The opinion of the court was delivered by: John E. Miller, Chief Judge.
Civil Action No. 1751 — J.O. Kelly, Plaintiff
On May 3, 1963, J.O. Kelly, the plaintiff in Civil Action No.
1751, filed his complaint in the Circuit Court of Washington
County, Arkansas, against O.B. Marvin to recover for personal
injuries and property damages to his automobile alleged to have
been proximately caused by negligent acts of the defendant, O.B.
Marvin, in the operation of an automobile driven by him on April
4, 1963. Upon service of the summons, Marvin reported the
occurrence to the United States Attorney, and upon a
certification by the Attorney General that the defendant, Marvin,
was acting within the scope of his employment as an employee of
the United States, a rural mail carrier, at the time the incident
occurred out of which the suit arose, the case was removed to
this court upon a petition for removal filed by the defendant,
O.B. Marvin, on May 29, 1963, as provided in 28 U.S.C. § 2679
(1963 Supp.). On the same date the United States Attorney filed
the answer of O.B. Marvin and the defendant, United States, in
which they denied the allegations of negligence contained in the
complaint, and pleaded that the plaintiff was guilty of
contributory negligence which was the sole and proximate cause of
the collision between the automobile driven by plaintiff Kelly
and the defendant employee, Marvin.
On June 20, 1963, the United States filed its motion to be
substituted as party defendant in lieu of the defendant, O.B.
Marvin. On the same date the court ordered "that the United
States of America be substituted as party defendant in lieu of
defendant O.B. Marvin."
On October 18, 1963, the plaintiff Kelly filed his motion to
retain O.B. Marvin as party defendant and to require him "to
assert any claim which he purports to have against the plaintiff
arising out of the facts and circumstances alleged in the
complaint of plaintiff." In the alternative, the plaintiff moved
the court "to remand any portion of the above styled cause which
cannot be disposed of in this court to the Washington Circuit
Court from which it came for final disposition." On October 28,
1963, the court denied the motion of plaintiff Kelly to retain
the rural mail carrier and original defendant, O.B. Marvin, as a
On March 18, 1964, the plaintiff Kelly, having obtained leave
of the court, filed an amendment to his complaint in which he
alleged that immediately preceding the collision between his
automobile and the automobile of Marvin the fair market value of
his automobile was $5,600, and immediately after the collision
the market value of the automobile was $1,500; that he had
suffered property damage because of the collision in the sum of
$4,100 and was entitled to recover from the defendant the sum of
$32,600 for personal injuries and property damage.
Civil Action No. 1750 — John E. Sullivan, Plaintiff
On May 16, 1963, the plaintiff Sullivan filed his complaint in
this court against the United States of America, in which he
alleged that on April 4, 1963, he was riding as a guest in an
automobile traveling along U.S. Highway 71 at a place
approximately 4½ miles north of Mountainburg, Arkansas, when one
O.B. Marvin drove his motor vehicle out of a private driveway
onto the said highway and collided with the automobile in which
he was then riding as a guest.
Sullivan further alleged that at the time of the collision of
the automobile being driven by Marvin with the automobile in
which he was riding as a guest, that the said Marvin was an
employee of the United States Postal Department, and was acting
within the scope of his employment and in behalf of the United
States Postal Department in the delivery of United States mail.
On September 13, 1963, the defendant, United States, filed its
answer in which it alleged that the plaintiff Sullivan was riding
in an automobile being driven by J.O. Kelly (the plaintiff in
Civil Action No. 1751), who was guilty of negligence in that "he
failed to keep a proper lookout for automobiles ahead of him and
said negligence was a direct, proximate cause of the collision
with the automobile driven by O.B. Marvin. The plaintiff and J.O.
Kelly were at the time of the accident both school
administrators, and had made arrangements to travel together to
Little Rock, Arkansas, to attend a school administrators workshop
under arrangements and were engaged in a joint venture."
Then follows specific allegations of the alleged negligent acts
of J.O. Kelly in the operation of the automobile being driven by
him in which the plaintiff Sullivan was riding.
In his original complaint plaintiff Sullivan sought recovery of
$30,000 for personal injuries and medical expenses. On December
28, 1963, by amendment, the plaintiff Sullivan increased the
amount he sought to recover to the sum of $75,000 for progressive
personal injuries and medical expenses on account of alleged
changes in the physical and mental condition of the plaintiff
Sullivan. On February 28, 1964, the plaintiff filed his second
amendment to his complaint in which he again increased the amount
he sought to recover to $125,000 for personal injuries and
medical expenses because of alleged changes in the physical and
mental condition of plaintiff Sullivan.
On October 18, 1963, a pretrial conference was held in both
cases, and it appearing to the court that the actions involved a
common question of fact and law, the court on said date entered
an order consolidating the cases for trial in accordance with the
provisions of Rule 42(a), Fed.R.Civ.P. The cases as consolidated
were tried to the court without a jury on March 23 and 24, 1964.
Jurisdiction is vested in the court under the Federal Tort
Claims Act, 28 U.S.C. § 2671-2680, inclusive and Sec. 1346(b).
On Saturday, March 21, 1964, preceding the trial date, the
defendant filed a motion for continuance of Civil Action No.
1750, Sullivan, on the ground that at 4:20 p.m., Friday, March
20, 1964, the attorney for plaintiff Sullivan by telephone
advised the United States Attorney "that all medical tests and
reports concerning the physical and mental condition of John E.
Sullivan had not been delivered to the United States Attorney
because on this morning psychological tests had been conducted on
John E. Sullivan, the purpose of which was to furnish a basis for
expert testimony as to the mental condition of John E. Sullivan.
