Virginia Beach Bus Line v. Campbell, 3613.

Citation73 F.2d 97
Decision Date02 October 1934
Docket NumberNo. 3613.,3613.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

John W. Hester, of Washington, D. C., and C. E. Thompson, of Elizabeth City, N. C. (J. Kenyon Wilson, of Elizabeth City, N. C., on the brief), for appellant.

W. H. Oakey, Jr., of Hertford, N. C., and P. W. McMullan, of Elizabeth City, N. C. (J. B. McMullan, of Elizabeth City, N. C., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and WAY, District Judge.

NORTHCOTT, Circuit Judge.

This is an action at law brought in the superior court of Perquimans county, N. C., in December, 1931, by the appellee, herein referred to as the plaintiff, against the appellant, herein referred to as the defendant. The cause was removed by the defendant to the District Court of the United States for the Eastern District of North Carolina. The action was originally brought against the defendant and the Norfolk Southern Railroad Company as joint tort-feasors. On May 22, 1933, the cause was heard as to the Norfolk Southern Railroad Company, and judgment given for the railroad. From this judgment no appeal was taken. On May 25, 1933, the cause was tried as to the defendant, the appellant here. After the hearing of evidence the cause was submitted to the jury upon certain issues which were answered as follows:

"1st. Was the plaintiff injured by the negligence of the defendant, Virginia Beach Bus Line, as alleged? Answer: Yes.

"2nd. Was such negligence willful and wanton, as alleged? Answer: Yes.

"3rd. Was the plaintiff, at the time of such injury, a passenger for hire upon the bus of said defendant, Virginia Beach Bus Line, as alleged? Answer: Yes.

"4th. Did the plaintiff execute to the defendant, Virginia Beach Bus Line, a release, as alleged? Answer: Yes.

"5th. If so, was the execution of such release procured by fraud or misrepresentation, as alleged? Answer: Yes.

"6th. What damages, if any, is plaintiff entitled to recover? Answer: $8,645.00."

Upon this finding of the jury, judgment was entered in favor of the plaintiff in the amount found by the jury, from which judgment this appeal was brought.

It is urged on behalf of the defendant that there was error in the trial below: (1) In permitting the fact that the defendant had insurance to be brought to the attention of the jury; (2) in not adjudging the action abated after the judgment was rendered in favor of one of the defendants, Norfolk Southern Railroad Company; (3) in admitting the testimony of Dr. McMullan, the expert witness, and in refusing defendant's prayer based upon said testimony; (4) in refusing to set aside the verdict on the second issue; (5 and 6) in permitting the plaintiff to recover when she was riding on a pass alleged to have been issued in violation of the law; (7) in holding that there was sufficient evidence of fraud on the part of the defendant to vitiate a covenant not to sue, signed by the plaintiff and introduced in the trial of the case; and (8) that there was an abuse of discretion by the trial judge that entitled defendant to a new trial.

On the first point raised on behalf of the defendant, we are of the opinion that in view of the fact that the agreement not to sue was first brought into the case by the defendant's answer, it was relevant and proper that the plaintiff should show in her reply that the man who secured the agreement was the representative or adjuster of an insurance company, and that her testimony with respect to that fact was also proper. The defendant could not bring this written agreement not to sue into the case without bringing with it all the circumstances surrounding its procurement. In addition to this, the law of North Carolina requires bus lines to carry insurance (North Carolina Code 1931, § 2613 (o), and this was a matter of common knowledge.

The fact that there was a judgment as to one of the codefendants in no way affected the issues presented here between the plaintiff and the defendant. There was no objection on behalf of the defendant to the judgment in favor of the railroad company, and no appeal was taken from that judgment. In Brown v. Railroad, 188 N. C. 52, 123 S. E. 633, 636, the court said: "As we understand the argument, however, it is insisted for appellant that, the board of aldermen having been exonerated by verdict and judgment, the railroad is thereby relieved on account of an alleged privity between them; * * * but, in our opinion, neither proposition can be maintained. As to the first, the default imputed here is for a pronounced breach of public duty willfully and knowingly committed and constitutes a tort; true, in certain instances the tort may be waived and the injured party be allowed to sue in contract, but the breach of duty is none the less a tort for which any and all the participants may be held severally liable for the whole amount, and under these circumstances there is no such privity recognized as will render the exoneration of one a protection to the other."

