Mayer v. Puryear

• Decision Date: 14 November 1940
• Docket Number: No. 4662.,4662.
• Parties: MAYER v. PURYEAR.
• Court: U.S. Court of Appeals — Fourth Circuit

115 F.2d 675 (1940)

MAYER v. PURYEAR.

No. 4662.

Circuit Court of Appeals, Fourth Circuit.

November 14, 1940.

Aubrey R. Bowles, Jr., of Richmond, Va. (Earl W. White, of Norfolk, Va., on the brief), for appellee and cross-appellant.

Joseph F. Hall, of Richmond, Va., and Preston P. Taylor, of Norfolk, Va., for appellant and cross-appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal by the defendant (hereinafter called appellant), and a cross-appeal by the plaintiff (hereinafter called appellee), from a final judgment of the District Court for the Eastern District of Virginia in favor of the appellee and against the appellant in the sum of $3,500, plus interest and costs. The appellant in her appeal assigned as error the refusal of the District Court to set aside the verdict of the jury and the refusal of this court to enter final judgment for the appellant, pursuant to her motion under Rule 50(b) of the Federal Rules of Procedure, 28 U.S.C.A. following section 723c. The appellee based her cross-appeal on the failure of the District Court to set aside the verdict as inadequate in amount only and its refusal to empanel a new jury to assess damages in an amount which would be adequate.

Appellant, Catherine Mayer, the wife of Lieutenant Mayer (a naval officer aboard the U. S. S. Yorktown), had been residing in Norfolk, Virginia, for some time prior to the date of the unfortunate accident which formed the basis for this civil action. Appellee, Gladys Puryear (who sues by her father and next friend, Joseph Puryear), was a young girl residing with her parents in Norfolk. She was engaged to marry Ensign Wildt, a naval officer aboard the U. S. S. Boise. In the spring of 1939, both the U. S. S. Yorktown and the U. S. S. Boise were suddenly ordered from the Atlantic to the Pacific Coast. Appellant and appellee, who had been mutual friends, happened to be together when word came that each was to go to the West Coast — appellant and her children to join her husband; appellee, to marry Ensign Wildt. They thereupon arranged that appellee should make the trip with appellant and her children in a new automobile recently purchased by Lieutenant Mayer, which was in the possession of appellant and which was described by her as a "joint car" registered in his name. Appellant was to pay all the driving expenses, appellee was to pay simply her own personal expenses and was to pay for her own food and lodging. No arrangement was made whereby appellee was to assist on the trip in the driving of the car; on the contrary, appellant expected to drive all the way unless she became tired or ill and it was necessary for them to continue on the trip without delay. Appellant did expect appellee to volunteer to do part of the driving and appellant expected, if the occasion did present itself, to let appellee drive the automobile at some time on the trip.

On the morning of May 2, 1939, appellant, her two children, Catherine (age 10) and Donny (age 3), and appellee all started upon their journey in appellant's car. Appellant drove all the morning, with appellee on the front seat and with the children alternating between the front and rear seats. (There was a steamer trunk between the front and rear seats flush with the top of the front seat.) They stopped for lunch at a filling station a few miles beyond Richmond, Virginia. Then, when the meal was over, appellee is quoted as having said to the appellant: "Oh, please let me drive your new car; I can't wait to drive it." Appellant consented and they then proceeded with the appellee driving on the left side of the front seat; the little girl, Catherine, in the middle; and appellant, with little Donny on her lap, on the right side of the front seat.

After they had driven for about half an hour, Donny became restless and his mother (appellant) told him to go to the rear seat for his nap. He climbed, with her assistance, over her left shoulder between her and little Catherine, and scrambled over the steamer trunk to the rear seat. Appellant testified that while she was still half turned to her left, helping to put some covering over Donny, she heard appellee exclaim: "Oh, Cathey." Appellant turned and saw the automobile proceeding all or partly on the left shoulder of the road. Appellee swerved the car to the right, then swerved it again to the left, and the car went to the left, off the road, and collided with a pine tree. Appellee was rendered immediately unconscious and has not since recovered consciousness. The accident occurred a short distance west of Powhatan Courthouse, Virginia.

