Heath v. United States

• Decision Date: 28 July 1949
• Docket Number: Civ. No. 624.
• Citation: 85 F. Supp. 196
• Parties: HEATH v. UNITED STATES.
• Court: U.S. District Court — Northern District of Alabama

85 F. Supp. 196

HEATH v. UNITED STATES.

Civ. No. 624.

United States District Court N. D. Alabama, E. D.

July 28, 1949.

Merrill, Merrill & Vardaman, Anniston, Ala., for plaintiff.

John D. Hill, United States Attorney, W. R. Bradford, Assistant United States Attorney, Birmingham, Ala., for defendant.

LYNNE, District Judge.

When a judge is confronted by a factual situation in which his sense of inherent justice seems to be at war with his appreciation of the applicable law, it behooves him to proceed with more than ordinary caution. Strained construction, the device of the judge who seeks to reconcile legal logic with his individual concept of natural right and wrong, first begets, then multiplies confusion.

On May 8, 1948, in the City of Anniston, Alabama, within this district, Private Frisco Frison, a soldier in the Army of the United States, while driving an ambulance in a convoy of military vehicles and while acting for the defendant within the scope of his office or employment, negligently drove such ambulance onto or against the motor scooter on which Andrew P. Heath, Jr. was riding, thereby proximately causing his instantaneous death. This action to recover damages for such wrongful death was instituted by plaintiff, as administratrix of the estate of said decedent, who invoked the jurisdiction of this court under the provisions of Section 1346, Title 28 U.S. C.A.

The death of plaintiff's intestate having been caused by an act of defendant's agent which occurred within the State of Alabama under circumstances imposing liability upon the defendant, it is clear that plaintiff is entitled to recover actual or compensatory damages, in lieu of punitive damages,¹ to which her recovery would have been confined if her action had been against a private individual and not the United States.²

The Alabama Homicide Act³ is controlling as to the capacity of the party who may maintain a suit for wrongful death and upon the determination of the persons for whose benefit the action is brought. But neither it nor the decisions construing it shed any light upon the issue of recoverable damages. When the Federal Tort Claims Act was amended to provide for the recovery of actual or compensatory damages in death actions based upon acts occurring within the two states whose laws limited recovery to punitive damages, the Congress, sensitive to the inequity resulting from the peculiar provisions of the Alabama and Massachusetts statutes, was required to define the measure of actual or compensatory damages recoverable or to permit the recovery of punitive damages against the sovereign which was expressly proscribed in the original act.⁴

It is quite obvious that the Congress did not elect to relax the bar against the recovery of punitive damages so as to permit their recovery only in actions for wrongful death against the Government caused by acts occurring within these two states. It is equally apparent that the laws of the other forty-six states were considered entirely adequate to deal with the question of actual or compensatory damages in conformity with the express legislative intent to visit liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Sec. 1346(b), Title 28 U.S.C.A.

There is no conceivable basis for an insistence that the amendment purported to establish a new measure of damages applicable to all actions against the United States for wrongful death irrespective of the law of the place where the act or omission occurred. On the contrary, it is crystal clear that the Congress merely substituted actual or compensatory damages for punitive damages, insofar as the laws of Alabama or Massachusetts should obtain, and, in simple, concise and unambiguous language, defined the measure of such substituted damages.

This is a case of novel impression. Reported cases dealing with damages recoverable against the United States for wrongful death are of little help; all were dealing with "the law of the place" which permitted the recovery of compensatory damages.⁵ Therefore, a review of the procession of statutory and decision law, inaugurated by the adoption of Lord Campbell's Act in 1846 (9 & 10 Vict. c. 93), which marked a departure from the classical concept that in an action of tort damages were not recoverable by any one for the death of a human being, Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685, is of more than academic interest.

The impetus provided by Lord Campbell's Act overcame the inertia of both state and federal governments and their legislative bodies were quick to express their dissatisfaction with the archaisms of the law by the enactment of death statutes which embraced the outline, if not the precise details, of their English predecessor. It was inevitable that there should be lack of uniformity in the language employed in the statutes of the several states and the definitive treatment by their courts of the nature and boundaries of the measure of recovery provided thereby.

