Paul A. Hoff v. United States, 268 F.2d 646, 10th Cir. (1959)

268 F.
2d 646
Paul A. HOFF, Appellant,

v.
UNITED STATES of America, Appellee.
No. 5994.
United States Court of Appeals Tenth Circuit.

July 8, 1959.
Harry H. Peterson, Minneapolis, Minn., for appellant.

Ruth C. Streeter, Asst. U.S. Atty., Albuquerque, N.M. (James A. Borland,
U.S. Atty., Albuquerque, N.M., was with her on the brief), for appellee.
Before BRATTON, Chief Judge, and HUXMAN and LEWIS, Circuit
Judges.
HUXMAN, Circuit Judge.
This was an action brought by appellant, Paul A. Hoff, against the United
States to recover damages resulting from a collision of an airplane operated by
an agent of the Government with an automobile in which appellant was seated
at the time of the accident. It was instituted under the Federal Tort Claims Act,
28 U.S.C.A. 2674. Trial was had to the court. The court found the Government
guilty of negligence and entered a judgment of $4,000 in favor of appellant.
Since the court's finding that the Government's agent was guilty of negligence,
imposing liability on the Government, is not challenged, it is not necessary to
set out the facts which caused the collision.
The only assignment urged for reversal is the gross inadequacy of the
judgment. The parties are in agreement as to the applicable principles of law
governing an appellate court reviewing a judgment when the assertion is that
the judgment is grossly inadequate. It is therefore not necessary to cite
numerous authorities. It may be stated generally that the findings of the trial
court will not be set aside unless clearly erroneous and grossly inadequate.1
The trial judge made no detailed findings of fact. He entered a memorandum in
the form of an opinion. In this he found that damage to the car was $1,265.
With respect to the remaining damages, he found, 'With the exception of
$1,265.00, damage to the car, I shall not attempt to specify different items of
damage I have considered. There was some medical expense. There were some
minor injuries sustained by plaintiff, for which he should be compensated. I
expressly find there was no permanent injury attributable to this accident.'
Appellant's contention that after allowing $1,265 for damages to the car, the
court allowed $2,515.56 for doctor bills and that there then remained only
$219.44 for personal injuries, is not sustained by the record. The court did not
find that the doctor bills, chargeable to the Government, totalled $2,515.56. All
the court found was, 'There was some medical expense.' How much the court,
in fact, awarded for medical expense, cannot be ascertained from the record.
What the court found was that the difference between $4,000 and $1,265 would
be adequate compensation for all other damages suffered, such as medical
expense and what minor injuries he found appellant had incurred. In the
absence of a request for itemized findings of fact with respect to medical
expenses and personal injuries by appellant, he will not be heard to complain
about a general finding.2
The court's finding that $4,000 was adequate damages for all loss suffered can
be challenged successfully only if it must be said, as a matter of law, that its
finding that there were only some minor injuries and that there was no
permanent injury attributable to this accident, finds no support in the record. It
is without dispute that there was no outward or pathological evidence of any
physical injury or any injury that could be specifically catalogued. Appellant
offered the testimony of two doctors, Dr. Fitzpatrick and Dr. Ross. Dr.
Fitzpatrick testified that appellant suffered a whiplash of the spine. He said that
it could not be disclosed or proved by X-rays and sometimes not even by
neurological examinations. Whatever it is, it affects the spine. He testified that
it can be established by symptoms alone and just knowing the individual. He
further testified if what appellant told him was true, that he had never had any
other injury, then, in his opinion, this injury was the result of this accident. Dr.
Ross, a psychiatrist, testified that appellant had a posttraumatic neurosis which
was caused by his reaction to the crash while he was in the automobile. Both
Dr. Fitzpatrick and Dr. Ross testified that in their opinion appellant was totally
disabled from doing any kind of work.
Dr. Schultz and Dr. Corcoran testified for the Government. Dr. Schultz, an
orthopedist, found no exterior or pathological evidence of injury, but he did find
that appellant had a limp for which the doctor could give no apparent reason.
Dr. Corcoran testified that he was a dermatologist and not a psychiatrist and
that he could find no evidence of broken glass in appellant's skin. He further

testified that it was a case of neuro-dermatitis, and that this stemmed from
neurosis or psychosis, practically always of long standing.
7
That appellant was psycho-neurotic and that this condition had been of long
standing, is without dispute in the record. How much of this, if any, was
directly or proximately caused by this accident is not at all clear in the record.
Dr. Ross also testified that appellant had a post-traumatic neurosis which was
caused by his reaction to the crash.
It is contended that since Dr. Ross was the only psychiatrist, the court erred, as
a matter of law, in rejecting his testimony that the psycho-neurotic injuries from
which appellant is suffering was a result of this accident. The court considered
Dr. Ross's testimony. The court was, however, not required to accept Dr. Ross's
conclusion that the psycho-neurotic injury was the result of the accident.
Whether it was, was a question of fact which the court was required to find, and
under all the facts of the case, the court was not required to accept Dr. Ross's
conclusion as to the cause of appellant's present condition. Neither is it correct
to say that there is no other evidence in the record on this question. Dr.
Corcoran was a dermatologist, and as such he testified that, in his opinion, the
appellant was suffering from a neuro-dermatitis condition. He further testified
that while he was not a psychiatrist, he made the statement 'without any
equivocation at all, that I believe, without a doubt, this is a neuro-dermatitis,
and it is a positive fact that all neuro-dermatitis stems from a neurosis or
psychosis, practically always of long standing. In an indirect way I make that
statement.'
Without delving further into a detailed discussion of the testimony of the four
doctors, it is sufficient to say that we cannot say, as a matter of law. from an
examination of the evidence that the court's finding that there was no
permanent injury nor more than some minor injuries attributable to the accident
is so clearly erroneous as to require reversal.
10
Affirmed.
Employers' Liability Assurance Corp. v. Freeman, 10 Cir., 229 F.2d 547; Rule
52(a) F.R.Civ.P., 28 U.S.C.A
Sonken-Galamba Corp. v. Atchison, T. & S.F. Ry. Co., D.C., 34 F.Supp. 15

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268 F.

Paul A. HOFF, Appellant,

United States Court of Appeals Tenth Circuit.

Harry H. Peterson, Minneapolis, Minn., for appellant.

The trial judge made no detailed findings of fact. He entered a memorandum in

that he could find no evidence of broken glass in appellant's skin. He further

Sonken-Galamba Corp. v. Atchison, T. & S.F. Ry. Co., D.C., 34 F.Supp. 15

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