Gaudet v. Sea-Land Services, Inc., 71-3517.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 463 F.2d 1331
• Docket Number: No. 71-3517.,71-3517.
• Parties: Helen Stein GAUDET, Administratrix of the Estate of Awtrey C. Gaudet, Sr., Plaintiff-Appellant, v. SEA-LAND SERVICES, INC., Defendant-Appellee.
• Decision Date: 24 August 1972

463 F.2d 1331 (1972)

Helen Stein GAUDET, Administratrix of the Estate of Awtrey C. Gaudet, Sr., Plaintiff-Appellant,
v.
SEA-LAND SERVICES, INC., Defendant-Appellee.

No. 71-3517.

United States Court of Appeals, Fifth Circuit.

August 3, 1972.

Rehearing Denied August 24, 1972.

George W. Reese, New Orleans, La., for defendant-appellee.

Stuart A. McClendon, W. Frederick Denkman, Metairie, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

463 F.2d 1332

CLARK, Circuit Judge:

The Albatross inherent in the vagaries and vicissitudes of right and remedy under differing state wrongful death statutes has been lifted from the Mariner's neck. Moragne v. State Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Though the reckoning of the Supreme Court predicts this course will steer the Mariner into "more placid waters," Moragne at 408, 90 S.Ct. at 1792, they are waters which remain uncharted. Today we map at least part of them.

Helen Guadet filed a complaint against Sea-Land Services, Inc. to recover damages for the wrongful death of her husband which allegedly resulted from injuries he had received aboard a Sea-Land vessel. During his lifetime, Mr. Gaudet sought personal recovery for these same injuries. Ten days before his death he obtained a favorable judgment based upon a jury verdict for 175,000 dollars (to be reduced by 20 per cent for contributory negligence). Mrs. Gaudet was substituted for Mr. Gaudet in the action in order to respond to post-trial motions and to answer the appeal. Stein, Widow and Administratrix v. Sea-Land Services, Inc., 440 F.2d 1181 (5th Cir. 1971) 1971. The judgment was subsequently affirmed by this court and was satisfied by payment to Mr. Gaudet's estate. Thereafter Mrs. Gaudet brought the present suit claiming financial losses due her as a result of Mr. Gaudet's death. The court below granted Sea-Land's motion to dismiss on the grounds of res judicata and failure to state a claim upon which relief could be granted. Because we hold that Mrs. Gaudet retained a compensable cause of action for Mr. Gaudet's death wholly apart from and not extinguished by the latter's recovery for his personal injuries, we reverse.

As this suit is one brought in admiralty for wrongful death upon a state's territorial waters (Louisiana), whether or not it should be barred by the decedent's prior recovery is now a question of federal maritime law. Its resolution is part of that "further sifting through the lower courts" envisioned by the Supreme Court in Moragne, 398 U.S. at 408, 90 S.Ct. at 1792, and is a function of our responsibility for fashioning the controlling rules of this newly-created maritime action. Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). Such a role is not novel; admiralty law has for some time been "primarily judge-made law." The Tungus v. Skovgaard, 358 U.S. 588, 611, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959); Fredelos v. Merritt-Chapman & Scott Corporation, 447 F.2d 435, 438-440 (5th Cir. 1971); see Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 226-27 (1934); Note, Maritime Wrongful Death After Moragne: The Seaman's Legal Lifeboat, 59 Geo.L.J. 1411, 1420 (1971). However, we have neither the intention nor the need to weave out of whole cloth a new suit in which to clothe this previously unrecognized cause of action; we have but to piece together the materials that are already available, e. g., the general maritime law, personal-injury cases, state wrongful death statutes, and the Death on the High Seas Act, by a pattern that complements the purposes designed by the Supreme Court in Moragne.

Sea-Land puts forth two basic arguments to support its contention that the maritime wrongful death action ought not be available in this case. It first maintains that Mrs. Gaudet is attempting to recover twice for the same wrongful act; that this is the second identical claim for the same injuries; and that to sustain the claim would permit double recovery. But this is not true. The personal injury and wrongful death suits assert two distinct causes of action designed to compensate for two separate losses—the first for the loss and suffering of the injured while he lived, and the second for the losses to his beneficiaries on account of his death. Baltimore & Ohio S. W. Ry. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566 (1930); Michigan Central Ry. v. Vreeland,

463 F.2d 1333

227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913). Damage elements in the first generally include pain and suffering, medical expenses, and loss of earnings. But the second entails, though it is not always limited to, loss of support, loss of services (including society, care, and attention), loss of love and affection, grief or mental suffering of the survivors, and funeral expenses. See generally, Prosser, Law of Torts, pp. 927-32; Demos, Measure of Damages— Wrongful Death, 60 Ill.B.J. 518 (1972). Quite obviously, the jury verdict recovered by Mr. Gaudet during his lifetime did not include damages done to others by his death which had not yet occurred.¹ As the Supreme Court said in the Carroll case, supra, 280 U.S. at 494, 50 S.Ct. at 183

Although originating in the same wrongful act or neglect, the two claims personal injury and wrongful death are quite distinct, no part of either being embraced in the other. . . . One begins where the other ends, and a recovery upon both in the same action is not a double wrong. . . . St. Louis, Iron M & S Ry. Co. v. Craft, 237 U.S. 648, 658, 35 S. Ct. 704, 706, 59 L.Ed. 1160 (1915).

We intimate nothing as to the possibility of Mrs. Gaudet proving any of the possible damage elements listed above, nor which of them should be includible in this federal maritime action. See 25 Ark.L.Rev. 510 (1972). We note only that some of these elements have already been specifically recognized as compensable, Dennis v. Central Gulf Steamship Corporation, 453 F.2d 137 (5th Cir. 1972); In re Sincere Navigation Corp., 329 F.Supp. 652 (E.D.La.1971), and were not part of Mr. Gaudet's recovery. We conclude, then, that Mrs. Gaudet's suit is not res judicata and such further wrongful death compensation as she might receive will not be part of a twice-told tale.

Sea-Land's second ground for dismissal is more troublesome. Relying upon what all parties concede to be the "majority rule," it is argued that:

. . . where the statute in effect gives a remedy to recover damages where the death of a person is caused by the negligent or wrongful act of another, such remedy depends upon the existence in the decedent, at the time of death, of a right of action to recover damages for such injury; hence, if by a recovery of a judgment for damages due to the injury, or by a settlement with the wrongdoer, the injured person releases his cause of action, such release, in the

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