Smith v. Allen

• Decision Date: 07 December 1961
• Docket Number: No. 8392.,8392.
• Citation: 297 F.2d 235
• Parties: Margaret Wright SMITH, Appellant, v. R. R. ALLEN, II, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

297 F.2d 235 (1961)

Margaret Wright SMITH, Appellant, v. R. R. ALLEN, II, Appellee.

No. 8392.

United States Court of Appeals Fourth Circuit.

Argued October 17, 1961.

Decided December 7, 1961.

William N. Stovall and Thomas L. Woodward, Suffolk, Va., for appellant.

Spencer Gill, Norfolk, Va. (Rixey & Rixey, Norfolk, Va., on brief), for appellee.

Before SOPER and BRYAN, Circuit Judges, and BARKSDALE, District Judge.

BARKSDALE, District Judge.

Appellant, Mrs. Margaret Wright Smith, plaintiff below, instituted this diversity action against appellee, R. R. Allen, II, defendant below, seeking to recover damages for personal injuries resulting from a fall which she sustained on a small pier extending into Chuckatuck Creek in Nansemond County, Virginia, maintained and controlled by Allen as a part of his premises. Plaintiff grounded her action on the allegation of negligence on the part of the defendant in the maintenance of his pier. The action came on for trial with a jury, and at the conclusion of plaintiff's evidence, defendant moved for a directed verdict. Although strongly intimating that defendant's motion was sound, the court overruled the motion for a directed verdict without prejudice. Whereupon, defendant rested without introducing any evidence in his behalf, and renewed his motion for a directed verdict, which motion the court granted and entered judgment upon the directed verdict. After the court denied her motion to set aside the verdict and grant a new trial, plaintiff prosecuted this appeal.

Of course, in this situation, plaintiff's evidence, and all reasonable inferences to be drawn therefrom, must be taken as true. But before stating the facts, it is necessary to first pass upon the admissibility of certain important testimony which the District Court considered as inadmissible hearsay. It appears from the record that some time after the accident, and before the institution of this action, while Mrs. Smith and Allen were having a conversation in Allen's store, one Boyce, an employee of Allen, who had been engaged in the repair or reconstruction of the pier under the direction of Allen immediately prior to the accident, came up to where Mrs. Smith and Allen were talking, and within the hearing of both of them, told Allen "that he had seen the place where she (Mrs. Smith) went through and the board was rotten". Allen did not deny this statement. Inasmuch as this statement, that the board was rotten, was not made by the defendant, but was made by Boyce, who was not a party to the suit, the District Judge considered the statement as inadmissible hearsay and gave it no consideration.

If this evidence was admissible under Virginia law, it was admissible in the trial of this case in the District Court. Rule 43(a), F.R.Civ.P., 28 U.S.C.A. The applicable Virginia law as to this question, is clearly stated in Tillman v. Commonwealth, 185 Va. 46, 37 S.E.2d 768, 773, as follows:

"It is well settled that statements made in the presence and hearing of another, to which he does not reply, are admissible against him as tacit admissions of their truth or accuracy, when such statements are made under circumstances naturally calling for reply if their truth is not intended to be admitted. This principle rests upon the universal rule of human conduct which prompts one to repel an unfounded imputation or claim."

If the party against whom the imputation is made promptly denies the imputation, then there is no acquiescence in its truth, no implied admission of guilt, and therefore evidence of such imputation is inadmissible. Pinn v. Commonwealth, 166 Va. 727, 186 S.E. 169. Likewise, evidence of an accusation of guilt, made in the presence of an accused person, is not admissible unless the accusation was made under such circumstances as would naturally call for a reply. In Knight v. Commonwealth, 196 Va. 433, 83 S.E.2d 738, an accusation against an accused in the custody of police was made in his presence, and not immediately denied. However, he had previously denied his guilt, and again denied it immediately after the conclusion of the interview with his accuser. Although recognizing the general rule, as stated above, the court held that, under the circumstances of this case, the accused having consistently denied the accusation against him, the evidence of the accusatory statement having been made in his presence and his failure to immediately deny it, was not admissible.

The Supreme Court of Appeals of Virginia has applied the general rule as stated in Tillman v. Commonwealth, supra, not only in the criminal cases of Owens v. Commonwealth, 186 Va. 689, 43 S.E.2d 895, and James v. Commonwealth, 192 Va. 713, 66 S.E.2d 513, but also in the civil case of Sanders v. Newsome, 179 Va. 582, 19 S.E.2d 883. See also 31 C.J.S. Evidence § 294 et seq., p. 1057 and 4 Wigmore on Evidence (3d ed.) 70, (par. 1071 et seq.)

