D'Ambra v. United States, 72-1205.

• Citation: 481 F.2d 14
• Decision Date: 07 June 1973
• Docket Number: No. 72-1205.,72-1205.
• Parties: Joseph A. D'AMBRA et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

481 F.2d 14 (1973)

Joseph A. D'AMBRA et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant.

No. 72-1205.

United States Court of Appeals, First Circuit.

Argued October 5, 1972 and January 3, 1973.

Decided June 7, 1973.

Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on briefs, for defendant, appellant.

Leonard Decof, Providence, R. I., with whom Tobin, Decof, LeRoy & Silverstein, Girard R. Visconti, and Max Wistow, Providence, R. I., were on briefs, for plaintiffs, appellees.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

ALDRICH, Senior Judge.

The United States appealed from a decision of the district court for Rhode Island awarding plaintiffs $118,800. in an action under the Federal Tort Claims Act¹ (FTCA) for the death of their four-year-old son, run over and instantly killed by a mail truck in June 1970. On conflicting evidence the government disputed its liability and challenged the application of the Rhode Island Wrongful Death Act, amended since the accident, as the measure of damages. After the original hearing we concluded that we were satisfied that the finding of liability was supported and that, as the court had ruled, application of the latest amendment was not an instance of impermissible retroactivity, Freeborn v. Smith, 1864, 69 U.S. (2 Wall.) 160, 174-175, 17 L.Ed. 922; Langdeau v. Narragansett Ins. Co., 1963, 96 R.I. 276, 191 A.2d 28, 30-31. We were particularly concerned, however, whether the application of the Rhode Island Act in this case violated the immunity of the United States from liability for punitive damages which was preserved by 28 U. S.C. § 2674, and on this issue set the case down for reargument.

Our question, prompted by its history and consideration of the Act as a whole, is whether Congress intended in a wrongful death case to accept liability over and above compensating the survivors to the extent of their loss; viz., if a state statute so provided, to pay an additional sum computed on some concept of the ultimate value of the estate, which, demonstrably, the survivors would never have received.

Many state statutes, although they may differ in form as to the method of computation and distribution, are, like Lord Campbell's Act, 9 & 10 Vict., c. 93 (1846), the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and the Death on the High Seas Act, 46 U.S.C. § 761 et seq., survivors' acts. Others, of which the Rhode Island act is an example, in varying degrees think of the death in terms of an economic loss to the decedent, and distribute the additional sum so computed as, in effect, a windfall to the selected beneficiaries. "Windfall" may be a crude term, but it is illustrated by the fact that the award will go by escheat to the state under the intestacy laws — in North Carolina to the state university, see Warner v. Western N. C. R. R., 1886, 94 N.C. 250 — if there are no surviving next of kin.² Following the statute, R.I.G.L. § 10-7-1.1, the court, on the basis of tables and expert testimony, determined the deceased child's gross earnings over his lifetime, deducted estimated personal expenses, and discounted the total to a present figure. The deductible expenses, in accordance with the Rhode Island Act, did not include expenses the child would have incurred on account of his anticipated dependents. This was explained by plaintiffs during oral argument on the basis that had decedent survived, his dependents would, in fact, have received these payments, so that they should not be deducted. But quite apart from the fact that the present plaintiffs, his parents, would not have been the hypothesized wife and children to receive such earnings,³ this analysis points up the fact that what plaintiffs call an estate statute does not substitute, for the benefits provided by survivors' statutes, the value of the decedent's estate which might be expected to be accumulated, but results in the receipt of both.⁴

The Rhode Island legislature is free to be generous if it wishes at the expense of individuals negligent enough to cause a death in that state, for in terrorem or other purposes. Our question is whether Congress, in relaxing governmental immunity, accepted such liability.

