Doss Ex Rel. Doss v. Sewell

125 S.E.2d 899 (1962) 257 N.C. 404

Charles Ray DOSS, by and through his Next Friend, Mattie Doss,
v.
Marjorie Case SEWELL and Douglas Doss.

No. 671.

Supreme Court of North Carolina.

June 15, 1962.

Jordan, Wright, Henson & Nichols, by Luke Wright, Greensboro, for defendants-appellants.

Gwyn & Gwyn, by Allen H. Gwyn, Jr., Reidsville, for plaintiff-appellee.

HIGGINS, Justice.

The defendants' first assignment of error is addressed to the court's refusal to grant their motion for nonsuit at the close of the plaintiff's evidence. The assignment requires us to determine whether the evidence and the legitimate inferences from it, together with admissions in the pleadings, are sufficient to support a finding the plaintiff's injuries resulted from the defendants' gross negligence.

The accident occurred in Virginia. Liability, or lack of it, must be determined according to the substantive law of that State. Morse v. Walker, 229 N.C. 778, 51 S.E.2d 496; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. The Virginia guest statute (Code, Sec. 8-646.1) provides:

"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."

The Supreme Court of Appeals of Virginia has defined gross negligence and wilful and wanton disregard for safety in many cases, among them, Crabtree v. Dingus, 194 Va. 615, 74 S.E.2d 54: "Gross negligence, as we have often said, is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. * * * The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. * * * It has been described as such heedless and reckless disregard of the rights of another as should shock fairminded men." In Thomas v. Snow, 162 Va. 654, 174 S.E. 837 the court said: "Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton, and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence. * * * It is important to mark the distinction between acts or omissions which constitute gross negligence and those which are termed willful or wanton, because it is usually held that in the former contributory negligence on the part of plaintiff will defeat recovery, while in the latter it will not." Bates v. Thompson, 200 Va. 501, 106 S.E.2d 728; Young v. Dyer, 161 Va. 434, 170 S.E. 737; Jones v. Massie, 158 Va. 121, 163 S.E. 63; Sibley v. Slayton, 193 Va. 470, 69 S.E.2d 466; Hale v. Hale, 219 N.C. 191, 13 S.E.2d 221; Altman v. Aaronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185.

As the pleadings are cast in this action, we may eliminate the question of wilful and wanton disregard of safety. Gross negligence is alleged in the complaint and denied in the answer. Contributory negligence is not interposed as a defense. Consequently the finding of gross negligence is in itself sufficient to support the verdict. On the other hand, if contributory negligence had been alleged and found by the jury, the additional issue of wilful and wanton injury then would be material, but not otherwise. Consequently liability is fixed by the finding of gross negligence.

In this case the evidence disclosed the plaintiff, his older brother, Douglas Doss, and Michael Turner, all teen-age boys, were guests, or at least visitors, at the home of the defendant, Marjorie Case Sewell. Mrs. Sewell's son asked his mother for the use of the family automobile to take the boys, including his younger brother, to a drivein theater near Reidsville. Mrs. Sewell gave the keys to Julius, who, in her presence, gave them to Douglas Doss. The five boys—Douglas Doss driving—left for the theater after Mrs. Sewell gave them instructions about the time for their return.

The drive-in was showing a picture the boys had previously seen. They drove to another theater near Leaksville. After ascertaining they did not have enough money for all to gain admission, they decided to go to another across the line in Virginia. On this stage of the journey the wreck occurred.

It was dark. The party approached the intersection from the south at a rate of speed between 95 and 100 miles per hour over a road, the surface of which was only 18-20 feet wide. The younger of the Sewell boys requested Douglas to slow down. The others, including the plaintiff, apparently encouraged the speed. However, a short distance south of the intersection protected by a stop sign, the driver began to reduce speed and entered the intersection at 60 or more miles per hour. The driver failed to see, or disrgarded, the directional sign 62 feet south of the intersection. He failed to see, or disregarded, the luminous stop sign at the end of the traffic island. He missed the paved portion of the crossing, skidded over the south lanes, across the grass plot, knocked down a post, jumped the drainage ditch in the grass median, skidded across the north lanes, and crashed into the bank. Was the driver guilty of gross negligence under Virginia Law? Such operation of a vehicle with five boys aboard would shock fair-minded men. At least there would be a difference of opinion.

