Troutman v. Modlin

Decision Date24 November 1965
Docket Number18076.,No. 18075,18075
Citation353 F.2d 382
PartiesClarence TROUTMAN, Appellant, v. Mrs. Frances MODLIN, Administratrix of the Estate of Jim Modlin, Deceased, and James T. Gooch, Appellees. James T. GOOCH, Appellant, v. Clarence TROUTMAN, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Alston Jennings, Little Rock, Ark., for Clarence Troutman.

Sam Laser, Little Rock, Ark., for James T. Gooch.

No argument was made or brief filed in behalf of Mrs. Francis Modlin, Administratrix, etc.

Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.

MATTHES, Circuit Judge.

On October 26, 1964, James Gooch set out from Arkadelphia, Arkansas, to attend a Democratic Party dinner and rally in Little Rock, Arkansas. Traveling with him, as passengers in his car, were three friends; among them, Jim Modlin. On Interstate Highway 30, near Little Rock, the automobile operated by Mr. Gooch collided with the rear of an automobile operated by James Wilder, as both vehicles were proceeding in an easterly direction in the left-hand (north) traffic lane. Highway 30, at this point, has two lanes for eastbound traffic and, on the other side of a median, two lanes for westbound traffic.

After the collision, the two vehicles stopped in the traffic lane in which the accident had occurred. The occupants of both vehicles alighted, but remained in the vicinity of the cars. Shortly thereafter, a vehicle operated by Clarence Troutman, also traveling in an easterly direction in the left-hand lane, approached the scene of the accident. Jim Modlin, apparently seeking a position of safety, ran from the highway onto the median. Clarence Troutman, instead of turning his vehicle into the right-hand eastbound lane to avoid the accident, swerved to the left and onto the median. His vehicle struck Mr. Modlin, who later died of the injuries he sustained.

Mrs. Modlin, as administratrix of her husband's estate, brought suit against Troutman in the Circuit Court of Clark County, Arkansas, praying for a judgment for Modlin's estate in the amount of $2,000, and for herself, as widow, and for each of their four minor children in the amount of $100,000. Because of the existence of diversity of citizenship between plaintiff and defendant, the action was removed to the United States District Court for the Western District of Arkansas, and tried to a jury, Honorable John E. Miller, presiding.

Troutman filed a third party complaint against Gooch, seeking contribution as provided by Ark.Stats. 34-1001 through 34-1009 (1947).

After trial, the jury found that plaintiff was entitled to recover $10,000 for the estate and $50,000 for the widow and children. The jury further found, in response to interrogatories, that Troutman was 60% at fault and Gooch was 40% at fault. The court entered judgment in favor of plaintiff, and against Troutman, for the amount of the verdict. The judgment further provided:

"In accordance with the answers of the jury to the interrogatories submitted to it by the court, it is further ordered and adjudged that upon the satisfaction, or partial satisfaction, of the judgment entered herein in favor of the plaintiff and against the defendant, Clarence Troutman, said defendant as third-party plaintiff in this cause shall have and recover of and from the third-party defendant, James T. Gooch, the sum of money which said defendant and third party plaintiff has paid on said judgment which is in excess of 60% of said judgment."

Following denial of Troutman's motion to alter judgment and motion for a new trial, and Gooch's motion for a new trial, Troutman and Gooch perfected appeals to this court.

In his brief, Troutman raised two contentions: (1) that plaintiff cannot recover for the estate more than $2,000, the amount prayed for in the complaint, and, therefore, the court erred in denying his motion to alter the judgment, by reducing it from $10,000 to $2,000;1 and (2) that the form of the judgment is improper as it does not provide for contribution in accordance with the law of Arkansas.

Gooch's appeal is focused entirely upon that phase of the case which involves the third party proceeding.

Troutman's first contention emanates from plaintiff's failure to amend the ad damnum clause of the complaint wherein, as noted, plaintiff prayed for damages for the estate in the amount of $2,000. After all of the evidence was in, and before the jury was instructed, counsel for plaintiff directed the court's attention to the failure of the complaint to specifically allege, as an element of damage, that decedent had suffered conscious pain before he died. In this connection, counsel stated:

"* * * we wish at this time to move the court for permission to amend our Complaint in obedience to the testimony which does clearly indicate damages resulting from conscious physical pain and mental anguish.
"The Court: I see no reason why the Complaint shouldn\'t be considered as amended to conform to that proof.
"Mr. Jennings counsel for Troutman: There\'s only one problem there. They have sued to recover for the benefit of the Estate in the amount of $2,000.00 and I don\'t believe that at this stage of the game they should be permitted to amend so as to increase their prayer for damages.
"The Court: I don\'t think there would be any error in permitting them to do it, and I\'m going to permit them to do it over your objection.
"Mr. Jennings: All right.
"The Court: And the Complaint will be considered as amended to conform to the proof of that item of mental anguish — I mean of conscious pain and suffering."

However, the complaint was never physically amended in accordance with the leave thus granted. It is this circumstance which prompts Troutman to assert that he is entitled to a reduction of the judgment, because a judgment in excess of $2,000 cannot stand.

