Merchants Nat. Bank & Trust Co. of Fargo v. United States

• Decision Date: 16 October 1967
• Docket Number: Civ. No. 4185.
• Parties: The MERCHANTS NATIONAL BANK AND TRUST COMPANY OF FARGO, a corporation, as Administrator and Personal Representative of the Estate of Eloise A. Newgard, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

272 F. Supp. 409

The MERCHANTS NATIONAL BANK AND TRUST COMPANY OF FARGO, a corporation, as Administrator and Personal Representative of the Estate of Eloise A. Newgard, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 4185.

United States District Court D. North Dakota, Southeastern Division.

September 11, 1967.

As Corrected October 16, 1967.

COPYRIGHT MATERIAL OMITTED

John D. Kelly and Myron H. Bright, of Wattam, Vogel, Vogel, Bright & Peterson, Fargo, N. D., for plaintiff.

John O. Garaas, U. S. Atty., Kermit Edward Bye, Asst. U. S. Atty., Fargo, N. D., and Olin M. Stansbury, Jr., Wichita, Kan., for defendant.

MEMORANDUM OF DECISION

RONALD N. DAVIES, District Judge.

This is an action brought by the Merchants National Bank and Trust Company of Fargo, a corporation, as Administrator and Personal Representative of the Estate of Eloise A. Newgard, deceased, against the United States of America, to recover damages by reason of the alleged negligent conduct of the defendant's agents and employees which resulted in the killing of Eloise A. Newgard by her husband, William Bry Newgard,¹ in Detroit Lakes, Minnesota, July 31, 1965. Jurisdiction is predicated upon Title 28, U.S.C.A. § 1346 et seq., commonly described as the Federal Tort Claims Act. The suit is brought on behalf of the three minor children of the decedent: Elizabeth, born September 16, 1955, Ann Marie, born April 13, 1958, and Robert William, born December 28, 1960.

Basically, the questions here presented are factual in nature, necessitating a somewhat detailed statement of the evidence developed upon trial.

Early in the morning of January 17, 1965, Dr. Mack V. Traynor, a Fargo physician, was called to the Newgard apartment in Fargo, North Dakota, by Newgard's wife, Eloise. She was frantic-voiced and said she needed help. The doctor, promptly responding to the call, found Newgard glassy-eyed and making senseless talk about horses, cattle "and God most of the time." Dr. Traynor felt Newgard was completely psychotic. Earlier that same morning Eloise had telephoned her pastor, Reverend Richard C. Faust, who knew both Newgard and his wife. He, too, came to the apartment. A daughter, Elizabeth, admitted him. Eloise asked for his help. From elsewhere in the apartment Newgard was shouting "get him out." Reverend Faust says that Newgard finally appeared, yelling that he was "the reincarnation of Jesus Christ." He was clad in boxer shorts and T-shirt. Newgard pulled his shorts down, exposed himself and said he was "going to repopulate the world." Newgard accused his wife of unfaithfulness and threatened to kill her. Reverend Faust also understood Newgard to say that the "God of Fire" would repopulate the world.

Both the Newgards had taught Sunday school in his church, but Reverend Faust had so many complaints about Newgard, he was forced to relieve him of his teaching assignment. Reverend Faust later in the morning of January 17, 1965, was able to get Newgard to St. Luke's Hospital in Fargo by literally marching him there through the streets.

Dr. Albert C. Kohlmeyer, a well qualified psychiatrist, saw Newgard the same day in the Neuropsychiatric Institute section of the hospital. He found him very agitated, "carrying on" about religious ideas and testified that Newgard thought "he was Christ or some representative of Christ." Because of his delusional ideas, the psychiatrist thought Newgard was psychotic and although he saw Newgard only a couple of days, it was his belief that Newgard's illness had been coming on for a long time. Dr. Kohlmeyer felt Newgard was a schizophrenic, chronic, with acute exacerbation, paranoid type.

On January 19, 1965, the Cass County, North Dakota, Mental Health Board after a hearing, ordered Newgard committed to the State Hospital at Jamestown, North Dakota. Later because he was a veteran, an amended order was issued by the board, making the commitment a dual one so that Newgard could eventually be transferred to the Veterans Administration Hospital at Fort Meade,² South Dakota. Effective March 23, 1965, Newgard was transferred to Meade where he was admitted to a ward and placed under the direct supervision of Dr. Leonard S. Linnell, a medical doctor and psychiatrist. This was Dr. Linnell's first position as a psychiatrist since completion of his residency in psychiatry at the University of Minnesota and the Veterans Administration Hospital in Minneapolis.

Dr. Linnell had access to the records of Newgard from the North Dakota State Hospital at Jamestown, which he says he studied, he had access to the mental health records and the commitment papers which he studied and, of course, at all times while Newgard was at Meade he had access to any of Newgard's files and records of whatever kind or nature.

