Wade v. Polytech Industries, Inc.

• Decision Date: 05 November 1991
• Docket Number: Nos. A91A1919,A91A1920,s. A91A1919
• Citation: 202 Ga.App. 18,413 S.E.2d 468
• Parties: WADE, et al. v. POLYTECH INDUSTRIES, INC. POLYTECH INDUSTRIES, INC. v. WADE.
• Court: Georgia Court of Appeals

Page 468

413 S.E.2d 468

202 Ga.App. 18

WADE, et al. v. POLYTECH INDUSTRIES, INC.

POLYTECH INDUSTRIES, INC. v. WADE.

Nos. A91A1919, A91A1920.

Court of Appeals of Georgia.

Nov. 5, 1991.

Reconsideration Denied Nov. 21, 1991.

Awtrey & Parker, A. Sidney Parker, J. Lynn Rainey, Marietta, for appellants.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Macon, for appellee.

BIRDSONG, Presiding Judge.

Appellants/plaintiffs, Malvin R. Wade and Pamela J. Wade, husband and wife, appeal the order of the superior court granting directed verdict in favor of appellee/defendant, Polytech Industries, Inc. (Polytech). Polytech cross-appeals the ruling of the trial court granting directed verdict in favor of Malvin R. Wade as to Polytech's counterclaim against him.

Appellants were seriously injured in an airplane crash during a sales demonstration flight. Appellant, Malvin Wade, who was a Delta airline pilot with about 17 years service and over 11,000 logged flying hours of which 600 were obtained flying small airplanes, was piloting the airplane when it crashed. The airplane was owned by appellee Polytech whose vice-president, Gerald (Jerry) Cook, apparently had arranged the demonstration flight in anticipation that appellants would buy the craft. Both appellants were looking at appellee's craft, as they did not own a plane and were thinking about buying one. Pamela Wade, however, was going to let her husband make the decision whether to buy the plane, and it was her husband who, with Jerry Cook's knowledge, invited her (in the literal sense of the word) on the flight. Pamela Wade admitted in court she was relying on her husband's judgment "as to whether [she] should fly in [the] plane and not relying upon anything that anybody at Polytech said or didn't say." A friend, Dr. Leonard Pace, who also was a pilot was invited by and did accompany appellants on the flight. Dr. Pace has an air transport license and a private pilot's license with instrument rating. He had flown 250-300 hours at the time of the incident; and he had more recent experience in flying small airplanes than Malvin Wade.

Jerry Cook flew the plane to the Greensboro airport where appellants and Pace were waiting. It landed without incident. The four people climbed into the plane with Dr. Pace and Pamela Wade sitting in the back seat, with Malvin Wade and Jerry Cook in the front left and right seats, respectively. At this point, a "four star" and "taxi" checklists were performed. Although the plane was equipped with dual controls so that either Malvin Wade or Jerry Cook could fly it from their seats inside the craft, Malvin Wade actually taxied the plane to the end of the runway and thereafter piloted it. But Jerry Cook, at various intervals, "helped fly [the] airplane" by setting the flaps and helping Malvin Wade watch the instruments. At this point, Pamela Wade was checking out the upholstery and windows of the plane while Malvin Wade was conducting certain pre-flight checks. Before takeoff, a total engine run-up was performed, and takeoff was accomplished uneventfully. Prior to landing, Wade informed Cook since he had not previously landed this plane to "stay with me and if anything at all goes wrong, you take the airplane." Wade and Dr. Pace testified that Cook never disclosed prior to the accident the plane was past its annual inspection (the fact it was past its annual inspection was not disputed) and that they would not have flown in the aircraft had they known this fact. Appellee contends they told Wade the plane was out of annual. Wade denied being told this fact.

