Petition for Writ of Certiorari — Stearns v. Tabor

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SRERY | |

es FILED

SUPREME COURT, Di & ) | ee

| 7 APR 8 1068

ar DAV, GLERK

in the Supreme Court of the

| Unjted States

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BONITA. M. TABOR, a Minor by LEWIS NWN.

TABOR and BETTY W. TABOR, Her Parents and

Natural Guardians, and LEWIS H. TABOR and

’ BETTY W. TABOR, Individually and as Husband

| and Wife

“VS.

RICHARD F. MILLER and JOHN R. STKARNS

and HERBERT BOARDMAN LORD, JR. (3d Pty.

Pitf.) |

JOHN R. STEARNS, PETITIONER

PETITION FOR A WRIT OF CERTIORARI TO.

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT » .

Murray (. GoLDMAN “4

Attorney for Petitioner .

1616 One Kast Penn Square , |

Philadelphia, Penna. 19107

MER SOR RENCE ERNE eR ena ARRAN RE RR aa

Murrelle Printing, Compney ae ee Printers, 201-208 ——s re Peer, sevt, Pa.

Case:Caption .

IN THE SUPREME COURT.OF THE UNITED STATES ©

No.

Bonita M. Tabor, a. minor by Lewis H. Tabor and. Betty

“W. Tabor, her parents and natural guardians and Lewis

~ H. Tabor and Betty W. Tabor, individually and as husband

&, and wife

| v. : ‘

Richard F. Mild and John R. Stearns and Herbert Board-

man Lord, Jr. (3d oe =o sy

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT °

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Petitioner, John R. Stearns, respectfully ;» ays that a —

writ of certiorari issue to review the final judgment of

the United States Court of Appeals for the Third Cireuit

entered in the above entitled case on January 25,:1968.

Opinions Below and Jurisdiction

3 OPINIONS BELOW .

The opinion of the District Court-for the Hastern-

District of Pennsylvania dismissing. defendant’s motion

‘for new trial is reported in 269 Fed. Supp. 647 (1967).

‘The per curiam opinion 06 the Court of Appeals. i is F.

2d | , 1968. a

JURISDICTION © |

aioe S

el

co \judgment of the Court of oui for the Third

_ > Cireuit was entered on January 25, 1968. The jurisdiction

of this Court is invoked’ under 28 U.S.C. hs Seaeett).

a

Question Presented

- QUESTION PRESENTED:

Were Petitioner’s' rights | wader the Soldiers’ and

- Sailors’ Civil Relief Act of 1940 violated by a- failure to

grant_a- -continuance of the trial where. petitioner’s un-

availability due to military servicé was unchallenged by

the parties, the. petitioner’s credibility was a major issue

to be passed upon: by the jury, a verdict was rendered

against petitioner substantially in excess of his liability

insurance coverage, and a new and substantial element of

damages arose during the course of the trial? |

Statutes Involved

‘9 bd

STATUTES INVOLVED

At any stage thereof any action or proceeding in any .

court in which a person in military service is involved,

either as plaintiff or defendant, during the period of such

_service or within sixty‘days thereafter may, in the dis-

_eretion of the court in which it is pending on it own motion, .

and shall, on application to it by such person or some per-

‘son on his behalf, be stayed as provided in this Act [Sec-

tions 501-548 and 560-590 of this Appendix], unless, in the

opinion of the court, the ability of plaintiff to prosecute the

action or the defendant to conduct his defense is not ma-.

terially affected by reason of his military service. Oct. 17, -

1940, c.'888, §201,. 54 Stat. 1181; 50 U.S.C. App. 3521. ;

Statement of the Case

— ‘ |

STATEMENT OF. THE CASE

ee | ,

This diversity - action arises from a chain reaction

motor vehicle collision which took place on June 9, 1961.

Plaintiffs were in the first vehicle. Defendant: Miller was —

in the second vehicle in the chain. Defendant Stearns was

in the.third and defendant Lord was in- the fourth ve-

hicle. . Plaintiffs were struck in the rear by the vehicle —

‘driver’ by defendant Miller, but plaintiffs were basically —

uncertain as to how the accident occurred. At trial, they

relied’ on the ‘testimony of the defendants. Defendant.

Miller testified that his vehicle was pushed into the Tabor

car by defendant Stearns. Defendant Stearns and his

passenger (both testifying by deposition) contended that

defendant Miller had already struck the plaintiff’s car

when the Stearns vehicle struck the Miller vehicle. The .

testimony of a police officer, Celia, supported defendant

Stearns’. version of: the accident. Defendant ‘Lord was

also uncertain how the acéident occurred. The credibility

of Stearns and Miller-was the determinative liability is-

sue.

; ¢

Counsel for defendant John R. Stearns,‘a career Air_

Force Officer then undergoing flight training, made three

applications for a continuance. pending Stearns availability

for trial or completion. of flight training or discharge from ._

the service. Although the fact of his unavailability was .

then unchallenged, all applications were denied.

Defendant Stearns’ absence was complicated by ¢ the :

fact that a substantial element of damages, aggravation

é

Statement of the Case 2

. of plaintiff's mental illness, arose for the first time gares:

the course of the litigation.

