Leavitt v. Scott, 7676.

• Decision Date: 16 December 1964
• Docket Number: No. 7676.,7676.
• Citation: 338 F.2d 749
• Parties: Alfred B. LEAVITT and G. P. Decker, Appellants, v. James Allen SCOTT, by and through his Guardian ad Litem Irma Lee Scott, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.2d 749 (1964)

Alfred B. LEAVITT and G. P. Decker, Appellants, v. James Allen SCOTT, by and through his Guardian ad Litem Irma Lee Scott, Appellee.

No. 7676.

United States Court of Appeals Tenth Circuit.

November 4, 1964.

Rehearing Denied December 16, 1964.

William K. Ris, Denver, Colo., and Don J. Hanson, Salt Lake City, Utah (Edward M. Garrett, Salt Lake City, Utah, on the brief), for appellants.

Dwight L. King, Salt Lake City, Utah (Gayle Dean Hunt, Salt Lake City, Utah, on the brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

This is a diversity action in which appellee, plaintiff below, was awarded a judgment totalling $93,489.40 for special and general damages found by a jury to have been suffered by him as the result of an automobile accident occurring upon a Utah highway. The determination of amount of damage was the only issue submitted to the jury, the trial court having directed a verdict upon liability. The appellants-defendants raise no appellate question concerning liability and direct their claims of error to the subjects of the jurisdiction of the trial court, the amount of the verdict, the instructions of the court on damages, and the rulings of the court affecting the scope of examination, particularly cross-examination of expert medical witnesses. Since each of appellants' contentions, including that attacking jurisdiction, is interwoven in the factual background of Mr. Scott's injuries, it is necessary to narrate that background in some detail.

Scott was injured in a head-on collision of two trucks. He suffered multiple injuries, the most severe of which was a cerebral concussion which rendered him totally unconscious for a period of three days and comatose for an additional five days. He was hospitalized for seventeen days and released to go back to work six weeks thereafter on May 12, 1962.

Before the accident, Scott had been employed as a truck driver and operator of a front end loader. He was described by his employer and by fellow employees as a skillful and generally superior employee and had been earning about $600 a month. Upon his return to employment his work proved unsatisfactory and his employer, after consulting with Scott's personal physician, let him go. Scott's difficulty lay in forgetfulness, unsureness and a noticeable inability to follow directions. He was considered a hazard to his own safety and to that of his fellow employees.

Between his period of hospitalization and the time of trial, Scott was examined for the purpose of diagnosis or treatment by four physicians including specialists in the field of neurology, neuro-surgery and neuro-psychiatry. Each testified at the trial by appearance or deposition and each stated that Scott was physically able and that all standard neurological tests, such as an electroencephalogram, were negative. Each agreed that no residual brain damage was demonstrable through such tests and that the tests were of such reliability that the existence of organic brain injury not demonstrable by the tests was at least uncommon. However, plaintiff's medical witnesses gave positive expert opinions that Scott was suffering from a brain injury attributable to his concussion that rendered him 50 to 100 per cent permanently disabled. Defendants' expert did not express a contrary opinion as to the existence of organic injury but indicated that the negative results of neurological tests would lead him to consider the possibility of a purely psychological or emotional disturbance. No positive opinion was asked for or given and this medical witness indicated he was not qualified to and did not test for purely psychological disturbance. Psychometric tests were given by plaintiff's witness, Dr. Troy, who found Scott's ability to think greatly impaired and attributed the condition to a brain injury. No treatment was indicated or recommended by any of the medical witnesses at the time of trial.

At the time of Scott's accident, March 6, 1962, he owned a home at Moab, Utah, in which he resided with his wife and children. After his attempt and failure to return to and perform his original employment he was advised by his doctor, as a therapeutic measure, to seek outdoor work of an undemanding nature requiring a minimum of responsibility. In August of 1962 he obtained a job as a hand upon a Colorado ranch and in September the entire Scott family moved to Collbran, Colorado. The change of locale and the simplicity of work did not benefit Scott's condition, his mental perplexity and lack of memory persisted, and in October, 1963, the family moved back to Moab, Utah.

The defendant Leavitt is a citizen of Utah. At the time of the accident and...