Before Biggs, Chief Judge, and McLAUGHLIN, Kalodner, Staley, Hastie, Ganey and Smith, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This litigation arises out of a Delaware automobile collision in which plaintiffs, while riding in a car owned and driven by defendant, sustained personal injuries. The case was tried to the court below. The latter concluded that jurisdictional diversity of citizenship existed and that defendant's negligence caused the accident and plaintiffs' injuries. Those findings are not disputed. The court also held that under the facts, plaintiffs did not come within the Delaware Guest Statute, 21 Del. Code, Section 6101(a).*fn1 Defendant appeals from the judgments entered against him on the verdicts awarded the plaintiffs. The status of plaintiffs as to the Delaware Guest Statute is the only question confronting us.
Plaintiff James Truitt is a retarded child who, at the date of the accident, December 3, 1958, was ten years old. Plaintiff Pearl L. Truitt is the mother of James. In 1958, James was a pupil attending a two room rural school in Sussex County, Delaware. The school had two teachers, the defendant, who was the senior, and Miss Neal. The evidence indicated that James needed specialized and personalized attention. In November 1958 James injured one of his ankles while playing in the school yard during the lunch period. At the time Mr. Gaines and Miss Neal were in the school having their lunch. Mr. Gaines took the boy home in his automobile. Two or three days later Mrs. Truitt sent a message to Mr. Gaines that James was not getting any better and asking Mr. Gaines to visit him. Mr. Gaines and Miss Neal did so. After that James did not return to school. Mr. Gaines and Miss Neal decided to notify the visiting teacher and did so. The visiting teacher was very busy in other areas but said she would investigate the matter as soon as possible. Several days later Mrs. Truitt again notified Mr. Gaines that her son was not getting any better and asked him to take James to a doctor. The visiting teacher had not as yet arrived at the school. Mr. Gaines sent a message to Mrs. Truitt that he would be at the Truitt home the next day and would take the boy to a doctor. Mr. Gaines did go to the Truitts the following day and brought Mrs. Truitt and James to the doctor. The accident happened on the way home from the doctor's.
It is argued on behalf of appellant that the latter's act in bringing plaintiffs to the doctor was performed by him solely out of charity for the Truitts, solely as a humanitarian act and therefore that the "* * * host driver received only a benefit in terms of feeling himself to be a good humanitarian." Appellant must go that far because under Delaware law if what appellant did was for the mutual benefit of the Truitts and himself, the guest statute did not bar recovery by the Truitts. Robb v. Ramey Associates, Inc., 40 Del. 520, 1 Terry 520, 523, 524, 14 A.2d 394 (Super.Ct.Del. 1940).
The facts in the record do not justify appellant's conclusion. On the contrary they firmly substantiate the finding of the trial judge that the Truitts, riding in the Gaines' automobile, were not "guests" of Mr. Gaines within the state statute.
As has been stated we are concerned with a small country school where all the pupils (including the retarded) were taught together. Dr. Miller, the State Superintendent of Schools, testified that it was true that while there was no legal responsibility for so doing, dedicated teachers recognize a responsibility to determine whether a child is able to return to school and whether or not that child should be in school when he is not. He considered this a very real benefit to the community. Earlier he had said regarding the responsibility of seeing to it that a child injured in school obtains medical care: "It is a responsibility assumed by the teacher but not expected by us necessarily." He further stated that it was within the teacher's expected responsibility to see that a child who required immediate medical attention obtains it. He said that quite possibly a teacher at the school in the absence of the special visiting teacher would follow up unexplained absences of pupils; that such practice benefited the entire educational system; that the Board of Education encouraged teachers to take the initiative in situations where other usual work force is not then available, if it is not outside the domain of that particular teacher as he or she understands it. He concluded by saying, "I think any good teacher would visit the home of a child who was ill if he was interested in children as a whole no matter what the circumstances."
Miss Neal was a witness. She remembered saying in an affidavit:
"That Mr. Gaines there stated in her presence that since James Walter Truitt was injured at school and had not returned to school Mr. Gaines felt that as a principal and teacher it was his responsibility to take James Walter Truitt to a doctor in order to effect his return to school."
On cross-examination she was asked:
"Q. Is there any explanation you want to make about what that paragraph means to you?"
"A. Well, the word 'responsibility' means that Mr. Gaines was just trying to be helpful, not that he was assuming some lawful duty of his, but he was just trying to be helpful as a teacher in taking the boy, because there was no other way to get the boy to the doctor's."
She was asked on redirect:
"Q. Isn't it true that both you and Mr. Gaines went to the Truitt home there at the grandmother's home ...