At the trial of the action the issue of liability was

resolved against defendant Stearns only, in an ount

which i is substantially in excess of his insurance coyerage.

Petitioner’s motion for a new trial was denied by ’ the

United - States District Coart and the judgment affirmed

by the United States Court of Appeals for the Third Cir-

cuit. This petition followed.

é

<

a

a8)

Reasons for Allowance of Writ

By, 7 . ° .

REASONS FOR ALLOWANCE OF WRIT

This.case presents three issues which arise under the .

Soldiers’ and Sailors’ Civil Relief Act. Prior to their dis-

position by the lower courts, the questions had not been.

squarely decided. It appears, however, that the disposi-

tion made thus far in this case is contrary to the trend

of earlier decisions of other federal and state courts. This

conflict involves a matter of fundamental importance to

all under the protection of the Soldiers’ and Sailors? Re-_

lief Act, the parties engaged in litigation with them, and

the public at large. s . .

1. The effect of the existence of liability insurance

and ‘the extent of coverage on the request by an insured

litigant for protection under the Soldiers’ and. Sailors’

Relief Act has been partially treated by the Courts and

considered by legal writers: Boone vs. Lightner, 319 U.S.

561 (1943) ;. Lindsey vs. Williams, 260 'S.W. 2d 472 (Mo.

1953), cert. denied 347 U.S. 904; Swiderski vs. Mooden-

bough (1942), D.C. Ore., 45 Fed. Supp. 790; 47 Dick. L. R.

" .. 129 (1943). -the Boone case, although an insurance .

company was racterized as “the real defendant” the

amount of insurance coverage was not in issue. In the .

Lindsey case, the fact that the recovery sought was with-

in policy limits was held to be justification for refusing a

continuance due to military service. This position is

favorably cormmented upon in the treatment of the sub-

‘act given by the Dickinson Law Review, supra. In

Swiderski vs. Moodenbough, a refusal to stay was justi-

fied on the ground that the plaintiff agreed to limit the

Reasons for Allowance of Writ

- amount of his recovery ‘to ‘the amount of the liability

policy covering the defendant. It has not been previously

decided, however, whether an opposite approach should

be taken in a case such as the instant one, where the ver-

dict substantially exceeded the defendant’s insurance pro-

tection. The rationale and implications of the previously

cited authorities would indicate that the prejudice arising

from an excess verdict would require a stay of proceedings

asa matter of law. The lower courts’ decisions in the

instant case, however, have reached the opposite con-

clusion.

2. This Court has held that the pivotal question un-

‘der the Act is whether “the absence of . . . the defendant

to conduct his defense is . . . materially affected by: rea-_

son of his military service.” Boone vs. Lightner, 319 U.S.

561 (1943). It is important that the Court define more —

precisely what circumstances materially affect an absent

party’s defense. Where virtually the only liability issue

before a jury will be determined by a party’s credibility, |

is his defense materially affected by his inability to es-

tablish that credibility by testifying in person? Is his

defense materially affected when his opposition is avail-

‘able to so testify and he is not? — :

Closely allied with this point is. the question of how

properly to react to the injection of a new’claim during

the course of trial in the absence ofa party. For ex:

ample, during the instant litigation, an added claim for

damages arose for the first time and was, according to

the trial judge, tried ‘‘by implication’. It is respectfully

suggested that this Court determine whether a modifica-

tion of the issues “materially affects” the conduct of the

defense, within the meaning of the Act.

9

Reasons for Allowance of Writ

3.- Finally, this Court is urged to examine the stand-

‘ards established by the lower courts herein for proviltg

‘the unavailability of a, party in the military. service.

These decisions place virtually an insurmountable bur-

den of proof on ‘servicemen seeking the protection af-

forded them by the Act. If these decisions are permitted

to stand the purposes of the act will be thwarted. The

difficulty of establishirig unavailability at the commence-

ment of, and. every day during the course of litigation

will now be as great as the burden of prosecuting. or de-

fending the lawsuit to be postponed.

CONCLUSION

ne

The provisions’ of the Soldiers’ and Sailors’ Relief

‘Act continue to, be relied upon very heavily as indicated

by the substantial amount of litigation which arises there- |

under, and by the sizable portion of our population that

‘s in the military service. Notwithstanding these factors,

however, the decided cases leave unanswered questions of

great importance to the beneficiaries of the Act and par-

ties engagéd in. litigation with them. The instant matter

presents the opportunity to answer a number of these

questions at once. , Paes

It is strongly urged that this petition for a writ of

certiorari be granted. ;

Respectfully submitted,

Murray C. GOLDMAN,

_ Attorney for Petitioner.

- 210

Opinion of the District Court

OPINION OF THE DISTRICT COURT

Kraft, J.

In this personal injury action the jury absolved two

defendants, Richard F. Miller (Miller) and Herbert B.

Lord, Jr. (Lord) and returned verdicts' in plaintiffs’

favor only against the remaining defendant, John ‘R.

Stearns (Stearns), who has moved for a new trial.