Here, Boyce's statement that the board which broke and caused Mrs. Smith to fall was rotten, was made not only in the presence of defendant Allen, but in the presence of Mrs. Smith, the plaintiff. This statement was an imputation strongly suggesting negligence on the part of Allen. Admittedly, Allen heard it, and did not deny it. He knew that Mrs. Smith had been severely injured, and if he did not actually know that Mrs. Smith was asserting a claim against him for damages, he had every reason to believe that she would. It is our conclusion that the circumstances then existing brought the evidence of Boyce's statement within the ambit of the general rule of Virginia law as stated above, and it should have been admitted, and considered by the District Judge as tantamount to an admission by the defendant. Considering the evidence as to Boyce's statement as admitted, and viewing the evidence in the light most favorable to the plaintiff, the facts may be briefly stated as follows:

On or about June 24, 1958, plaintiff, Mr. Margaret Wright Smith, an active woman, sixty years of age, as an invited guest, came to visit defendant, R. R. Allen, II, who was her nephew, at his home on Chuckatuck Creek in Nansemond County, Virginia. When she arrived she saw, and was told, that the private pier, owned by Allen and extending from his lawn out into the creek, was being repaired. The repair of the pier consisted in a renewal of its superstructure, and for the renewal, used pallets, 43 inches square, were acquired by Allen from the store of Lipton Tea Company at nearby Suffolk. These pallets were of oak or gum planking nailed across 2 × 4 supports. To fill the "places and voids" in the pallets, used planking, 5 or 6 inches wide and ½ to 5/8 inches thick, was used. Although both the pallets and the boards used to fill in, were of used lumber, only casual inspection of them was made. The actual work on the pier was done by one Boyce, an employee of Allen under Allen's direction. There was no hand rail on the pier, although it was quite narrow, approximately 43 inches wide. During the evening of June 27, 1958, Allen told Mrs. Smith that the repair of the pier was finished. The next morning, Mrs. Allen, followed by Mrs. Smith and the Allens' small boy, walked out on the pier intending to fish from the end of it. While she did not minutely examine each plank before stepping on it, she was looking where she was going, and saw nothing to indicate danger. As Mrs. Smith was walking along the pier, very suddenly a board which she had stepped on broke and her left leg went down through the pier beyond the knee, which caused her to fall on her back with her leg under the pier. She was unable to extricate herself without assistance. Mrs. Allen called her husband, who was in a boat nearby. He came, saw what had happened, helped to extricate Mrs. Smith, and sent her to a hospital. The board which broke and caused Mrs. Smith to fall, was rotten, and this fact was known, or should have been known, to Boyce, Allen's employee who placed the board in the pier, only a few days before the accident. Allen gave Mrs. Smith no warning that the pier, or any part of it, was unsafe. Mrs. Smith sustained painful and serious injuries, including "a complete fracture of the articular surface of the left tibia". She incurred substantial expenses in the treatment of her injuries, which persisted to some extent at the time of the trial.

At the trial of this case, counsel for both plaintiff and defendant took the position that, at the time of her injury, the plaintiff was an invitee, to whom the defendant owed the duty of exercising ordinary care for her safety. The plaintiff was visiting in the home of defendant, as an invited guest, and certainly, from a social standpoint, she was an invitee. However, by the weight of authority, it would not seem that she was an invitee in the legal sense of the word. Since plaintiff's cause of action arose in Virginia, her right to recover is determined by the law of Virginia. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. No Virginia authority has been cited to us, nor do we find any, which deals precisely with the legal status of a social guest and the legal duties of a host to such a guest. In discussing the status of persons on the property of others, in a leading Virginia case, Pettyjohn & Sons v. Basham, 126 Va. 72, 100 S.E. 813, 815, 38 A.L.R. 391, the court said:

"But it is sometimes difficult to determine whether the circumstances make a case of invitation, in a technical sense, or of mere license. Usually, an invitation will be inferred where the visit is of common interest or mutual advantage to the parties, while a license will be inferred where the object is the mere pleasure or benefit to the visitor." (Italics supplied.)

In the same opinion, the court went on to delineate the duties owed to persons in different categories on the premises of another, as follows:

"* * * Trespassers and bare licensees, as a rule, take the risk of the place as they find it. Generally, the

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