In the several states the statutes and interpretive decisions fall within two broad categories.⁶ One contemplates a recovery for the pecuniary loss resulting to the estate of the decedent from his death; the other for the ascertainable pecuniary loss sustained by the surviving relatives or dependents of the deceased. While the distinction may involve no difference under the facts of one case, it may be of vital, practical and controlling importance in a factual situation such as is presented in the case at bar.

Plaintiff contends for a construction of the second paragraph of Section 2674, Title 28, U.S.C.A., which would require compensation in this case to be measured by the loss to his estate occasioned by the death of decedent. By way of analogy, she relies upon an extensive quotation from McAdory v. Louisville & N. Railroad Company, 94 Ala. 272, 10 So. 507. I cannot agree. That case arose under the Alabama Employers' Liability Act which concededly has no controlling application here.

It is my opinion that the damages recoverable by plaintiff in this case must be measured by the pecuniary loss which the evidence shows was sustained by the persons for whose benefit this action was brought.

The language of the act involves no uncertainty in this regard. It is strikingly similar to that used in the second section of Lord Campbell's Act,⁷ in obedience to which the English courts have consistently held that compensation must be based on the amount of actual pecuniary benefit which the plaintiffs might reasonably have expected to enjoy had the deceased person not been killed.⁸ It is significantly consistent with the theory of compensation contained in the Federal Employers' Liability Act⁹ which the Supreme Court has said is essentially identical with the first act which ever provided for a cause of action arising out of the death of a human being.¹⁰

That language is clearly repugnant to the construction for which plaintiff must contend. For example, the use of the word "respectively"¹¹ to modify the word "persons," which immediately precedes it is of more than casual significance. Strongly persuasive is the use by the Congress of the plural "pecuniary injuries" in defining the loss for which compensation is recoverable. It indicates that there was contemplated a single recovery for several injuries and is equivalent to the terminology of the statutes and decisions of those jurisdictions which measure the recovery in such actions by the several losses to the surviving relatives of the deceased. If loss to the estate had been intended as the measure of recovery, the use of the plural, where the use of the singular would have been accurate, would have been inapt.

Adverting to the death statutes of the forty-six states which provide for the recovery of compensatory damages¹² it is at once apparent that the language of the Ohio statute¹³ strikingly resembles that of the federal act. The Ohio courts have uniformly held that compensation recoverable under their act is to be measured by the loss to the survivors and not by the loss to the estate.¹⁴

Having decided upon the theory of compensation which should be applied, the court, as the trier of facts, next turns its attention to the intrinsically perplexing task of admeasuring the damages, of which the evidence affords some proof. Logically, there must first be a determination of the persons who may have sustained compensable losses. Stating the proposition in terms of interrogation, for whose benefit was this action brought? As indicated hereinabove, this question may be answered only by resorting to the Alabama Homicide Act, in the first instance. Title 7, Section 123, Code of Alabama, 1940. Permitting the action to be maintained by the personal representative, it provides that the damages recovered therein must be distributed according to the statute of distributions, i. e., as personalty of an estate is distributed.¹⁵

By referring to the Alabama Statutes of Descent and Distribution, and more specifically to Sections 10, 1, and 4 of Title 16, Code of Alabama, 1940, it follows that this action was brought for the benefit only of three grandparents of the decedent.¹⁶

The empirical processes involved in the mensuration of damages at best may achieve but an approximation of the actual loss. In a case of this kind, inflexable formulae are impossible of statement. However, when presented, the problem must be faced and not avoided because of its complexity. From the numerous opinions of courts of other jurisdictions,¹⁷ the expressions of the Supreme Court in cases arising under the Federal Employers' Liability Act¹⁸ and the treatment of the proposition by the Ohio Courts in cases brought under their similar statute,¹⁹ the pattern of the elements of damage, in terms of pecuniary injuries to surviving relatives, gradually...