It is unnecessary to dwell, at length, upon the evidence ©

concerning liability, in light of the nature of Stearns’ at- .

tack on the verdict. Suffice it to say that the evidence

amply supports the jury’s determination of Stearns’ lia-

bility. Briefly summarized, the wife-plaintiff was a pas-

Senger in her husband’s car. This car, while stopped for

a traffic signal, was struck in’the rear by Miller’s auto-

‘mobile, which, initially, had been struck in the rear by

Stearns’ vehicle. Thereafter, Lord’s car struck Stearns’

_ station wagon in the rear, but this collision followed and

was unrelated to the Stearns-Miller-Tabor chain-collision.

Stearns saw the Miller car stopped 200 feet ahead, but

nonetheless, drove his car into the rear of Miller’s car at

a virtually unabated speed of 20 miles per hour.

1 Bonita Tabor $22,000 ; Sanita H. Tabor, her nisin $7,600;

and Bonita M. Tabor, a minor, by her parents and natural guardi-

ans, $400.

*The plaintiffs have filed a nr motion for a new

trial against Miller and Lord, in the event that Stearns prevails

on his- motion,

| 3 11

Opinion of the District Court

In support of his post-trial motion Stearns asserts

* that: \? ?

. I—a continuance ‘should have been granted be-

cause of Stearns’ unavailability due to military serv-

ice; | ee

| -I]—the issue of life expectancy of the wife-plain-

tiff should not have been submitted to the jury;

Ill—the trial judge erred in reading and affirm-

ing plaintiffs’ point for charge #6, which reads as

follows:

“6. A tortfeasor is liable to the full extent of ©

the damage inflicted even though that damage would

not have been so great had there not been an already

existing condition which was aggravated by the tort-

feasor’s misconduct. It is no defense to-a tortfeasor

that his victim was more susceptible to harm than he ~

might reasonably have foreseen: Said another way, a

tortfeasor must take his victim as he finds him: .Sci-

andra v. Shovlin, 418 Pa. 378, 381 (1965)’’;

T¥—the jury -was not charged with respect to: a

distinction between interested and disinterested wit-

nesses ; -" eR %

- V—the verdict was excessive.

_ The threshold question, challenging the propriety of

the denials of a continuance, requires some extended dis- .

cussion. The collision occurred on. June 9, 1961. Suit was

instituted on May 22, 1963. A. discovery deposition of

defendant, Stearns, was taken September 10, 1963. The

case appeared on the trial calendar for the fiscal year

1965-66, but was not reached. In the next year, on Novem-

aa’ &

Opinion of the District Court

‘ber 22, 1966, the case reached the head of the trial list, in

| the ready pool. All counsel were notified.

= Stearns’ attorney applied to Judge Body, then Calen-

dar Judge, for a continuance on N ovember 23, 1966. He

denied the application, but, endeavoring to accommodate

Captain Stearns, ordered the trial for a aie de January

9, 1967.

" Counsel for. Captain Stearns, on December 8, 1966,

applied to Chief Judge Clary, then Calendar Judge, for .

a continuance. The record of this proceeding (Document .

53)-discloses that a letter from Captain Stearns to his

attorney was read to the Calendar Judge. In that letter,

Captain Stearns, a career officer in the United States Air

-Force, who has served for almost six. years, represented

that he was undergoing pilot training in, Alabama, but

would be in Philadelphia from December 23 to December .

28, 1966. He also stated that, because of the shortage .of. ~

pilots and the Viet Nam situation, his commanding officer

thought it ‘‘highly desirable’ that he complete his pilot

training without interruption. In closing, Captain Stearns

requested his attorney ‘Please let me ‘know what pret )

sions are made.’’

_ This letter and couttee! ’s iediiaiitaliinin of his client’s

_unavailability were all that were presented to the Chief

‘Judge in support of the application. Chief Judge Clary - “

‘refused a continuance and ordered that Captain Stearns’

‘trial deposition be taken and the trial begun ‘‘on the 9th

of January or such sgt thereafter as we are able-to find

a a jufge to assign it to.’

The trial deposition of Captain Stearns was completed

‘on December 27, 1966. The case was assigned for trial to

| “a

Opinion of the District Court.

a jury on January 12, 1967. Before the trial commenced, =,

‘counsel for Captain. Stearns again applied for a continu-

ance, which the trial judge, cognizant of the earlier pro-

. e:

ceedings, denied. 2 an

Captain Stearns’ coynsel contends that the denials of

continuance prejudiced his client in depriving him of the

opportunity of having his credibility tested, im person, as -

did the remaining’ litigants. Militating against this factor

is the fact that the suit was already miore than 344 years ©

; old and involved injuries, which had been suffered. nearly

| 5 years before. -Then, too, there was no persuasive show- -

ing of Captain Stearns’ actual unavailability either by his

etter or his trial deposition. .The rights and interests of

the other litigants merited just consideration as well.

A fair reading of the letter and deposition, at most,

warrant. the conclusion that it would have been incouven-

ient for Captain Stearns to interrupt his pilot training to

appear for trial. No request was ‘made to the trial judge ~

for any special consideration to Captain Stearns, such.as,

holding an evening or Saturday session, despite the short

flight time between Alabama and Philadelphia. No affi- |

davit was.ever presented from the defendant’s command- -

ing officer or from the defendant, stating affirmatively,

that Captain Stearns could not be granted the ‘requisite

brief leave. ; aa

tinder the Soldiers’ and Sailors’ Civil Relief Act, 50

U.S.C. §521, a motion for stay of court proceedings is

addressed to. the discretion of the Court. The pivotal .

question is whether ‘‘the ability of . .. . the defendant to

conduct his defense is not materially affected by reason

of his military service.’? Boone v. Lightner, 319 US.

