Boland v. Love, 12240.

Citation222 F.2d 27,95 US App. DC 337
Decision Date17 March 1955
Docket NumberNo. 12240.,12240.
PartiesSheila Ilina BOLAND, etc., Appellant, v. J. Spencer LOVE, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)


Messrs. George E. Allen and Wilbur C. Allen, Richmond, Va., of the bar of the Supreme Court of Appeals of Virginia, pro hac vice, by special leave of Court, for appellant.

Mr. Warren E. Miller, Washington, D. C., was on the brief for appellant.

Mr. John P. Labofish, Washington, D. C., entered an appearance for appellant.

Mr. J. Harry Welch, Washington, D. C., with whom Messrs. H. Mason Welch and John R. Daily, Washington, D. C., were on the brief, for appellees.

Before BAZELON, DANAHER and BASTIAN, Circuit Judges.

Petition for Rehearing In Banc Denied April 7, 1955.

DANAHER, Circuit Judge.

Appellant (plaintiff) sought damages for injuries sustained when she was struck by an automobile near Ashland, Virginia. The car belonged to Robert Lee Love, son of J. Spencer Love, both appellees here, (defendants in the District Court). Defendants resided in the District of Columbia but both were away when one Coates, without permission, took Robert's car from the garage on the father's Washington premises where Coates was employed as a gardener and yard man. Pertinent allegations appear in the margin.1 At the conclusion of plaintiff's opening statement, the trial judge granted defendants' motion for a directed verdict. This appeal turns on whether or not the trial judge mistakenly so ruled. He succinctly summed up the whole issue thus: ". . . if the plaintiff proves everything that she has said she is going to prove in her case, as a matter of law there still will be no case to go to the jury."

So far as may be pertinent to the inquiries we must explore, we draw upon the plaintiff's opening statement. At the time of plaintiff's injury, defendant J. Spencer Love owned premises at 3200 Ellicott Street, N. W. in Washington where he kept several automobiles including a Pontiac owned by his son Robert Lee Love. Prior to the events in suit, the son had entered the Army leaving his car at home in care of one Hamilton, his father's employee and private secretary. The other cars, property of the father, were also left in charge and under control of Hamilton.

A man named Anderson was employed just ahead of Coates. Coates was employed as his assistant, as a gardener and yard man, that is by Mr. J. Spencer Love. Before the accident, Anderson left and "left Coates there to perform the services that had been performed" by Anderson. Among Coates' duties "when the family was there," was that of driving the automobiles around to the front door. When the family was "not there" and the automobiles or "any of them were left on the premises, he was supposed to start the automobiles up and run them idle, so to speak, so as to keep them alive or keep the batteries from dying, and perhaps wash the automobiles."

A few weeks before the accident, the father locked up the house, left it and went away for several months. "He left Mr. Hamilton, the employee-secretary there, supposedly to supervise Coates, look after the automobiles and what not, but Mr. Hamilton worked in the office downtown and so in the morning he would leave and go to the office and leave Coates on the premises. So, on the morning of January 23, 1951, with Mr. Love and his family away, . . . excepting Mr. Coates, Mr. Hamilton left the house that morning leaving no one there to supervise Coates in any way, shape or form, and Coates finding himself on the premises with no one to supervise him, took the automobile and drove it down into Virginia."

In order that Coates might perform his duties,

". . . the automobile keys were sometimes given to the maids when they were in the house, with the instructions to give them to Hamilton, and if none of them were there, the keys were placed over the sun visor or windshield.
"On this morning . . . Mr. Hamilton placed these keys — according to Coates — over the windshield and told him where the keys were and to take the car and start it up and charge the batteries. But he did not give him any permission, of course, to drive the car off the premises.
"So, Coates, with no one there to supervise him or control him, took the automobile, went down into Virginia and, coming back, according to the evidence, was a little late and was hurrying to get back to Washington before Mr. Hamilton got back from work, and had this accident.
"Now, the evidence will further show that Coates, I believe back in his teens, was convicted of stealing and again convicted of stealing when he was about twenty-two. He was too young to serve or go to the penitentiary on the first conviction, but he was sent to some training school here and confined there for his infractions of the law, and then he was convicted about twenty-two and given 32 months, I believe, to five years in prison.
"Let\'s see if I can get the dates here now. On September the 13th, 1948, he was released from prison under supervision of the parole officer, was reporting to the parole officer. In the early part of \'49, I believe it was, he was employed by Mr. Love, and he completed his parole, I believe, on January 14, 1951.
"Now, the evidence will show that Mr. J. Spencer Love and his servant and employee, Mr. Hamilton, knew the record of James Coates; knew that he was untrustworthy, that he had been twice convicted of stealing and had served in prison almost half of his time after he got ten years old, and the evidence will show that they knew that he did not have a driver\'s license and that when they went away and left him without any supervision, it is our claim that they were negligent in thus entrusting these automobiles to this man, and it is that negligence upon which we base our claim."

