Chappell v. White

• Decision Date: 14 January 1946
• Citation: 184 Va. 810,36 S.E.2d 524
• Parties: CHAPPELL. v. WHITE.
• Court: Virginia Supreme Court

36 S.E.2d 524

184 Va. 810

CHAPPELL.

v.WHITE.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court, Norfolk County; A. B. Carney, Judge.

Action by Martha C. White against Thelma Chappell for injuries sustained in an automobile accident. A judgment for plaintiff following second trial was set aside on ground that damages awarded were inadequate. After a third trial, judgment was rendered for plaintiff and defendant brings error.

Affirmed as to second trial judgment and reversed as to third trial judgment.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Breeden & Hoffman, of Norfolk, for plaintiff in error.

William G. Maupin, of Norfolk, and T. E. Gilman, of Portsmouth, for defendant in error.

HOLT, Justice.

This is an automobile accident case. It has been tried three times. The first trial is reported in Chappell v. White, 182 Va. 625, 29 S.E.2d 858. There was a verdict for $7,500. The case was reversed and remanded. At the second trial there was a verdict and judgment for $4,231.18. That judgment was afterwards vacated, and at the third trial there was a verdict for $9,000.

The judgments of the second and third trials are before us on a writ of error. When the verdict in the second case was returned, plaintiff moved that it be set aside as contrary to the law and the evidence and for misdirection to the jury, and also because the court had overruled her motion for a continuance. The defendant moved that it be set aside as contrary to the law and the evidence and asked that a judgment for her be entered non obstante. Both of these motions were continued to July 29, 1944, and on that day the court entered this order:

"The court having heard and considered the motion of the defendant to set aside the verdict of the jury in this case and enter up judgment for the defendant, notwithstanding the verdict, doth overrule the same, to which action of the court in overruling said motion, the defendant by counsel excepted.

"Thereupon it is considered by the court that the plaintiff, Martha C. White, recover against the defendant, Thelma Chappell, the sum of $4,231.18 with interest thereon from the 29th day of July, 1944, until paid and costs.

"Thereupon, both the plaintiff and the defendant by counsel, excepted to the action of the court in overruling their motions and pronouncing judgment for the plaintiff * * *"

On August 7, 1944, plaintiff by counsel moved the court to set aside said judgment on the ground that damages awarded the plaintiff were inadequate and asked that a new trial be ordered confined to the ascertainment of proper damages alone, which motion the court sustained To this the defendant duly excepted.

A third trial was had on November 1, 1944. A verdict was returned in the sum of $9,000, which was affirmed by the court and to which the defendant duly excepted.

The accident occurred on July 10, 1942, in the daytime on a straightway, level, paved road. The pavement itself was thirty feet wide and marked with white lines for three-lane traffic. On the defendant's left was a wide earthen shoulder which sloped down to a deep ditch. There had been a slight rain but the road was not flooded. There were no marks on the pavement to show that the car had skidded.

All of the occupants of the car involved in the accident were related. On the day of the accident they had attended a family reunion at Franklin, Virginia, this being their fourth annual pilgrimage together. All parties were familiar with the road in question. The car driven by the defendant was a 1942 Pontiac, apparently in excellent condition, and had only been driven two thousand miles. The accident happened while returning home, approximately one mile west of Holland, Virginia, on July 10, 1942, at about six-thirty o'clock in the afternoon, it being broad daylight at the time.

The plaintiff, a woman now sixty-six years of age, was seated in the middle of the rear seat. The witnesses, Mrs. Brown and Mrs. Rowe, were seated on the left and right of the plaintiff, respectively. At the time of the accident, Mrs. Brown had just finished placing her baby in her lap. The defendant was driving the car and on the front seat to her right was seated her daughter, Peggy, and to Peggy's right was seated the defendant's young son, Guilford.

It is the contention of plaintiff that though a guest she had the right to recover of the defendant, her host, because the accident suffered was due to the host's gross negligence.

There have been three trials of this case: The first was had on May 25, 1943. That trial was presided over by Honorable Lawrence W. I'Anson, Judge of the Court of Hustings for the City of Portsmouth, presiding by designation. It resulted in a verdict and judgment for the plaintiff of $7,500 and is reported under the style of Chappell v. White, supra . There the case was reversed and remanded for an error in the admission of certain evidence and for an error in the instructions. But the court also held that the question of gross negligence with those errors eliminated was still for a jury.

In it is this statement of facts:

"Defendant was driving a practically new 1942 Chieftain Pontiac. Its mechanism, including brakes and steering gear, was in perfect condition. The driver and passengers stated that the car was operated at a reasonable rate of speed, estimated to be between 35 and 45 miles an hour, on its proper side of the highway. When the passengers on the back seat heard Mrs. Chappell cry 'Oh!' they looked up and saw that the car had crossed to the extreme left side of the highway, traveling at undiminished speed. At the same moment they saw Mrs. Chappell straightening up in the driver's seat as if she had been leaning over to her right, with her right hand in the act of grabbing the top of the steering wheel. Defendant concedes that this was the location of the car when she became conscious of the danger, and that she neither applied her brakes nor attempted to turn the car towards the center of the highway, but permitted it to travel 75 to 90 feet diagonally across the left shoulder of the highway before it turned over and came to rest at the bottom of the ditch six or more feet from the hard surface. No skid marks were observed. While the surface of the highway was wet from recent rain, it was not proven to be slippery. As one witness stated, the hard surface was composed of 'black top gravel road, and it is not awful slick.'

"Reasonable men may differ as to whether or not these facts and the inferences therefrom constitute gross negligence. It follows that a jury question is presented."

Two juries have thought that gross negligence has been established. Their findings have been approved by two trial judges, and we have said that it is a jury question. But this is not all.

We have examined the record with care and find that the evidence, in substance, in no wise differs from that as stated in Chappell v. White, supra. Of course the language of witnesses varies, but the substance of their statements is not changed. The doctrine of the law of the case applies.

In Steinman v. Clinchfield Coal Corporation, 121 Va. 611, 93 S.E. 684, 687, this court, speaking through Burks, J., said: "The doctrine, briefly stated, is this: Where there have been two appeals in thesame case, between the same parties, and the facts are the same, nothing decided on the first appeal can be reexamined on a second appeal. Right or wrong, it is binding on both the trial court and the appellate court, and is not subject to re-examination by either. For the purpose of that case, though only for that case, the decision on the first appeal is the law. It differs from res judicata, in that the conclusiveness of the first judgment is not dependent upon its finality. The first judgment is generally, if not universally, not final. The reason of the rule is twofold: First, after the rehearing period has passed, the appellate court has no power to change its judgment, and the mandate for retrial removes the case from its jurisdiction. Second, it is necessary to the orderly and efficient administration of justice. It would greatly increase the labor of appellate courts and the costs to litigants if questions once considered and determined could be reopened on any subsequent appeal. The doctrine has been applied in many cases by this court, some of which are here cited. Howison v. Weeden, 77 Va. 704; Stuart v. Preston, 80 Va. 625; Carter v. Hough, 89 Va. 503, 16 S.E. 665; Lore v. Hash, 89 Va. 277, 15 S.E. 549; Diamond...