561 (1943). M3, *

fe .

;

Opinion of the District Court

“The Soldiers’ and Sailors’ Relief Act is always |

to be liberally construed to protect those who have

been obliged to drop their own affairs to take up the

burdens of the nation. The discretion that is vested

in trial courts to that end is not to be withheld on

nice calculations as to whether prejudice may. result

from absence, or absence result from service. Ab-.

sence when one’s rights or liabilities are being ad- .

judged, is usually prima facie prejudicial. But in some

few cases absence may be a policy, instead of the re-

sult of military service, and discretion is vested in the

courts to see that the immunities of the Act are not

put to such unworthy use.’’ Boone v. _ Lightner, id., at

p. 579 (emphasis in original).

One important, but hitherto unmentioned fact, is that

both the letter and ‘the deposition ‘are silent on the ques-

tion whether leave was, in fact, ‘available to Captain

Stearns, and if so, ‘‘Did he apply for a leave at all?. The

[letter] pretty clearly implied that he had not.’’ Boone v.

Lightner, id., at p. 572. The fact that Captain Stearng did

return to Philadelphia to have his trial deposition* taken

in December indicates that the prospect of a brief leave

to attend the trial was by no means impossible.

Although, ostensibly, the motions for continuance were :

made on behalf of Captain Stearns, we are fully aware >

that the real party in interest was Stearns’ liability in-

surance carrier.* Recent decisions in this Circuit appear

to indicate a trend by the Courts toward a liberalization

%See Boone v. Lightner, id. at p. 569 wherein the Court

| ‘stated: ‘‘Such a nominal defendant’s absence in military service

. might be urged by the insurance company, the real defendant,

as ground for deferring we trial until after the war.’’

.

beta ree atin

vite ; 15

Opinion of the District Court -

- of the rule which rigidly precludes the mention of insur-

ance in personal injury actions. Kiernan. v. VanSchak,

347 F. 2d 775 (3 Cir. 1965) ; Corbett v. Borandi et al., —

F.2d . (3 Cir. 1967); Slomberg v. Pennabaker, 35 L.W.

2598.(M.D. Pa. 1967) (discovery of insurance and policy:

limits allowed). In our view these motions for continu-

ance presented ‘a factual situation in which the existence

of insurance was one of the circumstances to be considered

in reaching a decision. The insurance carrier, through its

_investigators and retained counsel, had full control of the

preparation -of Captain Stearns’ defense. Adequate rea-

sonable notice of the impending trial was given to insurer

and insured. Captain Stearns’ discovery and trial deposi-

tions had been taken.

The primary liability for any adverse judgnient against

Captain Stearns was the insuter’s. While it is true that

the plaintiffs’ combined claims exceeded the policy limits,

we think it noteworthy that, on October 31, 1966, according

to the settlement memorandum of the pretrial judge, the

- ‘plaintiffs’ counsel indicated willingness to accept, in settle-

ment of all three actions, a sum which was well within the

policy limits. However, insurer’s counsel as attorney for

the defendant, Stearns, rejected this proposal. During the --

. promise. ep

trial the plaintiffs’ counsel, in conference with ‘the trial

judge and other counsel, continued to express willingness

to settle at the figure recommended by the pre-trial judge,

but Stearns’ counsel persisted in his rejection of the com-

‘‘It is common knowledge that a defendant in a

negligence action, when he is insured has nothing to

do with the case, except to come to court and testify:

as a witness. He does’ not choose the-attorney who is

16

Opinion of the Dist: ‘ict Court

= to defend the action’ or have any say in the way in

which the defense is to be conducted. He does no

negotiating for a settlement, he does not have to go

out and round up witnesses. All these things are done

for him by the insurance adjuster. Insurance com.

panies always carefully reduce their insured’s version

of the accident to writing as soon after the accident

as possible. -Once that is done, how then does his

military service affect the insurance company’s ability

to defend the action? To say that the insured is the.

defendant, and the insurance company is not, is to

ignore the facts of the case.’’ Soldiers’ and Sailors’

. Civil Relief Act, 47 Dick. L.R. 129, 135-136 (1943).

We are wholly unpersuaded. that the conduct of this

defendant’ s.defense was materially affected by his absence.

- No use was made of his deposition by his own counsel;

‘instead, it was offered only by the plaintiffs, Had Cap- -

tain Stearns been present, his. credibility could scarcely -

have been enhanced by trial testimony at variance ‘with

his earlier sworn trial deposition or-his discovery deposi-

tion. It is more probable that an unfavorable inference

would have been drawh by the jury from any such incon-

ne sistent testimony. .

Weighing all the relevant factors, including the fact

‘ that Captain Stearns was a career officer, whose further

period of service in the military was clearly indeterminate,

we conclude that the applications for continuance were _

‘properly denied.