Linking the foregoing to the events involving plaintiff's injury we may briefly note that on the afternoon of January 23, 1951, a school bus, carrying the plaintiff with other school children, stopped on the right side of Route 1 highway, headed toward Richmond. On the bus red blinker lights were operating with the word "STOP" in the middle of the lights. A patrol was placed in the middle of the highway with a red flag, flagging down traffic. The driver of a Buick automobile, heading north, in response to such signals had brought his car to a dead stop for at least a minute, while children were alighting from the school bus and crossing the road. Thereupon, Coates also driving north at a speed estimated between 50 and 70 miles an hour skidded some 60 feet, struck and knocked the standing Buick some 40 to 50 feet north. Then Coates swerved to his left, skidded 40 to 50 feet more as the car crossed the southbound lane and struck the 13-year-old plaintiff as she stood in front of the bus. She had not gone into the highway, and thus was pinned against the bus and severely injured. Concluding this portion of the opening statement plaintiff's counsel said "Shortly after the accident the driver left the scene."


Conformably to Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, a federal court will follow the rule of the state of the forum on a question of conflicts of laws. "In Pennsylvania, it is well settled that, in the absence of evidence to the contrary, the common law of another common law state is presumed to be the same as the common law of Pennsylvania." Waggaman v. General Finance Co., 3 Cir., 1940, 116 F.2d 254, 257; Petersen v. Chicago, G. W. Ry. Co., 8 Cir., 1943, 138 F.2d 304, 305, 149 A.L.R. 755; Mattox v. News Syndicate Co., 2 Cir., 1949, 176 F.2d 897, 901, 12 A.L.R.2d 988, certiorari denied, 1949, 338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 525; Pierce v. Ford Motor Co., 4 Cir., 1951, 190 F.2d 910, 915, (the last two cases applying to tortious injury in Virginia).

In the District of Columbia Circuit we have applied the law of Virginia in actions brought here where the injury occurred in Virginia, as in Rubenstein v. Williams, 1932, 61 App.D.C. 266, 61 F.2d 575; United States v. Morow, 1950, 87 U.S.App.D.C. 84, 182 F.2d 986. Our courts, as is true of federal courts generally, will take judicial notice of the laws of the several states, Moore v. Pywell, 1907, 29 App.D.C. 312, 324, 9 L.R.A.,N.S., 1078, whether pleaded or not, Kaye v. May, 3 Cir., 1924, 296 F. 450, 453; Parker v. Parker, 10 Cir., 1936, 82 F.2d 575, 577. But lex loci delicti governs, Giddings v. Zellan, 1947, 82 U.S.App.D.C. 92, 160 F.2d 585, certiorari denied, 1947, 332 U.S. 759, 68 S.Ct. 61, 92 L.Ed. 345; Kas v. Gilkerson, 1952, 91 U.S.App.D.C. 153, 155, 199 F.2d 398, 399, and cases cited.

Two facets of the law are commonly encountered in situations such as we have here, (1) "the law applicable to the case, so far as it concerns the standard of conduct required of the parties, is the law of the place of injury," and (2) the application of that standard must be made according to the law of the District of Columbia, for that is a procedural matter. Consequently, the question whether there is sufficient evidence to take the case to the jury must be determined according to our law. Tobin v. Pennsylvania R. Co., 1938, 69 App. D.C. 262, 263, 100 F.2d 435, certiorari denied, 1939, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040.

In Virginia, established through cases too numerous to mention, the standard of conduct owed to this plaintiff is that of ordinary care, dependent upon the circumstances of the particular case. It is such care as a person of ordinary prudence, under all the circumstances, would have exercised. Restatement, Law of Torts § 285. Granting the standard is that of ordinary care, has Virginia by statute or final appellate court decision established whether the particular conduct involved here is or is not negligent, considering all the circumstances? We have found no Virginia case, and none has...

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