Opinion
39677.
DECIDED SEPTEMBER 24, 1962.
Action for damages. Fulton Civil Court. Before Judge Parker.
Nall, Miller, Cadenhead Dennis, James W. Dorsey, for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Sam F. Lowe, Jr., contra.
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.
DECIDED SEPTEMBER 24, 1962.
Plaintiff brought action for damages sustained as a result of a collision on the ground between an airplane owned by one of the defendants and the airplane of the plaintiff. The four 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 Airways, 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.
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. c. 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 employee was acting 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 while Estabrook was turning the propeller, and though Estabrook had set the controls originally, Bradley was in position inside the airplane to manipulate the controls and, in reality, at the time was the only one of the two in a position to do so.
As against the general demurrer, the petition, as amended, stated a cause of action. The trial judge properly overruled the general demurrer.
2. In urging the general grounds of its motion for new trial, Southern Airways Company contends that there was no negligent act or omission on the part of the defendant proven by the evidence.
Bradley, Southern Airways' employee, is the only witness whose testimony was specified as material upon this appeal. An extract of a portion of his testimony is in the record before the court. He identified himself as a line serviceman and testified that his duties were to undertake to service airplanes brought in for gas, oil and similar attention; that he put oil and gas in the airplanes; cleaned them out; wiped the windows off and also assisted people in getting the airplanes ready to leave; that he was authorized to sit in the airplanes and to hold the brakes while someone else attended to the starting of the airplane; but he was not a licensed aircraft mechanic or pilot, and he was not authorized to hold the controls; that the Piper PA-18 was tied down when Estabrook came up, but that he himself (Bradley) untied it; that it had wheel brakes or chocks under it; that Estabrook removed the chocks; that when Estabrook found the battery was dead, he asked Bradley to prop the airplane, but Bradley told him he wasn't allowed to, but he ". . . could hold the brakes"; that when Bradley got inside the airplane, Estabrook showed him the brakes and "mag switch"; that Estabrook did not request that Bradley handle or manipulate any part of the mechanisms or controls other than the brake and the magneto switch; that Estabrook showed Bradley these two particular things and told him to cut the magneto switch on at his command; that Estabrook told Bradley how to apply his foot to the brakes, but Bradley confused the brakes with the "Beachcraft brakes on a Bonanza and wasn't clear in my mind"; that when Bradley was seated in the airplane, he cut the switch on, sat back and made sure his feet were on the brakes; that Estabrook then started "to prop the aircraft"; that it did not start; that Estabrook then gave the command to cut the switches off; Bradley cut the "mag switch" off; Estabrook came around to the aircraft, stuck his head on the inside and adjusted the throttle; that Estabrook did not give any instructions in regard to the throttle at the time; Estabrook returned to the front of the airplane, "hollered switches off" and "propped it"; that up to that time Bradley was not manipulating any controls other than the brakes at the time it fired up; that when the airplane fired up, Bradley's head and the upper part of his body were shoved back in the seat from the force of the aircraft shooting out the way it did, though his feet did not come off the brake pedals; he applied more pressure, but the aircraft kept going forward out of control, and he knew of no other way to stop or control it, and Estabrook had not given him any instructions as to what he could or should do.
On cross-examination, Bradley admitted that he knew with the switch on the airplane would run and with it off it would not; that he knew with the throttle in some position the engine would be open and running and that with the throttle in some other position the engine would be closed and not running; and that he did not do anything with respect to either the throttle or the magneto switch; and that he did not do anything with respect to the parking brakes on the airplane when it was moving forward.
With regard to the issue as to whether Bradley was in the scope of his employment, the defendant cites Carstarphen v. Ivey, 66 Ga. App. 865 ( 19 S.E.2d 341); and Johnson v. Taddoni, 217 F.2d 91, as authorities for the proposition that where the employee was acting under the direction of another in starting the motor, he was for that purpose the employee of the one giving instructions and not the employee of his usual employer.
While the soundness of the Ivey case is somewhat doubtful, in any event it is distinguishable from the present action on its facts. In the present case a part of Bradley's employment was to assist pilots in starting planes brought in for service, as this aircraft was, and a part of his duties consisted of sitting in the airplanes and holding the brakes engaged.
Under the allegations of the petition and the evidence, there is evidence sufficient to authorize the verdict which necessarily included a finding that Bradley was acting negligently within the scope of his employment, was negligent in getting into the plane knowing he had to hold the brakes in the "on" position, while admittedly not knowing exactly how the brakes worked, nor did he seek further instructions as to how they worked prior to embarking upon his authorized duty of assisting the pilot in starting the airplane by applying the brakes. Furthermore, although he testified that he was not authorized to manipulate the controls of the airplanes he was assisting in starting, where, under the present facts, the airplane shot forth out of control and he was charged with holding it stationary, the trier of the facts properly found that his actions were within the scope of his employment. Under this emergency, Bradley, who testified he knew the effect of the switch and the throttle, should have cut off the switch or the throttle so as to stop the runaway airplane before it could cause injury or damage.
Where the employee is acting within the class of service he has authority to perform, the master is bound even though the servant is forbidden to perform the particular act. Evans v. Caldwell, 52 Ga. App. 475, 477 ( 184 S.E. 440); affirmed 184 Ga. 203 ( 190 S.E. 582); Porter v. Jack's Cookie Company, Inc., 106 Ga. App. 497 ( 127 S.E.2d 313). Thus even though the employee may have violated his instructions or exceeded in some respects the boundaries of his authorized acts, the master is still bound where the disobedience is not such as to take him out of the scope of his employment. Here, as determined by the trial court, there was not a departure from the performance of his authorized duties.
Furthermore, an applicable ordinance of the City of Atlanta forbade aircraft engines to be started or run unless a qualified pilot or a competent mechanic was in the craft attending the controls. The defendant's employee, by his own admission, was neither a licensed pilot nor a competent mechanic. If he had been competent as required by the city ordinance, he should have known how to operate the throttle, the switch, and the brakes of the airplane so as to have stopped its runaway. The violation of this ordinance, under the factual situation involved in the present action, could properly have been found to be such negligence as proximately caused the damage to the plaintiff.
The trial court properly overruled the defendant's motion for a new trial.
Judgment affirmed. Felton, C. J., and Hall, J., concur.