In McDowell, by Gravatt v. Dye, 193 Va. 390, 69 S.E.2d 459, the Supreme Court of Appeals of Virginia said: "The trial judge and the jury * * * saw the witnesses while testifying * * *. In such instances they have the advantage over an appellate court. * * * Whether the conduct of a person operating an automobile amounts to gross negligence * * * depends upon the facts and circumstances surrounding the operation. * * * If reasonable men may differ upon the question then a jury problem is presented."

The assignment of error No. 1, based on exceptions 1 and 2 for failure of the court to enter judgment of compulsory nonsuit, cannot be sustained. The defendant, Mrs. Sewell, did not tender an issue as to the agency of Douglas Doss and stated she was not contesting the question of agency. The evidence was sufficient to require the jury to determine whether the plaintiff was injured by the gross negligence of Douglas Doss.

The defendants' assignment of error No. 2, based on exception No. 3, involves three full pages of the charge dealing with definitions of negligence, gross negligence, and proximate cause. Assignment No. 4, based on exception No. 5, involves more than seven pages of the charge dealing with damages for temporary and permanent injury, pain, suffering, etc. These objections are broadside. They fail to pinpoint the specific objections. "Each exception to the charge is required by the statute (Code, § 550 [now C.S. 643]), to be `stated separately in articles numbered,' and no exception should contain more than one proposition, else it is not `specific' and must be disregarded." Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Gwaltney v. Provident Sav. Life Assurance Society, 132 N.C. 925, 44 S.E. 659; Barefoot v. Lee, 168 N.C. 89, 83 S.E. 247. "This exception falls under the condemnation of the necessary rule of appellate practice that an exception must point out some specific part of the charge as erroneous, and that an exception to a portion of a charge embracing a number of propositions is insufficient if any of the propositions are correct." Powell v. Daniel, 236 N.C. 489, 73 S.E.2d 143, citing many cases.

Assignments of error Nos. 2 and 4 are not presented in accordance with the rules. They are not sustained.

Assignment of Error No. 3 involves the statement of plaintiff's contentions. Such objections should be called to the attention of the court before verdict—otherwise they are deemed to have been waived. Millikan v. Simmons, 244 N.C. 195, 93 S.E.2d 59; Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817.

Assignments of error 5 and 6 involve alleged failure of the judge to review the testimony and to give equal stress to the contentions of the parties. These assignments are general rather than specific. However, the charge, when considered contextually, presents a clear, accurate, and fair picture of the duties and liabilities of the parties on the issues in the case.

The plaintiff, by his mother as next friend, pleaded as an item of damage the medical, surgical, and hospital bills incurred in the necessary treatment of the injury. The court permitted the doctors to testify as to treatment and their charges, which amounted to approximately $500.00. Necessary medical expense of an unemancipated infant is the responsibility of the father, if living, of the mother if he is not. A separate cause of action for recovery of such expenses exists in favor of the parent. Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925; Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492; Williams v. Charles Stores Co., 209 N.C. 591, 184 S.E. 496. When the parent in whom the cause of action exists is the next friend and participates in the trial in which an award is made to the infant for medical expenses, the participation is a waiver of the parent's right. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534.

The infant's right to recover medical expenses was raised by the defendants' brief after the docketing of this appeal. Both the mother, individually, and the father, Talmadge Doss, filed in this Court an express waiver of their right to recover medical expenses incident to the treatment of their son's injuries. Moreover, G.S. § 44-49 provides for a lien in favor of the physician or surgeon upon the fund recovered on account of the injury. It is immaterial to the defendants whether the infant or the parent asserts the claim. The parents' waiver of the right to recover medical expenses is a bar and precludes them hereafter from asserting such a claim.

The Clerk will certify the waiver to the Superior Court of Rockingham County to be filed as a part of the record. Otherwise, in the trial, we find

No error.