For a number of weeks Newgard was treated with tranquilizers and saw a clinical psychologist, Dr. Jesse H. Craft, weekly, for psychotherapy and examinations. During the course of Newgard's treatment and care he was interviewed by Dr. Linnell about once a week. The psychiatrist also sent Newgard to Dr. Truman M. Cheney, a vocational psychologist, for testing and reporting his job aptitudes. Newgard was given various jobs around the hospital, a procedure followed by Meade in the treatment of hospital patients and which is followed in hospitals of a similar nature. On or about May 25, 1965, Newgard received a letter from his father according to Dr. Linnell, advising Newgard an uncle had died. Newgard got permission from Dr. Linnell to attend the funeral and for that purpose was given a pass for one week's leave of absence "to his parents' home in North Dakota." Dr. Linnell told Newgard to go to the funeral and to his parents' home and to return to the hospital and not to make any other visits. It is quite evident that Dr. Linnell did not know where or when the funeral was to be held or even the city in North Dakota in which Newgard's parents lived. Nor did he consult any other member of the staff at Meade prior to releasing Newgard to attend a funeral conducted at Leeds, North Dakota, which was already over long before Newgard reached Fargo by bus on the day thereof. Dr. Linnell did, however, have Mrs. Lois Powers, a social worker at Meade, telephone Eloise Newgard as the patient's guardian, that Newgard was to be released to attend his uncle's funeral.

Mrs. Newgard, frightened for her life, sought help from people in Fargo who eventually got in touch with County Judge Paul M. Paulsen, Chairman of the Cass County Mental Health Board, who had Newgard taken into custody at the bus station in Fargo. Here it is noteworthy that Dr. Linnell called Judge Paulsen by long distance telephone on the day Newgard was released, ostensibly to attend the funeral and visit his parents' home. Dr. Linnell told Judge Paulsen, referring to Newgard, "Nobody need to be afraid because this man is cured and he wouldn't hurt anybody." Judge Paulsen thereupon told Dr. Linnell that everyone who knew about Newgard, his condition and his commitment, felt Newgard was far from well mentally and that he was a dangerous man and should not have been released. Dr. Linnell told Judge Paulsen also that "there is nothing to worry about; this man I have told not to stop in Fargo" and "not to try to see his wife." The Cass County Mental Health Board met next day and directed the sheriff of Cass County to return Newgard to Meade. On May 27, 1965, Cass County deputies Dewey Eagle and Archie Vraa did so.

After Newgard's return to Meade the authorities there began thinking about getting Newgard work in the Meade area. Sometime early in July, 1965, Eloise Newgard learned that Dr. Linnell and the Meade authorities were about to discharge Newgard, and very much concerned for her safety, called Meade and talked to Dr. Curt L. Rosenbaum, Meade's Chief of Staff. Dr. Rosenbaum says she was upset and hung up on him. Dr. Rosenbaum himself never diagnosed Newgard, although he conceded there was no way it could be said Newgard's condition was in complete remission when he arrived at Meade. Dr. Harland T. Hermann, Chief of Psychiatry at Meade, evaluated Newgard's case thereafter. Unfortuately his written report was in some manner lost since it could not be found in the Meade records and files, but Dr. Hermann remembers making it and Dr. Linnell remembers seeing it. Dr. Hermann advised Dr. Linnell not to discharge Newgard.³

Sometime before July 18, 1965, Dr. Truman M. Cheney, Counseling Psychologist at Meade, had made arrangements to put Newgard on leave at the ranch owned by Mr. and Mrs. Clarence A. Davis located some ten miles north of Belle Fourche, South Dakota. Dr. Cheney told Mr. Davis that Newgard had had "a mental disturbance, a nervous break-down" and that Newgard wanted hard work to forget some of his troubles and for rehabilitation purposes. Mr. Davis had never before had a Meade patient working on his ranch.

On July 18, 1865, Newgard was released by Dr. Linnell on work leave to rancher Davis. When asked what instructions he had received from Dr. Cheney with respect to Newgard, Mr. Davis replied:

"None whatsoever that I can recall. I don't believe there was anything said about any way that he would conduct himself, that he thought that he was completely arrested from his troubles and just needed a chance to work and get better rehabilitated again. But there was no reservations made of what I should do with him or for him; or there was no given pattern where I should pay the money or who I should give the money to or whether he was free to come and go. I assumed from the way they talked that I was to pay him and he was to come and go as he pleased."

Dr. Cheney on the other hand testified he had told Mr. Davis that Newgard had an emotional problem, that he might be nervous, that Newgard was upset because his wife was suing him for divorce, and that he had instructed Mr. Davis to call Meade if Newgard gave indication of unusual behavior.

Dr. Cheney...