_ The defendant nei urges that | the ieee to the

jury of the issue of’ Mrs. Tabor’s life expectancy was

erroneous. Specifically, the defendant argues that, because

-_ —— 7

—

(emanates rm pomanymaipenarseraner aeons want - seas

7 Opinion of the District Court "

of her prior history of past iithoss, Mrs. Tabor had a very

limited life expectancy, and that expert testimony was re-

quired to permit the jury to reach a reasonable conclusion

upon her life expectancy.. Expert medical opinion, while —

possibly helpful, was not required. The jury had suffi-

Ye cient evidence to enable it reasonably to decide the proba-

: ble life expectancy of. the plaintiff as it related to her

~ claim for. future pain and suffering.

Defendant has submitted no precedents to support his

_ contention. He complains, moreover, that no life expect-

ancy tables were in evidence to assist the jury in i deciding

this point.

Contrary to the defendant’s assertion, more harm

than good might have resulted from the submission of life

tables to the jury under the facts of this case. Usually, a

condition precedent to the use of such tables is that the

plaintiff enjoyed normally good health before the. accident.

McCaffrey v. Schwartz, 285 Pa. 563, 576 (1926) (emphasis

. supplied).

The defendant objects, too to the sania ™ plain-

‘tiffs’ counsel to the Bible. passage concerning a life ex-

pectancy of “three score and ten’’ in. his closing apeceh ;

to the jury. .

0

| “And as a postscript to the mmaeniiitits of dis-

' ~approvals advanced by the defendant, it is urged that.

plaintiff’s counsel abused the law because he ‘offered

the Bible to establish a life table of ‘three score and

ten years.’’’ The defendant has presénted no prece-

dent to bar quotations from the Bible in any. phase of —

. legitimate argumentation in court.’’ Auerbach v. Phila.

Transp. Co., 421 Pa. 594, 608 (1966).

. , : ° }

then cnt aii aera th -_ iat aaa may ,

18

-. | Opinion of the District Court

' We gave (pp. 464, 465, 466) adequate instructions to

_ the jury respecting Mrs. Tabor’s prior condition of health:

as it might affect»her life expectancy and find this con-

tention of defendant without merit.

| We now turn our attention to the defendant’s third

-ground—that the trial judge erred in affirming plaintiffs’ —

point for charge No. 6 (see p. 2).. The defendant urges

_ that, since the plaintiff’s claim was limited to her injuries

. resulting from the accident (cervical strain and tendonitis

of the right shoulder), none of which existed before the

accident, it was prejudicial error to charge in the language

of plaintiffs’ point No. 6. Defendant argues that the only

existing ‘‘condition’”’, which the jury could have considered

to have been aggravated by the accident, was the plain- _

; tiff’s 3 emotional or mental illness for which no claim had .

been made by the plaintiff.

On this aspect + later charged in the language of

Stearns’ point No. 2:

‘‘There has hess. no medical testimony that the

agcident caused or even aggravated: an emotional. ill-

ness in the plaintiff, Betty Tabor. Therefore, you

may find the defendants responsible only for so much

of her acute physical complaints as you determine

were caused by the collision. The defendants can be

held responsible only for so much of her complaints -

as are truly physical in nature, since there is no evi-

dence that the defendants caused or aggravated a con-

dition of mental illness.”’ .

Any prejudice, real or imagined, resulting sie our

affirmation of plaintiffs’ sixth point’was corrected by our

"later affirmation. of defendant’ s second point. : Rodriguez

ig

Opinion of the District Court

v. Brunswick Corporation, 364 F: 2d 282, 286 (3 Cir:

1967); Mthalic et al. v. Teaaco, F.2d.) (3 Cir.

1967). : a |

It is ieee: to eli in this respect, that the de

fendant vigorously attempted to prove through his medi-

cal witnesses that Mrs. Tabor’ S$ pain was imagined and .

resulted from some undetermined functional or mental ill-

ness. Defendant elicited testimony that, in 1954, Mrs. Ta-

bor suffered a “nervous breakdown’”’ (N.T.-391). Stearns’

counsel tried: persistently to establish, through medical

testimony, that Mrs. Tabor’s pain’ was of a functional or

nonorganic nature (N.T. 184, 369, 370,-380, 383, 384, 392,

—

_ A substantial part of Mrs. Tabor’s claim for damages

was based upon her past, present and probable future pain

and suffering. She has worn a cervical collar almost con-

tinuously since her ‘ injury, with little relief. She exhibited

notable difficulty and marked discomfort in going to and

from the witness stand.

Before this injury, Mrs. ‘Tabor had had a long history

of ill health including, inter. alia, open heart surgery,

gynecological problems, pneumonia and a nervous break-

down.* Thus, on June 9, 1961, the defendant, Stearns, in-

jured a woman who had suffered a series of intermittent,

grave illnesses. It is common knowledge that adjustment

and sensitivity to pain vary with each individual. Some

are so constituted as to be able to ignore or withstand

severe pain; others are constituted less fortunately. The

‘Since this injury Mrs. Tabor has also experienced a kidney

' infection, pleurisy, renewed gynecological problems, and rib in-

juries from a fall in 1965.

