Martin v. Atlantic Coast Line Railroad Company

• Decision Date: 17 April 1961
• Docket Number: No. 18559.,18559.
• Citation: 289 F.2d 414
• Parties: Mildred D. MARTIN, Administratrix of the Estate of B. T. Martin, Deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F.2d 414 (1961)

Mildred D. MARTIN, Administratrix of the Estate of B. T. Martin, Deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 18559.

United States Court of Appeals Fifth Circuit.

April 17, 1961.

Joseph S. Lord, III, Philadelphia, Pa., Tom B. Stewart, Jr., Jacksonville, Fla., Richter, Lord & Levy, B. Nathaniel Richter, Charles A. Lord, Philadelphia, Pa., for appellant.

Ralph C. Dell, Tampa, Fla., Clark W. Toole, Jr., Frank G. Kurka, Jacksonville, Fla., Allen, Dell, Frank & Trinkle, Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case is before us again. As Administratrix of the Estate of B. T. Martin, Mrs. Mildred Martin, widow of a railroad engineer killed in an accident, sued the Atlantic Coast Line Railroad Co. under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for her husband's death.¹ The district court awarded $35,000 to Mrs. Martin as administratrix of her husband's estate. She appealed on the ground that the damages were inadequate in that the trial judge allowed no amount for the loss of her expected inheritance. We agreed with the appellant and remanded the case. Martin v. Atlantic Coast Line Railroad Co., 5 Cir., 1959, 268 F.2d 397. On remand, the trial judge found that the decedent's accumulations during his life expectancy would have been $32,000, having a present worth of $20,000.² Accordingly, the trial judge awarded Mrs. Martin one-third of this amount, or $6,700, her dower interest, for her loss of inheritance.³

Now appellant contends that the district court erred in not allowing an amount for the loss of inheritance by the decedent's adult, non-dependent children. This contention was not raised in the first case, either in the district court or in this Court. It was not raised in the district court when the case was tried on remand. The specification of error contains no reference to it. The appellant makes the contention for the first time in her brief on this second appeal.

Looking more closely at the record, this is what we find. On the first trial, the trial judge made his award of $35,000 to the plaintiff as "Administratrix of the Estate of B. T. Martin". The plaintiff filed motions to amend the judgment and for a new trial, claiming an additional amount for her loss of inheritance only. The trial judge denied the motions, filing a written opinion in which he explained at some length that he intentionally omitted any amount for Mrs. Martin's expectancy of inheritance in order to present to the Court of Appeals the question whether "the widow's loss of anticipated inheritance is a proper element of damages". Mrs. Martin's brief on the first appeal pinpointed the question for decision: "There is thus squarely presented the question of the right of the widow to her expected inheritance, and this appeal is accordingly raised upon that issue of law." She asked this Court to remand the case to the district court with instructions to award damages to her, because the law "allows the widow to recover for that portion of her expected inheritance of which she has been deprived by the tortious action of the defendant."

In the light of the trial, the specification of error, and the briefs, this Court in holding for the appellant pointed out: "Appellee argues that this statute creates a right of action for the benefit of dependents rather than for distributees of the deceased. Whether or not this contention is correct, it is of no significance here, since the appellant is not claiming a share of the estate qua estate but is claiming `pecuniary benefits' which she `might have reasonably received' from her husband had he not been killed as a result of appellee's negligence." Martin v. Atlantic Coast Line Railroad Company, 5 Cir., 1959, 268 F.2d 397, 399.

On remand, the district court had before it only the issue of determining additional damages for the widow's share of the inheritance. Both parties conceded this issue should be decided upon the record made at the original trial and that no additional evidence was needed. Again Mrs. Martin made no claim for increased damages for the adult, non-dependent children.

B. T. Martin, the decedent, was 58 years old when he died October 18, 1956. At the time of his death he was earning from $5,900 to $7,300 a year as a railroad engineer. He had a life expectancy of 16.05 years. He contributed $3,000 a year to his wife. The trial court found that Martin was "about to enter upon a term as County Commissioner at a salary of $3,000.00 a year", and that he was "the heir apparent to a $12,000.00 a year union position". On remand the trial judge made additional findings of fact. He found that Martin was not frugal; that Martin's "prospects of increased earnings do not lead the Court to conclude that he would have changed the habits of a lifetime with respect to thrift, and, therefore, to further conclude that he would have saved a substantial part of his increased earnings".

The appellant managed to inflate the decedent's probable earnings to almost $200,000. This figure assumes that Mr. Martin, at the time of his death nominated for the office of County Commissioner, would have been elected and reelected Commissioner until 1968. It assumes that Mr. Martin, as "heir apparent" to the Chairmanship of the Brother hood of Locomotive Engineers, on his retirement as an active engineer, would have been elected to that office in 1960 at a salary of $12,858.24 a year, and re-elected until his retirement at the age of seventy.

The only thing certain about elections is that they are uncertain. Once a county commissioner, not always a county commissioner. And, there's many a slip 'twixt the heir apparency and the throne — at all levels in all kinds of politics. The trial judge, however, generously concluded that these possibilities "may be expected, nevertheless, to result in some increase in his future estate". Giving the decedent the benefit of the doubt as to his political potentialities, and determining as well as one could what amount the decedent would probably have added to his personal estate if he had lived out his expectancy, and making another informed guess as to the total estate, after balancing all the pertinent factors, many of them imponderables, the trial judge came up with the amount of $32,000. Then, assuming that it would have been to the advantage of the widow to elect to take dower, the trial judge awarded her one-third of the present value of $20,000, or $6,700. The total judgment in her favor therefore amounted to $41,700.

We do not reach the question of the right of adult, non-dependent children to recover, under the FELA, for the loss of their expected inheritance. We hold, in the circumstances of this case, that the appellant has received all she claimed as administratrix. This Court gave the appellant precisely the relief she requested on the first appeal. The district court generously carried out our instructions on remand. On remand, the appellee had no opportunity to counter the new contention with evidence and argument below. The district court had no opportunity to consider the question. It is too late in the game for the appellant to seek new relief and a change in the rules. We cannot try cases piecemeal simply because after a second trial and in writing a brief on a second appeal, the attorneys generate an idea they should have advanced by specification of error on the first appeal.

Rule 24, subd. 2(b) of this Court, 28 U.S.C.A., provides that...