We need not tarry long in disposing of this point. Troutman seems to be laboring under the mistaken belief that Arkansas law controls disposition of the question. A like contention was presented to, and rejected by, the Second Circuit in Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60, 62 (1963). There, the court held: "* * * that this is a matter of procedure, governed entirely by F.R. 54(c), as many cases have held." (citing cases). We agree.

Rule 54(c) provides, expressly, that: "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." (Emphasis supplied).

Adhering to the mandate of the rule, the courts have consistently held that, where the defendant appears and the parties are at issue, the final judgment shall grant the relief to which the prevailing party is entitled, regardless of the relief demanded. Riggs, Ferris & Geer v. Lillibridge, supra; South Falls Corp. v. Rochelle, 329 F.2d 611, 619 (5 Cir. 1964); United States for Use of Bachman & Keffer Const. Co. v. H. G. Cozad Construction Co., 324 F.2d 617, 619-620 (10 Cir. 1963); Wendy v. McLean Trucking Co., 279 F.2d 958 (2 Cir. 1960); Vol. 3 Barron and Holtzoff, Federal Practice & Procedure, § 1194.

Moreover, the proceedings (authorized by Rule 15(b) F.R.Civ.P.) to which we have alluded, supra, had the legal effect of amending the complaint to conform to the proof, and were sufficient to support the jury's verdict.

Troutman's second contention, which places in issue the effect of the judgment as it relates to contribution, will be disposed of in connection with Gooch's appeal, which we now consider.

Throughout the trial, appellant Gooch contended that he and Modlin were host and guest, within the meaning of Ark. Stats. 75-913 and 75-915 (1947) and, therefore, that Troutman would not be entitled to contribution from Gooch, unless evidence of wanton and wilful misconduct on the part of Gooch was introduced.

At the end of Troutman's case, counsel for Gooch moved for a directed verdict, on the basis of the asserted host-guest relationship and an alleged dearth of evidence of wanton and wilful negligence on the part of Gooch. The trial court denied the motion, stating:

"* * * assuming that the relationship was that of a host and guest, of course, there\'s no testimony here to show that Mr. Gooch did anything wilfully or heedlessly about that, but I don\'t believe that the third party — in other words, I don\'t think that Mr. Gooch can plead that as a defense against a claim of a third party."

Counsel for Gooch later unavailingly requested that the court give an instruction which would have permitted the jury to determine whether Modlin was a guest at "the time he was killed."

On his appeal, Gooch's primary contention is that: "The court erred in holding that the defense of the guest statutes of Arkansas was not available to a third party defendant as a defense to bar a claim for contribution for damages sustained by a guest of the third party defendant."

Replying to Gooch's assertion of error, appellant Troutman claims that the issue of the relevancy of the guest statute in this third party proceeding "is of academic interest only", for the reasons: (1) that the host-guest relationship never existed, because the sole purpose of Modlin's presence in Gooch's automobile was to confer a benefit upon Gooch, and (2) that if the host-guest relationship ever did exist, it had terminated before the occurrence of the injury which caused Modlin's death.

On the assumption that Gooch and Modlin did occupy a host-guest relationship at the time Troutman's vehicle struck Modlin, we first consider whether a third party defendant may avail himself of the Arkansas guest statutes (§ 75-913 and § 75-915) when defending a claim for contribution, a question which has never been before the Arkansas Supreme Court.

The two Arkansas guest statutes, in pertinent part, provide:

"75-913. * * * No person transported as a guest in any automotive vehicle upon
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  • Montgomery County v. Valk Mfg. Co.
    • United States
    • Maryland Court of Appeals
    • September 6, 1989
    ...Many of these jurisdictions have in the past also barred contribution in the context of guest statute immunity. See Troutman v. Modlin, 353 F.2d 382, 387 (8th Cir.1965); Rigsby v. Tyre, 380 A.2d 1371, 1373 (Del.Super.Ct.1977); Lutz v. Boltz, 48 Del. 197, 100 A.2d 647, 648 (1953); Baldonado ......
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    ...The Eighth Circuit has applied this rule to allow judgment in excess of the amount sought in the complaint. See Troutman v. Modlin, 353 F.2d 382 (8th Cir.1965); Stineman v. Fontbonne College, 664 F.2d 1082, 1088 (8th If a plaintiff is not limited to the amount of damages sought in the compl......
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    ...232 Iowa 1188, 1191, 6 N.W.2d 292. The question presented has been previously considered by several courts. See Troutman v. Modlin, (8 Cir.), 353 F.2d 382, 385--387; Cox v. Maddux, 255 F.Supp. 517, 526; Blunt v. Brown, 225 F.Supp. 326, 329; Fields v. Synthetic Ropes, Inc., Del.Super., 211 A......
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    ...party must have a possible remedy against both the party seeking contribution and the party from whom it is sought. Troutman v. Modlin, 353 F.2d 382 (8 Cir., 1965); Cox v. Maddux, 255 F.Supp. 517 (D.C.Ark., 1966). See also, C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d ......
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