20

Opinion of the District Court

jury had asia opportunity, by Jrctviation of Mrs. Tabor

on the witness stand and throughout the trial, to assess

the nature and degree of Mrs. Tabor’s suffering, discom-

_ fort and inconvenience.

Though plaintiffs’ counsel did not claim mental illness

or inject that issue into the case, the issue was raised and |

litigated by the defendant’s forceful, unrelenting interro-

gation on this subject F.R.C.P. 15(b) provides that if

issues are tried by the express. or implied consent of the

parties they shall be deemed to have been raised and the

pleadings amended. Niedland v. United States, 338 F. 2d

254, -259 (3 Cir. 1964). Having deliberately raised this

issue in an éffort to persuade the jury that Mrs. Tabor’s

claims of continued severe pain and suffering were only

the imaginings of a disordered mind, defendant’s counsel ~

may not now fairly complain of the consequences of his

own election to take the calculated risk, by now conjectur-

ing about its possible effects’ upon the jury.

_ The defendant’ s fourth ground merits only brief, dis-

cussion. We specifically instructed the jury (p. 44g). te"

‘seonsider the interest or lack of interest of the-witness in

the outcome of the trial’’; and, (p. 445) to consider wheth-

er there was ‘‘... any bias, prejudice or feeling which

might cause the testimony of that witness to be influénced

‘er affected thereby.” ;

The final ground, that the verdicts are excessive, is

also without merit. The principal. attack is made on the

$22,000 award to Mrs. Tabor. Stearns places undue’ ent-

* No objection was interposed by the plaintiffs’ counsel and

the issue was further explored by him on cross-examination.

| | =)

Opinion of the District Court

phasis on the modest medical expenses ($355) incurred for

treatment of Mrs. Tabor to support his argument, rejected

by the jury, that Mrs. Tabor’ s pain was “‘abnormal and

emotionally inspired.’’ He stresses the facts that one of

- plaintiff’s doctors had ‘‘recommended psychiatric care for -

her disorder’’, and that she did not undergo operative

procedures to correct her condition. The jury would have

been justified.in finding that Mrs. Tabor was understand-

ably fearful that, if she submitted to an: operation, grave

complications might result because of her heart condition;

; that she was reluctant to have ‘the surgery performed be-

cause there was no reasonable assurance of a successful

result by any physician who recommended the procedures.

‘An injured party should take reasonabie steps to reduce

the damages; if this may be done by a simple and safe

surgical operation, a refusal to submit thereto should be

considered by the jury in mitigation of damages - .. . but.

that is not true where the suggested operation is serious

and attended by grave danger.’’ Potts v. Guthrie, 282 Pa.

200, 203 (1925) ans ours) ; McCaffrey v. prenneee,

supra. ;

Kividence was presented to show that Mrs. Tabor has

a 25% permanent limitation of motion in her neck; ‘that

she has not performed household tasks since her injury;

that her htisband was obliged to do all the shopping, cook-

ing, cleaning and washing; that she has not participated

in recreational activities, as she did before the accident;

that sexual‘relations with her husband cause her pain and

are avoided; that, since her injury, she* has: experienced

almost constant, severe pain and discomfort—abated only

- by infrequent periods of relief; that she has: been unable

to lift her young grandchildren; that she must kneel to

- Opinion of the District Court .

wet in and out of bed; that a special headr est in the family

car is necessary to lessen her discomfort.

_As stated earlier, the evidence disclosed that Mrs. Ta-

bor experienced a ‘‘nervous breakdown”’ in 1954. Dr. Vates

and Dr. Blaker, in. their testimony and reports, expressed

their opinions that Mrs. Tabor’s problems. were probably

“‘functional’’ and nonorganic in nature (N. T. 392). Dr.

Blaker, in his report, noted that there was a Major ele-

ment of apprehension and anxiety here which is severe

enough to completely color the entire picture’’ (N.T. p.

383). Dr. Resnick examined Mrs. Tabor in 1965, and found

that ‘‘there were, as I believe, . .. physical and emotional

résiduals, that is there were effects still present in 1965

of the original injury of 1961; that these effects which

were still present were primarily organic, that is they

were physical, . . . there was structural injury to the neck,

but also with an abnormal emotional response to the m-

“jury.’’ (p. 143) (emphasis ours).

| Viewing the entire body of ‘evidence, we think that

_the jury could reasonably have concluded that Mrs. Ta-

bor’s ‘‘abnormal emotional response’’ to her injury was

directly attributable to the accident of 1961, and, so, Was

compensable. Alternatively, the jury might reasonably |

_ have concluded that a condition evidenced by the ‘‘nervous

breakdown’’ of 1954, though dormant thereafter, was ac-

tivated by the accident and injury of June 9, 1961. The »

outward manifestation of Mrs. Tabor’s ‘‘abnormal emo-

tional response’’ began soon after the accident, when she

began continuously to wear the cervical collar, which de-

fendant contends was neither necessary nor helpful. Sever- —

al physicians testified that the wearing of the collar limit- __

SBP OR, BEST TRATION 8 AA ND

23

Opinion of the District Court

Order

ed Mrs. Tabor’s neck 1 movement and contributed to its

rigidity. These effects were all directly related to the in-

jury and were part of ‘the plaintiff ’s claim.

