Wiggins v. LANE & COMPANY

• Decision Date: 13 March 1969
• Docket Number: Civ. A. No. 67-629.
• Citation: 298 F. Supp. 194
• Parties: James W. WIGGINS, Jr., Plaintiff, v. LANE & COMPANY, Inc. and Employers' Liability Assurance Corporation, Ltd., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

298 F. Supp. 194

James W. WIGGINS, Jr., Plaintiff, v. LANE & COMPANY, Inc. and Employers' Liability Assurance Corporation, Ltd., Defendants.

Civ. A. No. 67-629.

United States District Court E. D. Louisiana, New Orleans Division.

March 13, 1969.

John H. Brooks, New Orleans, La., for plaintiff.

Gordon F. Wilson, Jr., New Orleans, La., for defendants.

RULING ON DEFENDANT'S MOTION FOR DIRECTED VERDICT AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT

RUBIN, District Judge:

In this death action under the Jones Act,¹ after the jury returned a verdict for the decedent's suffering prior to his death, the defendant moved "for a directed verdict" or a "judgment notwithstanding the vedict" on the ground that there was no evidence that the decedent suffered pain, or, if he did, that his pain was of such brief duration as not to permit recovery. The jury found that the decedent experienced "conscious pain from the time of his initial injury to the time of death." The evidence before it indicated that the decedent was working on a pile driving rig approximately fifty feet above the deck of a barge. He was holding a rope when he was struck in the chest with great force by a piling being raised for placement in the leads and fell to the deck of the barge. Medical experts testified that he probably died the instant he hit the deck. The same experts offered no opinion as to whether he was conscious during the fall.²

Viewed most favorably to the plaintiff, the evidence indicates that the decedent struck the deck about two seconds after the initial blow.³ The jury awarded $10,000 for the decedent's pain and suffering under the survivorship section of the Federal Employers' Liability Act, 45 U.S.C.A. § 59, made applicable here by the Jones Act. Section 59 provides: "Any right of action given by this chapter to a person suffering injury shall survive * * *" in favor of designated representatives.

Under Rule 50(b) we treat the defendant's motion as a motion to have judgment entered on the verdict set aside and to have judgment entered in accordance with defendant's motion for a directed verdict.

The history of the enactment of state and federal wrongful death and survivorship statutes is thoroughly traced in two articles by Professor Wex S. Malone, "American Fatal Accident Statutes — Part I: The Legislative Birth Pains," 1965 Duke L.J. 673, and "The Genesis of Wrongful Death," 17 Stanford L.Rev. 1043 (1965). The common law doctrine stemmed from the rule adopted by English courts that "in a civil court the death of a human being could not be complained of as an injury." Baker v. Bolton, 1808, 1 Camp. 493, 170 Eng.Rep. 1033. This opinion, rendered by Lord Ellenborough, "whose forte," Professor Prosser says, "was never common sense,"⁴ was accepted in the United States with the result that it was cheaper for the defendant to kill a person than to tweak his nose. The rule was changed in England by the Fatal Accidents Act of 1846,⁵ otherwise known as Lord Campbell's Act. This created a cause of action for the death in favor of the decedent's personal representatives, for the benefit of designated persons.

Each of the United States has adopted a statute changing the rule of Baker v. Bolton. A majority follow the pattern of Lord Campbell's Act; some merely preserve the cause of action vested in the decedent at the moment of his death and enlarge it to include the damages resulting from his death. "One important difference between the two types of statutes," Prosser says, "may be that where death is instantaneous, or substantially so, there can be no cause of action under the survival acts, since the decedent has had no time to suffer any appreciable damages, and so no cause of action ever has vested in him. This is not, however a necessary conclusion under such statutes; and in any case recovery does not depend upon consciousness of the injured person before his death. The suddenness of death is of course no bar at all to an action under statutes of the Lord Campbell type."⁶

The history of the federal statute is set forth succinctly in St. Louis, Iron Mountain & Southern Railway Company v. Craft, 1915, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160. In 1908 Congress adopted a wrongful death act for railroad employees, 45 U.S.C.A. § 51 et seq. Two years later it added the survival provision, Section 59. The statute provides "for two distinct rights of action based upon altogether different principles, although primarily resting upon the same wrongful act or neglect. It invests the injured employee with a right to such damages as will compensate him for his personal loss and suffering, — a right which arises only where his injuries are not immediately fatal. And where his injuries prove fatal, either immediately or subsequently citations omitted * * * it invests his personal representative, as a trustee for designated relatives, with a right to such damages as will compensate the latter for any pecuniary loss which they sustain by the death." 237 U.S. at 656, 35 S.Ct. at 705, 59 L.Ed. at 1163.