See, also, Raulf v. Elizabeth City Light & Power Company, 176 N. C. 691, 97 S. E. 236; Ballinger v. Thomas, 195 N. C. 517, 142 S. E. 761. Compare Guthrie v. City of Durham, 168 N. C. 573, 84 S. E. 859; Bowman v. City of Greensboro, 190 N. C. 611, 130 S. E. 502.

As to the testimony of the medical expert, the record discloses that the hypothetical question propounded to him might have been better framed and more specific as to detail, and that it omitted any reference to some of the facts brought out by the evidence. Counsel should have presented their views on cross-examination and thus shown that a consideration of all the facts would alter the opinion of the witness. 11 R. C. L. 580; Dunagan v. Appalachian Power Company (C. C. A.) 33 F.(2d) 876, 68 A. L. R. 1393. A hypothetical question is not objectionable when based on evidence merely because one matter in evidence is not fully developed. The weight which this matter may have had on the opinion of the witness can be tested by cross-examination and questions propounded eliminating from consideration the matter which is thought not to have been sufficiently proved. As said by Judge Hawley in Denver & R. G. R. Co. v. Roller (C. C. A.) 100 F. 738, 754, 49 L. R. A. 77: "It would be reversible error to admit the answer of expert witnesses to hypothetical questions which assume the existence of facts upon which no evidence is offered. But when the question assumes the existence of any state of facts which the evidence directly, fairly, and reasonably tends to establish or justify, and does not transcend the range of evidence, it is proper to permit such questions to be answered, and it is not necessary that the questions shall embrace or cover all the facts in the case."

The same judge in Swensen v. Bender (C. C. A.) 114 F. 1, 6, thus states the rule: "The objection to this question was that, `It was based upon facts not in evidence, and upon a hypothetical nervous condition subsequent to the accident of which there was no evidence.' This objection was properly overruled. There was testimony offered upon every fact specified in the question. It is always proper to permit such questions to be answered, and it is not, as a general rule, necessary that the questions should embrace or cover all the facts of the case."

In Woodward v. Chicago, M. & St. P. R. Company (C. C. A.) 122 F. 66, 68, the late Judge Walter H. Sanborn said: "A hypothetical question which assumes and fairly states the existence of any state of facts which the evidence directly and reasonably tends to establish or justify, and which does not assume facts beyond the range of the evidence, may be properly asked and answered, although it does not assume or state every fact in the case."

See, also, opinion of Judge Rogers in Napier v. Greenzweig (C. C. A.) 256 F. 196, 203, where the rule as above stated is approved, and it is said that "what facts a hypothetical question must cover are to be determined by the sound discretion of the trial judge." The allowance of a question certainly could not be held an abuse of discretion where it embodied the facts in testimony, merely because the evidence as to some of these facts was not as full as it might have been. It was for the witness and not for the judge to determine whether upon the facts stated he could express a scientific opinion; the weight of that opinion being for the jury.

The admissibility of the evidence is sustained by the North Carolina cases of Dempster v. Fite, 203 N. C. 697, 167 S. E. 33; Martin v. P. H. Hanes Knitting Company, 189 N. C. 644, 127 S. E. 688; Parrish v. R. Co., 146 N. C. 125, 59 S. E. 348. And we are governed by the state decisions as to the admissibility of evidence in civil cases at law. Standard Oil Co. v. Cates (C. C. A.) 28 F.(2d) 718.

The federal rule, on this point, seems to be in accord with the rule in North Carolina. Eastern Transportation Line v. Patrick F. Hope, 95 U. S. 297, 24 L. Ed. 477; Union Insurance Co. v. Smith, 124 U. S. 405, 8 S. Ct. 534, 31 L. Ed. 497; McGowan v. American Pressed Tan Bark Co., 121 U. S. 575, 7 S. Ct. 1315, 30 L. Ed. 1027; Texas & Pacific R. Co. v. Watson, 190 U. S. 287, 23 S. Ct. 681, 47 L. Ed. 1057; Cropper v. Titanium Pigment Company (C. C. A.) 47 F.(2d) 1038, 78 A. L. R. 737; Illinois...

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