Results of said test according to Mr. Bassett [one of the
attorneys for Sullivan] will not be available until possibly
Sunday, March 22, 1964, at the earliest or March 23rd at the
latest." The defendant further alleged that it was unable to
evaluate the medical testimony in the short time remaining prior
to the trial, or to procure physical and psychological
examinations of the plaintiff Sullivan.
A response to the motion for continuance was filed on March 23,
a few minutes before the scheduled beginning of the trial. Upon a
consideration of the motion for continuance and the response
thereto, the court entered the following order:
"On this March 23, 1964, comes on for consideration
defendant's motion for continuance of the above
styled cases, and it is ordered that the said motion
be and is hereby overruled, upon the condition that
if during the trial it appears that fairness dictates
that the defendant, United States of America, should
have additional time to rebut psychological evidence,
the said defendant will be given a reasonable period
of time in which to evaluate the psychological tests
conducted on the plaintiff, John E. Sullivan, and to
secure expert opinion relative thereto, in rebuttal
to testimony introduced on behalf of the said
Upon the entry of such order the cases proceeded to trial, and
on the next day, March 24, at the conclusion of the evidence, the
court announced that the cases "are submitted and taken under
advisement by the court, subject to the defendant's evaluation of
psychological tests conducted on the plaintiff, John E. Sullivan;
the defendant is allowed ten days in which to evaluate said tests
and to secure expert opinion relative thereto, in rebuttal to
testimony introduced on behalf of said plaintiff, and
cross-examination of plaintiff Sullivan's witness, Dr. E. Phillip
Trapp, is postponed, subject to a later cross-examination if
counsel for the defendant desires to do so."
On April 3, 1964, the defendant, United States, filed its
motion, in which it alleged:
"On March 25, 1964, the United States Attorney
after discussing the matter with Dr. H.M. Hawkins,
Psychiatrist, forwarded by registered mail the
medical record of the plaintiff made in Fayetteville,
Arkansas, in April and August, 1963, and those made
in Little Rock in October, 1963. On March 27, 1964,
by registered mail the psychological test data and
report of Dr. E. Philip Trapp were forwarded to Dr.
Hawkins, having received the same on that day from
counsel for plaintiff. On March 31, 1964, transcript
of testimony having been made available, the same was
sent by registered mail to Dr. Hawkins, all of which
was done for the purpose of seeking advice as to the
manner in which the Government should proceed."
The Dr. Hawkins from whom the United States Attorney sought
advice is Chief Psychiatrist, Veterans Administration, North
Little Rock Hospital Division, and he advised the United States
Attorney at 4:00 p.m. on April 2 that the medical questions
presented to him could only be answered upon examination of
plaintiff (Sullivan) by a qualified psychiatrist, and that such
examination could not be conducted by him without the express
permission of the Director of the hospital. The next day the
United States Attorney, after attempting to contact the Director,
who was unavailable, was advised by Dr. Davis, his assistant,
that the medical staff of the Veterans Hospital would be unable
to furnish the necessary service.
Upon the filing of the motion, the court on the same day, April
3, 1964, entered an order allowing the defendant "three weeks
from this date in which to secure competent medical authority to
examine the plaintiff [Sullivan] in the above entitled cause
relative to his mental condition and the cause of same."
In accordance with the orders above mentioned the United States
Attorney made every effort to obtain additional testimony
relevant to the psychiatric and psychological condition of the
plaintiff Sullivan. After exhausting all other means of obtaining
such evidence, he employed Dr. Stephen B. Finch of Fayetteville,
and furnished Dr. Finch with a copy of the testimony of Dr. E.
Philip Trapp, and also arranged for the physical examination by
Dr. Finch of the plaintiff Sullivan. When the United States
Attorney received the report of Dr. Finch, he advised the court
that he was unable to obtain additional relevant testimony and
candidly filed the report of Dr. Finch dated April 29, 1964, as
part of the testimony in the case.
The attorneys did not submit oral arguments in support of their
respective contentions at the conclusion of the trial on March
24, 1964, but after the announcement of the United States
Attorney of April 29, 1964, relative to his request for
additional time to procure additional testimony, the parties
submitted briefs in support of their respective
contentions and the case is now ready for consideration and
On April 4, 1963, the date of the collision of the automobiles,
the plaintiff Kelly was and had been for several years a teacher
and superintendent of the Springdale, Arkansas, schools.
The plaintiff Sullivan likewise was a teacher and for several
years had been superintendent of the Greenland, Arkansas,
schools. Springdale, Arkansas, is approximately 8 or 9 miles
north of Fayetteville, and Greenland is approximately 5 miles
south of Fayetteville on U.S. Highway 71. For years the
plaintiffs had been accustomed to travel to teachers meetings in
Little Rock in the same automobile. A school administrators
workshop was to convene in Little Rock, Arkansas, in the early
afternoon of April 4, 1963, and Kelly had sent word to Sullivan
that he was driving to Little Rock in his automobile and invited
Sullivan to accompany him. In accordance with this arrangement
Kelly arrived at Greenland at 9:00 o'clock that morning, where
Sullivan entered the car, and they started their journey to
Little Rock along and upon Highway 71, a highly improved highway.
The highway runs generally north and south at the place of the
collision and has two lanes for traffic moving northward and one
lane for travel going south. The two northbound lanes, often
referred to by the witnesses as the "east" lanes, are separated
by a single white line, but are separated from the southbound
lane by a double yellow line. All of the lanes are of ample
Prior to reaching the point of the collision, they had come
through a curve to the right, approximately 1,000 feet north of
the point of collision. Kelly was driving his car, a 1962
Cadillac Deville Coupe, and was proceeding southward in ...