If any prejudice: were to result from our charge, =

harmed Mrs. Tabor, not Stearns, to instruct the jury

peremptorily to exclude entirely all mental or emotional

aspects of Mrs. Tabor’s claim. Mihalic et al. v. Texaco,

F. @ (3 Cir. 1967 i

The award to Mr. Tabor cannot be fairly regarded as

excessive, in view of his loss of consortium, which was

an almost total deprivation of his wife’s past and future

companionship and services.

Perceiving no merit in the reasons assigned - in ‘sup-

port of. Stearns’ motion, we, enter the following:

ORDER

N ow, this 1st day of June, 1967, it is ordered that |

(1) the motion of defendant, John R. Stearns, for

new trial be, and it is, denied;

(2) the conditional motion of the plaintiffs for a

new trial be, and it is, denied. .

C. William Kraft

Judge.

a

Opinion of the Court of Appeals

UNITED STATES COURT: OF APPEALS.

For the Third Circuit

Nos. 16742 and 16743

Bonita M. Tabor, a Minor, by Lewis H. Tabor and Betty.

W. Tabor, Her Parents and Natural Guardians and Lewis

H. Tabor and Betty W. Tabor, Individually and as Husband

| and Wife,

V.

Richard F. Miller and John R. Stearns and Herbert

Boardman Lord, Jr. (3d Pty. Pitf.),

John R. Stearns, .

. Appellant in 16742

Appeals from the United States District Court for the

Eastern District of Pennsylvania

Argued January 8, 1968

-. Before McLaughlin, Freedman and Seitz, Circuit Judges

OPINION OF THE COURT

(Filed January 25, 1968)

Per Curiam: “pe /

Fas’ Plaintiffs’ automobile was the first and defendant

Stearns’ was the third in line in a four car chain reaction

Appellants in 16743.

ioe CHES RE WHS

Opinion of the Court of Appeals :

automobile collision. The drivers of the second and fourth

automobiles also were named as defendants, but the jury

awarded verdicts against defendant Stearns only. Stearns

appeals from the judgments entered against him in favor

of the plaintiffs. | co

At the time of the accident, on June 9, 1961, appellant

was on active duty in the United States Air Force. This

status has continued to the present time. | After the action

had been placed on the trial list, appellart’s counsel ap-

plied on November 23, 1966 for an indefinite postponement .

of the trial on the ground that. appellant, who was then

stationed in Selma, Alabama, was unavailable for trial be-

_ cause of his military service. The calendar judge denied

\.the application and set January 9, 1967 as the trial date,

subject to further order on application to the calendar

judge at a later time. On December 8, 1966 appellant’s

counsel again applied fora postponement, this time until

the fall of 1967. In support of the application he produced —

a letter from appellant stating that his commanding officer

had informed him that it would be ‘thighly desirable” for

him to complete without interruption his current pilot train-

ing, which would continue until J uly of 1967, and that he

. would be in Philadelphia for Christmas leave between De-

cember 23 and 28, 1966. The court denied the request and

ordered that appellant’s trial deposition be taken during

his Christmas leave. He had already ‘been examined ina.

pretrial oral deposition taken by: his counsel ‘in 1963. At

the commencement of the trial on January 12, 1967 appel-

lant’s counsel again requested a continuance, which ‘was —

denied. ;

If appellant had been unable to appear becanse he

was on active duty in the armed forces he would have

26

Opinion of the Court of Appeals

been entitled to a stay of the action under the Soldiers’

--and Sailors’ Civil Relief Act, 50 U.S.C. App. $521, “anless,

in the opinion of the court, the ability of .. . the de-

fendant to conduct his defense is not materially affected by

reason of his military service.”” The court had discretion

er a continuance was justified. Boone v. Lightner, 319 U.S.

_.. 561 (1943). In the present case appellant never stated that

\ -it would be impossible for him to appear at trial to testify,

and concededly his presence was important principally for

that purpose. Appellant testified on deposition’ only two

weeks before the trial, and the only prejudice he: might

have suffered resulted from his failure to appear before

. the jury in person. Neither he nor his counsel suggested

that the trial be held during his Christmas leave, or that

the court schedule a weekend session to accommodate his

testimony. ° Indeed, appellant’s letter, written after the

trial date was set, did not state that it would be impossible

for him to appear, but concluded with the statement that

it was “more important” for him to complete his training

uninterrupted than to appear at trial. In view of these

had elapsed-from the time of: the accident at the time ap-

pellant made his initial request for a postponement, we

conclude that the district court acted within the bounds of

its discretion in denying postponement.

' jury should consider the life expectancy of plaintiff Betty

Tabor in computing damages for future pain and suffering,

if it fourid that she would experience permanent discom-

fort as a result of the accident. He claims that the instrue-

- to determine, from all the circumstances of the case, wheth- .

circumstances, as well as the fact that more than five years. °

Appellant excepted to the court’s instruction that the -

_ tion was erroneous hecause of the absence of any evidence,

. ©

a.

: Opinion of the.Court of A ppeals “y

baile as mortality tables or expert opinion, regarding life

expectancy. While mortality tables and technical data are

admissible in Pennsylvania on the issue of life expectancy,

they are not required. McCaffrey v. Schwartz, 285 Pa.