The Craft case involved an issue similar to the one here. The decedent survived his injuries more than a half hour. There was conflicting evidence concerning whether or not he was conscious and was capable of suffering pain, but the jury found that he was, and awarded damages of $11,000 for pain and suffering. This amount, however, was reduced to $5,000 by the Arkansas Supreme Court and the judgment was affirmed. The Court held that there could be a separate recovery for the pain and suffering and that the amount awarded "does seem large," but this involved only a "question of fact * * * not open to reconsideration" by the Supreme Court. 237 U.S. at 661, 35 S.Ct. at 707, 59 L.Ed. at 1165. In reaching its conclusion the Court observed, in a sentence now seized on by the defendant, "* * * that the case is close to the border line, for such pain and suffering as are substantially contemporaneous with death or mere incidents to it, as also the short periods of insensibility which sometimes intervene between fatal injuries and death, afford no basis for a separate estimation or award of damages under the statutes like that which is controlling here." Citations omitted. 237 U.S. at 655, 35 S.Ct. at 705, 59 L.Ed. at 1162.

This was based on such precedents as the statement in The Corsair, 1892, 145 U.S. 335, 348, 12 S.Ct. 949, 953, 36 L.Ed. 727, 731: "Fright for a few minutes is too unsubstantial a basis for separate estimation of damages."⁷

The statutory language does not support these observations. If a seaman fell from the mast into the sea, was rescued a few seconds later after almost drowning, was given artificial respiration, and brought back to consciousness, it would appear certain that he could recover for the fright suffered in the moments when he thought he was falling to his death.⁸ The survivorship statute draws no distinction that would eliminate the cause of action because the decedent's suffering was in fact brief.

There is a full exposition of the reasons why the issue of conscious pain and suffering is uniquely for the jury in Southern Pacific Company v. Heavingham, 9 Cir., 1956, 236 F.2d 406. A railroad brakeman was killed when steam filled the cab that he was riding. The jury was instructed that it should award damages for pain and suffering if there was "an appreciable period of time in which the deceased, not as a mere incident of death or substantially contemporaneous with it, but while he was conscious and as a proximate result of such injury suffered pain, discomfort, fear, anxiety and other physical, mental and emotional stress * * *." 236 F.2d at 408 n. 1. While the court considered the instruction "hardly in line with the language of the dictum in the Craft case," 236 F.2d at 409, it thought that the Supreme Court would not follow that dictum today as a matter of law but would leave the issue to the jury.

Notwithstanding the observation in The Corsair, in Petition of Marina Mercante Nicaraguense, S.A., S.D.N.Y.1965, 248 F.Supp. 15, $1500 damages was allowed for two or three minutes pain and suffering when a tug sank and the decedent drowned. In footnote 34 to his opinion, a copy of which is set forth below,⁹ Judge Weinfeld cited a number of cases in which awards had been made for brief periods of pain and suffering before death. Similarly when a plane suddenly exploded and crashed into the Atlantic Ocean, Judge Weinfeld said, in Noel v. Linea Aeropostal Venezolana, S.D.N.Y.1966, 260 F.Supp. 1002:

"The fact that death came in a matter of minutes, or even less, does not necessarily preclude an award for conscious pain and suffering."¹⁰

Smith v. United States, D.C.Tex.1953, 121 F.Supp. 778, aff'd as to other issues, 5 Cir., 1955, 220 F.2d 548, appears to reach a contrary conclusion. The decedent fell while climbing a 30 foot ladder without a prior injury. In Smith, however, there was no conscious physical suffering during the fall and the court, acting as trier of fact, found that the amount of damages for the mental suffering of falling itself would be speculative.¹¹

Counsel for defendant cite Zych v. Pennsylvania Railroad Company, D.C. Del.1958, 168 F.Supp. 849, where there was a claim for suffering during the few seconds between the time a car and train collided and the time the decedent was thrown from the car against a fence post and died. The court observed,

"Such pain and suffering as he may have experienced in this very brief interval may be ruled out as recoverable damages under the rationale of St. Louis & Iron Mountain Ry. v. Craft, supra. Moreover, there is no evidence of the existence of pain during this very short period so that to a large extent, any estimation of damages would be based on conjecture." 168 F.Supp. at 850.

But then the court denied summary judgment, saying,

"For the reason that the doctor's statement was not under oath, I will deny summary judgment upon the theory that there may be a slight

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