The type of airplane being flown has a carburetor heat knob, which opens and closes a baffle to a hood around the carburetor thereby causing an increase or decrease in engine heat. This knob needs to be depressed or closed on takeoff in order to prevent a significant loss of engine power--approximated at 15-20 percent or more. When landing, a plane usually has flaps down and carburetor heat on. Upon preparing for the second takeoff, Malvin Wade was unable to close the carburetor heat knob which he had opened on landing. Jerry Cook assumed the task of depressing the knob into proper closing position, and in the process shoved it shut with enough force to cause his hand to slip from the knob and break a glass gauge on the instrument panel. The movement indicated that the cable was stuck and gave way suddenly. Malvin Wade testified that at this point Jerry Cook declared, "the carburetor heat knob is back in. It's okay." (Emphasis supplied.) Everyone was satisfied the plane was ready for a second takeoff, and without benefit of a second run-up, which neither Jerry Cook nor Dr. Pace suggested, Malvin Wade attempted a second takeoff. The plane obtained "normal lift-off speed," normal RPMs, and no absence of power was detected as the plane went down the runway for takeoff; and as it started to climb everything was "normal" for the first few seconds. Nothing on the instrument panel would indicate a malfunction of the carburetor heat assembly. Suddenly it became apparent something was wrong, although the throttle, mixture control, and carburetor heat cable all appeared to be properly set. Malvin Wade testified he then shouted: "Jerry, what the hell is wrong with this thing ... you know it better than I do. Do you want it." Cook, however, did not assume the controls or do anything to assist Wade who had no choice but to continue to fly the plane. Wade instinctively nosed the plane down to keep the engine from stalling, but the plane lost air speed and could not maintain altitude, hit a tree, and crashed to the ground.

At trial, the Wades called as an expert witness, Mr. Clarence Wise, who in addition to practical experience and education as an aircraft mechanic, flight engineer, an aircraft sheet metal repairman, an airframe and power plant mechanic, and an FAA inspector, is licensed as a commercial pilot and has investigated over 350 aircraft accidents. The trial court duly recognized Mr. Wise as an expert in the field of airplane crash investigation and in the field of avionics generally, including pilot. Wise opined, inter alia, and without objection that the crash was caused by a carburetor air temperature rod which allowed the quick disconnect coupling to ride up and pop off and the rod went in without moving the baffle in the air box assembly, and that malfunction of the carburetor air box was due to lack of proper maintenance. He also testified that the problem would have been discovered had a timely annual inspection been performed; and annual inspection would have revealed the rubbing or "[t]he hanging up of the carburetor air door; and lack of an annual inspection and proper maintenance was a cause of the airplane crash." In addition, Wise testified that once the carburetor air temperature rod assembly broke and carburetor heat remained on it was not "pilot error" for Wade to fail to recognize that condition. And, while an engine run-up would reveal if carburetor heat was not working properly, a run-up is not conducted before every takeoff.

Dr. Pace testified, inter alia, that he had been taught that you do not have to do a full engine run-up if you do not shut the engine off, but he would assume that such a run-up should be conducted if something out of the ordinary occurs. Nevertheless, Dr. Pace would have done nothing different that Malvin Wade did on this flight.

Although Wade admitted that a run-up should be conducted if any problems are encountered or anything unusual occurs, he immediately clarified this answer to reflect that a run-up would be required if you have a problem "big enough or seemingly big enough" to warrant such action. Wade did not believe such a problem existed as Jerry Cook, "a qualified pilot" who has maybe 600 hours in that airplane and was the most experienced of the three pilots flying that plane, told him he would take care of the knob. Thereafter, Cook told Wade the heat knob was back in okay; Wade had no reason whatsoever to doubt this statement, as Cook knew the plane better than he did and the knob was back in proper off position. If Wade had doubted Cook's statement, he would have run-up the engine. Wade conceded that in hindsight, although not normally done, if a run-up had been conducted before the second takeoff the crash might have been avoided. Nevertheless, he repeatedly opined that a second run-up was not required and unequivocally stated that Jerry Cook never told him to conduct another run-up. Held:

1. A directed verdict is appropriate if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50(a); All Risk Ins. Agency v. Southern Bell Tel., etc., Co., 182 Ga.App. 190, 191(1), 355 S.E.2d 465. A trial court cannot direct a verdict merely because he believes the strength or weight of the evidence lies on one side, or because he might grant a new trial if a verdict should be returned which he thinks is contrary to a preponderance of the evidence. Findley v. McDaniel, 158 Ga.App. 445, 280 S.E.2d 858. And a motion for directed verdict cannot be granted if there is any evidence creating a material issue of fact. Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App. 829, 831(2), 386 S.E.2d 709.

In determining whether the granting of a motion for directed verdict is supported adequately by the record, we will not consider statements of witness elicited in an out-of-court hearing that were not subsequently elicited and, thus, not "introduced" in the presence of the jury. OCGA § 9-11-50(a).

2. During the trial court's consideration of the motion for directed verdict, a discussion ensued as to the theory or theories of liability upon which appellants/plaintiffs had proceeded at trial. At the onset we note that no pretrial order was entered in this case. Moreover, under the Civil Practice Act notice pleading was substituted...