Truitt v. Gaines

• Decision Date: 23 August 1961
• Docket Number: Civ. A. No. 2150.
• Citation: 199 F. Supp. 143
• Parties: James Walter TRUITT, a minor, by Howard Truitt, his next friend, and Pearl L. Truitt and Howard Truitt, individually, Plaintiffs, v. Russell Lowell GAINES, Defendant.
• Court: U.S. District Court — District of Delaware

199 F. Supp. 143

James Walter TRUITT, a minor, by Howard Truitt, his next friend, and Pearl L. Truitt and Howard Truitt, individually, Plaintiffs, v. Russell Lowell GAINES, Defendant.

Civ. A. No. 2150.

United States District Court D. Delaware.

August 23, 1961.

COPYRIGHT MATERIAL OMITTED

Harold Leshem and H. B. Rubenstein (Leshem & Rubenstein), Wilmington, Del., for plaintiffs.

Ernest S. Wilson, Jr., Wilmington, Del., for defendant.

LEAHY, Senior District Judge.

1. Citizenship of plaintiffs at the time of filing suit has been put in issue.

Findings. On April 21, 1947, the Truitt family moved to a farm of George E. Wright in Maryland.¹ On December 1, 1959 this action was brought. On December 5, 1959, Truitt made arrangements to move his family to the farm of J. Lee Phillips in Delaware.² The next day, on a Sunday, December 6, 1959, Norman E. Hubbard, plaintiffs' minister, who lived in Princess Anne, Maryland, visited the Truitts on the Wright farm in Maryland.³ On Monday, the next day, the Truitt family moved to the Phillips farm in Delaware.⁴ Later that week, on December 12, 1959, the Truitts' mailman was advised they had moved.⁵ From the facts, it appears that the Truitts at the time the action was filed were citizens of Maryland and defendant was a citizen of Delaware.⁶ The amount in controversy exceeds $10,000.⁷

Opinion. Testimony of plaintiff Truitt and the minister Norman E. Hubbard establishes that on December 1, 1959 (filing of the complaint) plaintiffs were citizens of Maryland and had lived there on the Wright farm for 13 years. On Sunday, December 6, 1959, Mr. Hubbard remembers visiting the Truitts and learned they were moving the next day. The minister remembers specifically because the following day, December 7, was Pearl Harbor Day and he had occasion to attend an affair of the American Legion. Truitt had been planning to move for some time, but he did not make up his mind until December 5, 1959.

Defendant put in evidence James', the son's, school attendance record. It was a sheet of paper with the notation at the top reading: "Truitts moved today 11-30-59;" at the right of the page there is a notation: "According to the information given me on 11-30-59 by Hermon sic and Perline sic Truitt, the Truitt family moved on 11-30-59." Defendant school teacher testified this was a record kept in the regular course of his duties. Source of the information was that the Truitt children told him several days before November 30, 1959, i. e., they were going to move to Delaware on December 1, 1959. Defendant entered the notation of an event, in an official record, presumably before the event, in fact, had occurred. A shadow lies across the reliability of the record. No effort of confirmation was made by defendant. No reference even appeared to the new Delaware address of the Truitt family, although such incomplete notation on an official school document was in violation of instructions of the State Board of Education as it might be important in event of emergency to get in communication with parents.⁸ Moreover, nowhere on the attendance record does the year 1959 appear except as cited above. Clearly, defendant had no actual knowledge of the Truitt family moving. At trial, although the attendance record was admitted into evidence, over objection, I observed, at the time,^8a the written-in notation of what someone else told defendant does not cure the vice of hearsay as to the writing if judged for its probative worth. The school-record notation does not show the Truitts left Maryland. Thus, it is just as reasonable to assume the Truitts remained in Maryland on December 1, 1959 as it is to assume a withdrawal from there on that date. Defendant's motion for dismissal for lack of diversity is denied.

2. Guest Status. The critical issue in the case at bar—a question of law—is whether plaintiffs are barred by the Delaware Guest Statute. But, the determination of the question of law must invariably rest on adequate facts.

