Fields v. Huff

• Decision Date: 30 March 1981
• Docket Number: No. H-C-79-34.,H-C-79-34.
• Citation: 510 F. Supp. 238
• Parties: Betty FIELDS, Administratrix of the Estate of Whipple H. Fields, Plaintiff, v. Jerry HUFF, Warren McElroy and T.I.M.E.-DC, Inc., Defendants, Arkansas State Highway Commission, Intervenor.
• Court: U.S. District Court — Eastern District of Arkansas

510 F. Supp. 238

Betty FIELDS, Administratrix of the Estate of Whipple H. Fields, Plaintiff, v. Jerry HUFF, Warren McElroy and T.I.M.E.-DC, Inc., Defendants Arkansas State Highway Commission, Intervenor.

No. H-C-79-34.

United States District Court, E. D. Arkansas, E. D.

March 30, 1981.

Robert J. Donovan, Marianna, Ark., Robert L. Wilson, Little Rock, Ark., for plaintiff.

Winslow Drummond, Wright, Lindsey & Jennings, Boyce Love, Friday, Eldredge & Clark, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

HENRY WOODS, District Judge.

This is a diversity case filed by the administratrix of the Whipple Fields estate on behalf of his estate and children for wrongful death. The evidence was such that an issue was clearly made for punitive damages, if such damages are allowed in a wrongful death action under Arkansas law. The problem is by no means a simple one. In view of the recurrence of the question, we have concluded that a memorandum opinion should be filed in support of our decision to submit this issue to the jury.

The Arkansas Survival and Wrongful Death statutes are now compiled together in Ark.Stat.Ann. §§ 27-901 through 27-909 under a separate chapter heading (Chapter Nine) entitled "Survival of Actions." Only the first sentences of §§ 27-906, 27-908 and 27-909 are pertinent to this case. These are §§ 1, 3 and 4 of Act 255 of the Arkansas Acts of 1957. The purpose of the 1957 act was to include a recovery for mental anguish for designated relatives and to extend recovery to loss of consortium to the wife. It reenacted much earlier survival and wrongful death acts. The original Survival Act was passed in 1838, and the Wrongful Death Act was passed in 1883.¹ In 1899 the husband was given the right to recover for loss of consortium, and this right was extended to the wife in 1957, as noted supra.²

The pertinent portions of Chapter Nine of Title 27 Ark.Stat.Ann. read as follows:

27-906. Wrongful death actions and their survivorship.—Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.

27-908. Beneficiaries.—The beneficiaries herein are the surviving spouse of the deceased person, children, father and mother, brothers and sisters, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.

27-909. Damages and distribution.— The jury, or the Court in cases tried without a jury, may fix such damages as will be fair and just compensation for the pecuniary injuries, including a spouse's loss of the services and companionship of a deceased spouse and/or mental anguish resulting from such death, to the surviving spouse and next of kin of such deceased person.

Section 27-906, Ark.Stat.Ann. is of course a reenactment of the Survival Act and Sections 27-908 and 27-909, Ark.Stat.Ann. are reenactments of Lord Campbell's Act as interpreted by the English courts. At common law, death of the injured person abated any cause of action that he might have maintained.³ This deficiency was cured by the survival acts, which in most jurisdictions were enacted long before the wrongful death acts. The survival acts merely continued in existence, as an asset of the estate, the decedent's own claim for damages.⁴ Not only did the common law deny the decedent's estate a remedy for damages which he might have asserted, if he had survived, but it also denied the spouse and next of kin any right to recover for their own loss.⁵ Lord Campbell's Act was passed to alleviate this harsh rule.⁶ Although the act simply provided that "in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death," the act was given a very restrictive interpretation by the English courts, under which the recovery of the beneficiaries was limited to their "probable pecuniary loss."⁷ The English judicial interpretation was carried over into the language of the American statutes as well as into the American decisions.⁸ The original Arkansas Wrongful Death Act limited recovery "to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person."⁹

As defendants point out, a majority of jurisdictions do not permit the recovery of punitive damages in an action for wrongful death. In a recent summary of the rule in various American jurisdictions, the author lists 33 jurisdictions which deny recovery and 16 which permit recovery.¹⁰ "It was early determined under Lord Campbell's Act that the basis of recovery is the pecuniary loss to the survivors, from which it seems clear that punitive or exemplary damages cannot be allowed in an action for death under that statute. The great majority of states, under statutes which are general in their wording as to damages, construe them to exclude punitive damages." McCormick, Damages § 103 (1935). See also Restatement 2d, Torts § 908, Comment (a)¹¹, and § 925, Comment (c)¹².

