Heath v. Swift Wings, Inc.

252 S.E.2d 526 (1979) 40 N.C. App. 158

Richard Edwin HEATH
v.
SWIFT WINGS, INC., the Bank of Virginia Trust Company, Frank W. Kish, Richard H. Kish and Kermit Rockett.

No. 7824SC367.

Court of Appeals of North Carolina.

March 6, 1979.

Adams & Jenkins by W. Thad Adams, III, Charlotte, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by James G. Billings, Raleigh, for defendants-appellees.

MORRIS, Chief Judge.

Plaintiff has brought forward on appeal 15 assignments of error directed to 26 exceptions to rulings and instructions of the trial court. We direct our inquiry to a very limited number of assignments of error which identify substantial errors of law sufficiently prejudicial to the plaintiff to require a new trial of this matter. We will not address the remaining assignments of error because of the probability that the same errors, if any, will not recur upon retrial of the cause.

Assignment of error No. 4 is directed to the trial court's charge concerning the definition of negligence and the applicable standard of care:

"Negligence, ladies and gentlemen of the jury, is the failure of someone to act as a reasonably and careful and prudent person would under the same or similar circumstances. Obviously, this could be the doing of something or the failure to do something, depending on the circumstances. With respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances."

It is a familiar rule of law that the standard of care required of an individual, unless altered by statute, is the conduct of the reasonably prudent man under the same or similar circumstances. See Williams v. Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977); Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964). While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. Pinyan v. Settle, 263 N.C. 578, 139 S.E.2d 863 (1965); Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281 (1963).

The trial court improperly introduced a subjective standard of care into the definition of negligence by referring to the "ordinary care and caution, which an ordinary prudent pilot having the same training and experience as Fred Heath, would have used in the same or similar circumstances." (Emphasis added.) We are aware of the authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. See generally Prosser, Law of Torts (4th ed.) § 32. Indeed, our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. See e. g., Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53 (1966) (fire sprinkler contractor); Service Co. v. Sales Co., 261 N.C. 660, 136 S.E.2d 56 (1964) (industrial designer); Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955) (physician); Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954) (attorney). Furthermore, the specialist within a profession may be held to a standard of care greater than that required of the general practitioner. See generally Dickens v. Everhart, 284 N.C. 95, 199 S.E.2d 440 (1973). Nevertheless, the professional standard remains an objective standard. For example, the recognized standard for a physician is established as "the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice." Dickens v. Everhart, 284 N.C. at 101, 199 S.E.2d at 443.

Such objective standards avoid the evil of imposing a different standard of care upon each individual. The instructions in this case concerning the pilot's standard of care are misleading at best, and a misapplication of the law. They permit the jury to consider Fred Heath's own particular experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all pilots. The plaintiff is entitled to an instruction holding Fred Heath to the objective minimum standard of care applicable to all pilots.

Plaintiff assigns error to a portion of the trial court's summary of the defendant's evidence as elicited during cross-examination. Plaintiff excepts to the following statement by the court:

"That the ignition was on one of the magetos which would indicate that the pilot, having encountered difficulty, had switched from both, which is an emergency procedure; . . ."

Plaintiff contends that the evidence did not reasonably support the trial court's statement that the pilot had initiated an emergency procedure. Defendants argue that the court drew a reasonable inference from the evidence. It is conceded by defendants that there was no testimony precisely stating that switching magnetos is an "emergency procedure".

It is fundamental in this State that the trial court may not submit for the consideration of the jury facts material to the issue of negligence not fully supported by the evidence. Dove v. Cain, 267 N.C. 645, 148 S.E.2d 611 (1966). The issue of whether the pilot of the Piper 180 Arrow was in fact confronted with an "emergency" due to engine malfunction is a crucial element of the case. Testimony that a pilot is taught to switch magnetos when the aircraft is experiencing engine roughness is, under the facts of this case, insufficient evidence in this record to support the court's charge which intimated that switching magnetos constitutes per se an emergency procedure. Moreover, there is no evidence to suggest that engine roughness presents an emergency situation when proper safety factors are taken into consideration prior to an attempted takeoff.

Plaintiff also assigns error to the following portion of the court's summary of the contentions of the parties:

"[T]hat the plaintiff would have Fred Heath adhere to a perfect exact standard whereas the standard is that of the ordinary prudent pilot; . . ."

Such a statement may appear to the jury as an indication of the trial court's opinion with respect to the merits of plaintiff's lawsuit. It is clear from the pleadings that the plaintiff is proceeding only on the theory of a failure to exercise the due care required of the ordinary prudent pilot. There is no basis for the trial court's statement that plaintiff insists on a perfect standard as opposed to a reasonable standard. This Court has held that when the manner of stating the contentions of the parties is indicative of the court's opinion on the case, the charge is violative of G.S. 1-180. Voorhees v. Guthrie, 9 N.C.App. 266, 175 S.E.2d 614 (1970). G.S. 1-180 is now embodied in substance within G.S. 1A-1, Rule 51(a). Little v. Poole, 11 N.C.App. 597, 182 S.E.2d 206 (1971). Furthermore, exceptions to an expression of opinion within the context of the summary of the contentions of the parties may be raised for the first time on appeal. Voorhees v. Guthrie, supra; State v. Powell, 6 N.C.App. 8, 169 S.E.2d 210 (1969).

This matter was well tried by both counsel for plaintiff and counsel for defendants, and several days were consumed in its trial. Nevertheless, for prejudicial errors in the charge, there must be a

New trial.

HARRY C. MARTIN and CARLTON, JJ., concur.