Brooks v. United States
| Decision Date | 15 September 1967 |
| Docket Number | Civ. A. No. 66-514. |
| Parties | Nancy C. BROOKS, as Executrix of the Estate of Ronnie Jayhue Brooks, Deceased, Plaintiff, v. The UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of South Carolina |
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William H. Gibbes (Berry & Gibbes), Columbia, S. C., for plaintiff.
Terrell L. Glenn, U. S. Atty., Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., for defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND OPINION
In this action to recover damages both for wrongful death (Section 10-1951 et seq., Code of South Carolina, 1962) and for pain and suffering (Section 10-209, Code of South Carolina, 1962), filed under the Federal Tort Claims Act, the defendant has conceded that the injuries sustained by the decedent, resulting in the latter's death, were due to the negligence of the defendant's authorized agent. The only issues presented involve the right of the plaintiff to recover for decedent's pain and suffering and the quantum of damages for wrongful death.
In connection with such issues, I make the following findings of fact and conclusions of law:
At the time of his fatal accident, April 20, 1966, the decedent was thirty-three years old, was happily married and the loving father of three children, twins age 10 and the third 5 years of age.
For some ten years prior to his death, he had been employed by the National Cash Register Company, from 1956 as an office clerk and then as service apprentice, since 1960 as a technical service representative, working out of the Columbia, South Carolina branch. As such technical service representative, he serviced the machines sold by that company in the area about Columbia. He was a skilled repairman, with a pleasing personality, well regarded both by his supervisors and his fellow-workers. With commendable interest in his work, he had cultivated and improved his competency and qualifications as a technical repairman. His employer recognized both his improving competency and his devotion to his work. It had taken steps to improve his qualifications by in-service training at its main plant. Actually, at the time of his death, he had been selected for additional in-service training at the headquarters of his employer.
His supervisors in the Columbia branch and his fellow employees expressed the opinion that, based on his qualifications and interest in his work, the decedent should have expected advancement with the Company. The range of possible promotion was outlined in the record. While these follow employees were acquainted with the decedent's qualifications, they, of course, had little or no knowledge or acquaintanceship with the qualifications of others similarly employed in the score of other branches, some larger and some smaller than the Columbia branch, operated by the employer. Moreover, the decedent had been in his classification at the time of his death for some six years, without any promotion or advance in pay, save as there were general wage increases given by the Company. In such classification, he, along with the other employees had received several pay increases in the two years preceding his death. This was in keeping with recent policy of the Company, which, while having no fixed periods of wage adjustments, had followed the custom for the last few years before decedent's accident of giving irregular wage increases. Between April 20, 1966, the date of death of the intestate, and December 21, 1966, for instance, wage increases of 8 per cent were given. These wage increases were paced generally by increases in the cost of living and by inflationary pressures generally.
Over the period of the last five years prior to his death, the yearly earnings of the decedent were:
Total Earnings Regular Time Overtime
1961- $6,360.46 $5,842.94 $517.52
1962- $6,751.85 $6,295.58 $456.27
1963- $7,010.46 $6,534.72 $475.74
1964- $8,108.53 $7,348.20 $760.33
1965- $7,828.93 $7,465.41 $363.52
The overtime pay, it will be noted, fluctuated over these years, representing changes in demand for the Company's product and accordingly for service thereon. Thus, in 1961, overtime represented over 8 per cent of the decedent's annual earnings. On the other hand, in 1965, overtime accounted for about 4½ per cent of such earnings.
Under the employment policy of the National Cash Register Company, non-management employees normally retired at age 68. Upon retirement at such age, he became entitled to pension rights. Such rights of the deceased, if he had remained until 69 in the employment of the Company, by agreement would have been $8,596.90, annually, prior to deduction of income taxes, personal deductions, etc., or discount to present value.
Certain expert testimony was offered on the rate of erosion of "purchasing power of money", on recent rates of increases in wages in the United States, and calculations of present value of various assumed earning bases. Such testimony was based on statistical material taken from official governmental reports, of which judicial notice will be taken.1
The decedent was a well-adjusted individual, who led a very wholesome life. He was a devoted church member and a considerate husband and father. As a result of his mechanical skill, he was particularly helpful about the home.