The automobile was new and in good condition. Appellant testified that the car was not going over 40 miles per hour just before, and at the time of, the accident. Although it had rained on the morning of the accident, appellant testified that at the time of the accident, though the shoulder of the road was muddy, the road itself was dry. Neither appellant nor her daughter could offer any reason that would practically explain just why appellee lost control of the car. They saw nothing done by appellee which was in any manner inconsistent with the careful operation of the automobile.

On the other hand, both the father and the mother of appellee testified to an alleged admission against interest made by appellant, in a room in the hospital, at about nine o'clock on the night of the accident. As appellee's mother testified (Appellant's Supplement, p. 9): "Mrs. Mayer came in the room and I said, `Mrs. Mayer, tell me about it'. She said, `No, not now'. I said, `I want to know'. She said, `Gladys was driving'. I said, `She was.' She said, `We were driving along and I was getting Donny to sleep and I turned to put him in the back seat and his feet got tangled in the steering wheel or her arm and the next thing was the crash', and that was all that she said."

Similar evidence of this alleged admission was introduced through the testimony of Taylor Irving, the laundry-truck driver who brought appellee and appellant to the Johnston-Willis Hospital in Richmond. He testified (Appellant's Supplement, p. 21): "* * * she appellant said that one of her children had been fretting and was being moved either from the front to the back or from the back to the front — I can't remember which — one of the two."

Appellant denied making any statement to appellee's parents or to anyone else to the effect that she touched appellee or that her child got tangled up in any way with either the steering wheel or the arm of the appellee.

This action was originally brought in the Circuit Court of Powhatan County, Virginia, but was removed to the United States District Court. In her notice of motion for judgment in the state court, appellee charged appellant with negligence in that appellant recklessly, carelessly, negligently and violently jolted into and against appellee, thereby causing her to lose control of the automobile, resulting in the accident and in appellant's permanent and total unconsciousness. At the conclusion of the evidence for appellee, and again at the conclusion of all the evidence, appellant moved the District Court to direct a verdict for appellant upon the ground that appellee was as a matter of law a guest in the automobile at the time she was driving, and that there was no evidence of any gross negligence (as required by the Virginia Guest Statute), or any wilful or wanton disregard by appellant for the safety of appellee. These motions were overruled. The District Judge made no charge to the jury in reference to the Virginia Guest doctrine and statute, but submitted the case to them on the theory of ordinary negligence. The jury brought in a verdict in favor of appellee and against appellant, while damages were assessed at $3,500. The District Judge then overruled appellant's motion to set aside the verdict of the jury and to enter judgment for appellant in accordance with her motion for a directed verdict. He also overruled the motion of appellee to set aside the verdict of the jury as to the amount of damages only, to enter judgment on the verdict as to appellant's liability, and to empanel a new jury for the single purpose of assessing the damages.

This appeal involves a consideration of the Virginia Guest Statute: "No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported, shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator." Virginia Code Ann. (Michies' Supp.1938) § 2154(232). The statute represents a legislative codification of the gross negligence rule as established in the State of Virginia by the case of Boggs v. Plybon, 1931, 157 Va. 30, 160 S.E. 77. This case specifically adopted the Massachusetts, or minority, rule as promulgated in the leading case of Masseletti v. Fitzroy, 1917, 228 Mass. 487, 118 N.E. 168, L.R.A.1918C, 264, Ann.Cas.1918B, 1088, that gross negligence must be proved to make out liability in a gratuitous undertaking.

The gross negligence doctrine is based upon the assumption that at common law there were varying degrees of negligence, or at least different degrees of care owed, and that one who undertakes to perform a duty gratuitously should be subject to a lesser measure of obligation than one who enters upon such an undertaking for pay. See Masseletti v. Fitzroy, supra, 118 N.E. at pages 174 and 177. The doctrine has been rejected in most states and has been subjected to severe criticism. See note in Virginia Section (1937) 24 Va.L.Rev. 88, 90; also, White, The...