. & Tel. Co., 58 Ga.App. 622, 199 S.E. 353, as authorities for the rule that the general allegations must yield to the more specific allegations set forth in the petition.

While the principle is a correct rule of law, it is not applicable here. In both Brown and Plumer, while there were general allegations that the employment, the specific in the scope of his employment, the specific allegations show criminal actions committed by the respective employees, each of whom during the performance of the act stepped aside from his employment.

Here the petition, as amended, clearly alleges acts of negligence on the part of the defendant's employee in the course of his employment. The allegation that Bradley attempted to manipulate the controls does not conflict with the paragraph of the petition charging that Estabrook set the controls. Under the facts alleged, Bradley was inside the airplane...