The FTCA had two parents. The first was the growing conscience of Congress respecting the defense of sovereign immunity. The second was dissatisfaction with the private bill remedy, unfair because of its randomness, and burdensome because of the inappropriateness of the forum. See Report of the Joint Committee on the Organization of Congress to accompany S. 2177, Sen. Rep.No.1400, 79th Cong., 2d Sess. See generally Gottlieb, The Federal Tort Claims Act — A Statutory Interpretation, 35 Geo.L.J. 1 (1946); Note, The Federal Tort Claims Act, 56 Yale L.J. 534 (1947). The solution was a statute which transferred to the courts the duty of determining whether the negligent act was one for which Congress was willing to recompense, and, if so, to determine the damages, again to the extent that Congress was willing to pay. As to acts, there were many exceptions. See, in general, 28 U.S.C. § 2680. These included governmental-type acts, even though there was negligence, 28 U.S.C. § 2680(a); Coastwise Packet Co. v. United States, 1 Cir., 1968, 398 F.2d 77, cert. denied, 393 U.S. 937, 89 S.Ct. 300, 21 L. Ed.2d 274; and, conversely, any act where there was no negligence, even though an individual would have been liable without fault, Laird v. Nelms, 1972, 406 U.S. 797, 92 S.Ct. 1899, 32 L. Ed.2d 499. As to damages, the plaintiff was not to have the right to a trial by jury, 28 U.S.C. § 2402, or to pre-judgment interest or a punitive award. 28 U.S.C. § 2674.⁵

That Congress was concerned with compensating for the negligence of governmental employees is demonstrated by the case of wrongful death in the two states where civil recovery is measured exclusively by the degree of fault, and hence clearly punitive. In such event Congress undertook to compensate the survivors for their pecuniary loss⁶ even though the amount grossly exceeds the recovery permitted by the state against individuals. Massachusetts Bonding & Ins. Co. v. United States, 1956, 352 U.S. 128, 77 S.Ct. 186, 1 L.Ed.2d 189. Did Congress, conversely, intend to do more than compensate the survivors when the state statute so required?

Although by no means conclusive, we look to the Committee Report, and other references, cited in Massachusetts Bonding, 352 U.S. at 131, 77 S.Ct. at 188, making provision for the two states having only punitive statutes,

"Since in those two states compensatory damages are not allowed, all that is required is to amend the Federal Tort Claims Act to say that in such states compensatory damages shall be allowed . . . It is believed that that suggestion would eliminate the discrepancy and would make the settlement of claims in those two states to be exactly in accord with the general rules followed in the other 46 states . . ."

Concededly "exactly" cannot mean "exact," since some states do allow punitive damages, excluded by the previous paragraph of the Act.

With this background we turn to consider what was meant by the term "punitive" in the principal section of the Act, ante n. 5. Punitive damages, whether viewed as "smart money" or as a deterrent, is that part of the award that is not compensatory; the terms are mutually exclusive. See McCormick, Damages § 77 (1935). Thus the Georgia court in Atlantic, Valdosta & W. Ry. Co. v. McDilda, 1906, 125 Ga. 468, 54 S. E. 140, speaking directly to the point, said that its wrongful death statute "is penal in that the measure of the recovery is the full value of the life of the deceased, irrespective of its real value to the person in whom the cause of action is vested." The court went on to hold that the statute was also civil, since this figure included fair compensation to the survivor, and held that the civil, rather than the shorter penal statute of limitations governed. Following this appraisal, the court in Hartz v. United States, 5 Cir., 1969, 415 F.2d 259, refused to apply the Georgia statute in an FTCA case.

Plaintiffs make a number of counter arguments. Their attempted distinction that the state court had declared its statute partially penal cannot be sound. The statute must be judged not by its language, nor the state court's characterization, but by its consequences. The application of the FTCA is a federal question.⁷ Laird v. Helms, ante; Richards v. United States, 1962, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492. Secondly, plaintiffs criticize the Hartz court for failure to realize that under Georgia law a surviving widow is entitled to take in trust for the children. If the court did this, it is of no present relevance. Finally, plaintiffs state that the Rhode Island deductions are larger, and more rational than is the Georgia computation. That is true. It does not, however, change the principle.

Plaintiffs point out that a number of state statutes are, to a considerable degree, similar to the Rhode Island Act, and that no previous court, other then Hartz, has raised this question. It is true that a few courts have applied these statutes, although without apparent consideration, in cases where the decedent was an unmarried minor.⁸ However, in the vast majority of cases, where the decedent had a wife and children the difference, in dollars, to the beneficiaries of so-called estate statutes and straight survivor statutes might not loom so large as to be conspicuous. Even in the case of an unmarried minor, a survivor statute has been held to allow the parents to recover more than what the decedent would have been legally obliged to give them. See, e. g., Louisville & N. R. Co. v. Thomas' Adm'r, 1916, 170 Ky. 145, 185 S.W. 840 (FELA). It must be however, that it is difficult, without engaging in pure speculation, to make an appreciable finding in this respect when the child is so...