561,132 Atl. 810 (1926). Indeed, in the McCaffrey ‘ease

the Pennsylvania Supreme Court said:

.. [Ijn none of our decisions have we said that

such Fabeiohs tables are necessary to either plain-

tiff’s or defendant’s case; we have merely said that

they are releyant proofs and admissible when offered.

. Where under the facts of a particular case,

the ‘admission of the tables would tend to-do more

harm than good (if, for instance, the plaintiff did not

enjoy normally good health before the accident, . . .)

the trial judge, in the exercise of a sound dideretion,

may bar them, just as he may refuse any other evi-

dence which. will tend to confuse or mislead the jury.”’

285 Pa. at 575-76, 132 Atl. at 815.

* Here, instead of. generalized evidence of average life ex-

pectancy the jury had before it plaintiff’s medical history,

which included open heart surgery, gynecological problems,

and kidney disease, all-of which shed light on her life ex-

pectancy. Enough evidence was introduced concerning the

present and past state of plaintiff’s health to allow the

jury to act’on this necessarily speculative question. |

Appellant also argues that the court in its charge sub-

_ mitted to the jury the possible aggravation of plaintiff

Betty Tabor’s pre-existilg conditions, although there was

no evidence to justify it. The challenged instruction was —

directed principally to the familiar doctrine that the tort-

_feasor takes his victim as he finds him, and is liable for

the full extent of the damage he has inflicted, even if it is

. Opinion of the Court of A ppeals

greater than he could have foreseen because the plaintiff

was particularly susceptible to injury.’ A passing reference

in the instruction to ‘‘an already existing condition which

was aggravated by the tortfeasor’ Ss: -misconduct”, if other-

wise confusing or erroneous, was corrected by the affirm-

ance of appellant’s second point for charge, which explicitly

removed any consideration of aggravation of emotional

condition from the case, and emphasized that'a tortfeasor

is liable only for those injuries which he has actually :

caused. This last point was reiterated. by the court at the

. very end of its charge/ and removed whatever doubts may

have remained on the subject. Moreover, appellant had

objected only generally to. the instruction containing the

reference to aggravation, and thus failed to call to the —

court’s attention that his objection went to a single clause

‘in an otherwise unquestionably correct instruction.

__ Finally, appellant asserts that the verdict of $22,000

in favor of plaintiff Betty. Tabor was excessive. There

was-credible expert testimony that she suffered from seri-

_ ‘ Ous irremediable discomfort and loss of mobility of her

neck, and that she would be required to wear a neck brace

_ indefinitely as a result of the accident. In the light of

this evidence, and despite plaintiff’s modest medical ex-

penses, we cannot conclude that the verdict, approved by

the trial court, was so excessive that we should interfere

to correct it.

a

Plaintiffs have taken a protective appeal (No. 16743)

. from the denial of their motion for a new trial against all

1 Alexander v. Knight, 197 Pa. Superior Ct. 79, 177 A. 2d 142,

aff’g on opinion below 25 D. & C. 2d- 649 (C.P. Phila. 1962) ;°

Prosser on Torts (3d ed. 1964), §50, at pp..300-01. See Pavorsky

v. Engels, 410 Pa. 100, 102-3, 188 A. 2d 731, 733 (1963). |

| ae | Opinion of the Court of pao PY a Je

defendants conditional on the reversal of the ieleente

of the court below. Because of our affirmance pt. the judg-

ments, we sustain the denial of the motion.

The judgments will be affirmed in both appeals

' A True Copy:

Teste:

_ Clerk of the United States Court of

Appeals for the Third Circuit.

30) < ; ;

. “ 5 Order

re)

= UNITED ‘STATES COURT OF APPEALS

For the Third Circuit

Mt

9

Nos. 16742 and 16743

i ;

ze Bonita M. Tabor, a hase by Lewis H. Tabor and Betty

W. "Tabor, Her Parents and Natural Guardians and Lewis

\. H.-Tabor and Betty W. Tabos, Individually and as Husband

‘ and Wife

Vie

“Richard F, Miller = John R. , and Herbert

_ Boardman Lord, Jr. (3d ied Pitf. re.

Present : McLaughlin, Freedman ‘and Seitz, me

ORDER AMENDING OPINION |

—

| ‘The opinion of ‘the _— filed Jauny 25, ‘1968 in

‘ _ this case is hereby amended as follows:

(1) By adding on page 4, line Bs at the énd of the

line; a superscript ‘‘1”.

(2) By substituting on page 4, line 24, a - superscript,

“2” for the superscript or”,

eS EET nes ey

-

5)

Order

(3) By adding the eo footnote: at the bottom

of page 4: *

ms McCaffrey was overruled in Brodie v. Phila-

delphia Transportation Co., 415 Pa. 296, 203 A. 2d

657 (1964), regarding the introduction of tablés show-

ing the reduction ‘of future damages to their present

worth, but the Brodie case has not impaired the author- __

ity of McCaffrey on the subject here discussed.”

(4) By renumbering footnote “1” to “2”. :

By the Court,

ABRAHAM L, FREEDMAN,

Circuit Judge.

Dated: February 15, 1968