A number of jurisdictions which permit recovery have statutes expressly granting the right to punitive damages in a wrongful death action.¹³ Other jurisdictions have based their allowance of recovery on wording in death statutes, which by implication indicate legislative intent to permit recovery of punitive damages.¹⁴

Where the statutes do not expressly permit punitive damages, the courts seem to focus on the term "pecuniary injuries" and similar phraseology.¹⁵ This is understandable in those jurisdictions which have only a wrongful death act modeled on Lord Campbell's Act.¹⁶ Even in such jurisdictions where the wrongful death statute contains the terminology that "such damages may be given as under all the circumstances of the case may be just," recovery of punitive damages has been sustained.¹⁷ However, where there is also a survival act,¹⁸ justification for withholding punitive damages would seem to be wanting. Such a state is California,¹⁹ and its refusal to permit punitive damages has been subject to criticism.²⁰ Florida, which has both a survival and wrongful death act, has reached the opposite result and permitted recovery.²¹ So have Missouri²² and Iowa.²³

The distinction between death actions grounded in wrongful death acts and those grounded in survival acts has been noted by the Court of Appeals of this Circuit. "Since it is apparent that the Iowa statute is of the survival type, we are satisfied that the submission of exemplary damages was proper." Koppinger v. Cullen-Schultz & Associates, 513 F.2d 901 (8th Cir. 1975). The distinction has been made by other courts. In Benson v. Lynch, 404 F.Supp. 8 (D.Del.1975) suit was brought for punitive damage under count I for death of plaintiff's wife, utilizing the Delaware Wrongful Death Act,²⁴ and by another count under the Delaware Survival Act.²⁵ The claim for punitive damages was dismissed under count I because the wrongful death act limited recovery to "pecuniary loss." The claim for punitive damages under the Survival Act was dismissed only because compensatory damages were not established. Under count II the sole claim was for conscious pain and suffering, but the evidence showed that decedent had been instantly killed. In a Pennsylvania diversity death case brought under the Survival Act of that state,²⁶ the court sustained a substantial jury award for punitive damages: "We see no reason to read into the act a limitation on the nature or amount of recovery. Certainly, the legislature was aware that the courts of Pennsylvania recognized punitive damages in an appropriate case, when they passed the act." Hennigan v. Atlantic Refining Co., 282 F.Supp. 667, 683 (E.D.Pa.1967).

Our task is to ascertain and apply Arkansas law. We have concluded that the Arkansas decisions are in accord with those jurisdictions cited supra, which permit recovery of punitive damages in a death action. It is true that the Arkansas decisions as a ratio decidendi have not made the distinction between survival and wrongful death acts, central to resolution of several of the above-cited cases from other jurisdictions. However, the inescapable fact is that the Supreme Court of this state has on a number of occasions put its stamp of approval on the recovery of punitive damages in death cases. There are two recent decisions. In Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962) the defendant killed the husband of his mistress. Decedent's administrator brought a wrongful death action on behalf of his children. Compensatory damages were recovered along with punitive damages in the sum of $25,000. Only a one-sentence comment was made concerning the latter recovery. "The $25,000 award for punitive damages is not specifically attacked, but, even so, the record supports the award made." 235 Ark. 641 at 653, 361 S.W.2d at 531 (emphasis added). While the case does not represent strong authority for plaintiff's position, it certainly cannot be ignored. It seems to us that the italicized phrase can be fairly interpreted to mean that even if the award had been attacked, it would nevertheless have been upheld.

Much more persuasive is the more recent case of Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978). This was an action for wrongful death brought by the administratrices of two persons killed in a highway mishap. Included in the complaint was a claim for punitive damages. The Supreme Court in a unanimous opinion by U. S. District Judge George Howard when he was an Associate Justice of that court held that punitive damages were not recoverable because...