Findings. Plaintiff, the son James, attended the Owens Corner Elementary School located in Sussex County, Delaware,⁹ and situated between Delmar, Delaware, and Sharptown, Maryland.¹⁰ The brown shingle school is small, rural, and has only two rooms.¹¹ The children are taken to and from school in a bus.¹² A schoolyard has equipment for recess play-periods.¹³ The school grades are from 1 through 6, and for 1958-59 there were about 50 students.¹⁴ Defendant Gaines became a teacher at the school in 1957 at which time there was only one other teacher.¹⁵ In 1958-59 a Miss Neal replaced the other teacher, through grades 1 to 3; she had no teaching experience; and plaintiff James was in her class.¹⁶ While the school had no principal,¹⁷ administrative decisions, without opportunity to consult a higher official, were made by the teacher with the greater experience.¹⁸ There was no school nurse.¹⁹ If a student was injured or ill in school, the student would be taken to a doctor or to his home by a teacher or parent if motor transportation was available;²⁰ first aid would be applied by a teacher.²¹ The policy of the Board of Education was the first consideration must be the child's welfare.²²

There was a rural elementary supervisor with jurisdiction over the Owens Corner School and all state board unit schools (40 schools) in Sussex County;²³ but it was impossible for such official to visit each school unit each month;²⁴ so, between visits, normal affairs are handled by the teachers and, if a child is injured, the situation is met without guidance from the supervisor.²⁵ The only other teacher, Miss Neal, looked to defendant Gaines for help and the benefit of his experience and advice.²⁶

James was 10 years old and a retarded child²⁷ and had difficulty in grasping even the fundamentals. Miss Neal often discussed with defendant Gaines her particular problems with James.²⁸ In short, James required specialized and personalized attention.²⁹ Defendant recognized his responsibility to the retarded child— greater than to average children—and he would hold conferences with parents of such a retarded child,³⁰ such parent-teacher conferences being held at the school or at the home of the particular child especially in a rural area where transportation for parents was difficult or impossible.³¹ Defendant Gaines admits he might have visited James' home on occasions prior to the injury sustained by the boy while at school.³² This incident occurred in November 1958 while the boy was playing in the school yard during the lunch period.³³ Defendant and Miss Neal were both in the school eating lunch,³⁴ when James came in crying and said he was hurt.³⁵ Defendant, after discussion with Miss Neal, stated he would take James home in defendant's car, as there was no other transportation or way to obtain medical care,³⁶ as this was part of his responsibility as teacher.³⁷

James did not return to school and defendant and Miss Neal discussed his prolonged absence.³⁸ It was decided the visiting teacher (acting as truant officer and social worker) should be notified,³⁹ which was done;⁴⁰ but the visiting teacher was busy at the time and it was understood he or she would investigate the situation as soon as possible.⁴¹ As stated, under such circumstances, the senior teacher at the particular school performs the visiting teacher's duties to determine the pupil's absence.⁴² In fact, the Board of Education encourages teachers to take the initiative in situations where the work force is not available.⁴³

The absence continuing, defendant states Mrs. Truitt sent him a message James was not getting better and asked defendant to visit him.⁴⁴ The visiting teacher had not yet appeared so defendant and Miss Neal went to James' home⁴⁵ to verify the pupil's absence,⁴⁶ and found James there with his ankle still swollen.⁴⁷ Several days later the mother sent a note James was not getting any better and medical attention was necessary.⁴⁸ Still the visiting teacher had made no appearance, so defendant notified James' mother he would be at her home the next day and take the boy to a doctor.⁴⁹ Defendant, concerned with James' absence and aware of a sense of responsibility to the retarded child, on the next day went to the Truitt home for the purpose of taking James to a doctor.⁵⁰ He arrived between 6 and 7 P. M., and left with James and his mother for the doctor.⁵¹ His action he stated was a benefit to the education system, to the school, and to his responsibilities and duties as a teacher. Tr. 190.

This leads to certain subjective or inference facts. Defendant felt James was staying out of school too long for his injury,⁵² but, at the same time, defendant felt a personal responsibility for James' injury since it occurred in the school yard when both defendant and Miss Neal were inside the school eating,⁵³ and it was his job to supervise the children during school hours.⁵⁴ Feeling a personal responsibility, he wanted the pupil to obtain prompt medical care.⁵⁵ In fact, defendant loaned Mrs. Truitt $2 to pay the doctor's bill.⁵⁶, ⁵⁷

Absenteeism is regarded as a serious problem by the Board of Education; responsibility is placed on school administrative personnel to assure validity of absences from school; primary responsibility is upon parents, but teachers in charge have a policy demanding opposition to unnecessary and uninterrupted absences.⁵⁸ In case of illness, the child's welfare is a first consideration.⁵⁹ From his own statements, defendant, here, has dedicated himself to the profession of teaching, desires to become a better teacher, and make a better contribution to the education of his children.⁶⁰ At the time of the motor accident described infra defendant's presence in his own car with Mrs. Truitt and her son James on his way to the doctor was neither for pleasure nor companionship; he took the pupil for medical care to promote the mutual interests of both himself and them.⁶¹

Opinion. One of the purposes of the Delaware Guest Statute is...