He was devoted to his children and, from the testimony, gave a great deal of time to them. He took considerable interest in their recreation and often participated in their games. All in all, the testimony makes abundantly clear that he was a devoted and loving father.
The deceased was at the time of his injury in excellent health. For many years he had experienced no serious illness. There was nothing in the record to indicate any ailment that would affect adversely his life expectancy. Without any injurious habits and following a line of work involving no unusual hazards, he had a life expectancy under the South Carolina mortality tables, at the time of his death, of 38 years.
The decedent's injuries were severe and, within a short time, resulted in his death. The defendant argues that, at the time of the accident, the decedent was rendered immediately unconscious. On the other hand, there was considerable testimony that he was heard groaning and uttering on several occasions words indicating pain. He was also observed to move slightly his body as he was being transferred to the ambulance some fifteen or more minutes after the accident. The defendant proffered medical testimony that these movements and the groaning of the decedent may well have been subconscious.
The plaintiff seeks, as I have indicated, recovery both for conscious pain and suffering and wrongful death. The claim for conscious pain and suffering will be first disposed of.
(1) PAIN AND SUFFERING CAUSE OF ACTION
It is settled that recovery under this cause of action can only be had for conscious pain and suffering and the burden of establishing such rests on the plaintiff. Camp v. Petroleum Carrier Corp. (1944), 204 S.C. 133, 139, 28 S.E. 2d 683; Croft v. Hall (1946), 208 S.C. 187, 193, 37 S.E.2d 537; Bowers v. Charleston & W. C. Ry. Co. (1947), 210 S.C. 367, 372-373, 42 S.E.2d 705; Folk v. United States (D.C.S.C.1952), 102 F.Supp. 736, 741; Downing v. Ulmer (D.C.S.C.1966), 253 F.Supp. 694, 698.
The testimony of conscious pain and suffering on the part of the decent is not undisputed. The decedent lived for only about one hour and fifteen minutes after the accident. The fact that he groaned and uttered somewhat indistinct exclamations of pain may well have been subconscious. Compare, Bowers Case, 210 S.C. p. 373, 42 S.E.2d 705. His reaction, when placed on the stretcher, may have been, as the medical testimony indicated, a possible reflex action of the nerve and muscles. However, I am inclined to the opinion and do hereby find that the preponderence of the evidence indicates that the decedent did suffer some conscious pain before his death. It was, though, of short duration. Under such circumstances, a reasonable award under this cause of action would be $3,500.00, for which judgment is allowed.
(2) WRONGFUL DEATH ACTION
The measure of damages in an action for wrongful death under the Federal Tort Claims Act2, arising in the State of South Carolina, is governed by the South Carolina Death Statute3. Hatahley v. United States (1956), 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065; Patrick v. United States (C.C.A. S.C.1963), 316 F.2d 9, 10. By the terms of such statute, "damages * * * proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought" are recoverable4. The elements of the "damages" thus authorized, have been defined as "(1) Pecuniary loss, (2) mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate's society". Mishoe v. Atlantic Coast Line R. Co. (1938), 186 S.C. 402, 419, 197 S.E. 97, 104; Norwood v. A. C. L. R. Co. (1943), 203 S.C. 456, 471, 27 S.E.2d 803; Jennings v. McCowan (1949), 215 S.C. 404, 426, 55 S.E.2d 522, cert. denied Atlantic Coast Line R. Co. v. Jennings, 338 U.S. 956, 70 S.Ct. 494, 94 L.Ed. 590; Gomillion v. Forsythe (1950), 218 S.C. 211, 225, 62 S.E.2d 297, 53 A.L.R.2d 169; Nelson v. Charleston & W. C. Ry. Co. (1957), 231 S.C. 351, 359, 98 S.E.2d 798; Elliott v. Black River Elec. Co-Op. (1958), 233 S.C. 233, 265, 104 S.E.2d 357, 74 A.L.R.2d 907; Greene v. Miller (D.C.S.C.1953), 114 F.Supp. 150, 155; Hardy v. United States (D.C.S.C.1960), 187 F.Supp. 756, 762.5
Of the elements of damages thus specified, only "pecuniary loss" to the beneficiaries lends itself to any rough...
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