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KELLY v. UNITED STATES

May 27, 1964

J.O. KELLY, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT. JOHN E. SULLIVAN, PLAINTIFF, V. UNITED STATES OF AMERICA, DEFENDANT.



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 party defendant.

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
  plaintiff."

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 disposition.

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 width.

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 ...


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