Holliday v. Pacific Atlantic SS Co.

• Decision Date: 29 October 1953
• Docket Number: No. 1582.,1582.
• Citation: 117 F. Supp. 729
• Parties: HOLLIDAY v. PACIFIC ATLANTIC S. S. CO.
• Court: U.S. District Court — District of Delaware

117 F. Supp. 729

HOLLIDAY v. PACIFIC ATLANTIC S. S. CO.

No. 1582.

United States District Court D. Delaware.

October 29, 1953.

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Henry A. Wise, Jr., Wilmington, Del., and Abraham E. Freedman, Philadelphia, Pa., for libellant.

William Prickett, Wilmington, Del., and Thomas E. Byrne, Jr., Philadelphia, Pa., for respondent.

RODNEY, District Judge.

This was a libel filed by the widow of Clinton Holliday as his administratrix under the provisions of the Jones Act.¹ There were no children. The action was based upon the death of Clinton Holliday allegedly attributable to the respondent.

The decedent died February 18, 1942. The libel was not filed until January 24, 1945. Discovery process and other causes prevented a hearing until November, 1947. This hearing was had and testimony taken upon the questions of:

(a) alleged negligence of the respondent or the unseaworthiness of the boat as the cause of the traumatic injury which resulted in the death of Holliday;

(b) negligence on the part of respondent in failing to provide reasonable medical care after such injury;

(c) damages recoverable by the libellant if the liability of the respondent was established.

Proceedings to reopen the case, further discovery process, and other matters prevented action by the court until 1951. For none of the delays, so far as it appears, has the court been responsible.

On July 9, 1951 the District Court made its findings and filed its opinion. 99 F.Supp. 173. It found that the charge of unseaworthiness had not been sustained. The District Court held that the respondent was not guilty of failing to provide reasonable medical care. No finding was, of course, made upon the adequate record as to the damages suffered by the libellant. On appeal the United States Court of Appeals for the Third Circuit, in Holliday v. Pacific Atlantic S. S. Co., 197 F.2d 610, 613, on the record as established in the District Court, sustained the finding of the District Court that the evidence did not show the negligence of the respondent or the unseaworthiness of the boat as the cause of the traumatic injury which resulted in death. The Court of Appeals, however, on the record before it and as established in the District Court, felt that the respondent was negligent in failing to provide reasonable and timely medical treatment and concluded that the libellant was entitled to judgment. The judgment of the District Court in favor of the respondent was vacated and the cause remanded with directions to determine the amount of libellant's damage and to enter judgment accordingly.

Thus the matter is in this court to obey the mandate of the Court of Appeals "to determine the amount of libellant's damage and to enter judgment accordingly." The libellant sought to reopen the case as to damages and to take testimony anew upon that subject. The respondent objected and contended that as the record as established would have been sufficient to assess damages if the original trial had resulted in a judgment for libellant, so damages, under the mandate, should be ascertained from that record.

As a matter of convenience to the then attending counsel and witnesses and subject to the objection of the respondent, the additional testimony was taken to be used or not used as the court should subsequently determine.

Two matters are thus presented:

A. In obedience to the mandate of the Court of Appeals to "determine the damages," should such damages be determined upon the record theretofore established or should the testimony be reopened and new evidence admitted?

B. The ascertainment of the damages after determination of the testimony upon which such ascertainment was to be had.

A. From the authorities certain general principles may be called governing the action of the lower court after a remand from an appellate court.²

It seems clear from all the authorities that the mandate from the reviewing court is to be strictly followed within the compass of the mandate. Where the mandate requires something to be done of a final nature, the action of the lower court may be in the manner of a ministerial act of compliance. Where the mandate remands the case to the lower court "with directions" to accomplish a certain act, but without indicating how such act shall be performed, there exists a large measure of discretion in the performance. As said in Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 168, 59 S.Ct. 777, 781, 83 L.Ed. 1184, "While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues."

In the present case and without recognizing any right on the part of the libellant to have additional evidence taken but in the exercise of sound judicial discretion, I have concluded that the additional and supplemental testimony shall be admitted in connection with the testimony heretofore taken. This is largely because there has elapsed the period of over ten years from the time of the fatal occurrence and almost six years from the original trial.

B. Arrival at a just and fair amount of damages in the present case is not to

be had without many difficulties. So many imponderables are presented that the difficulties are increased.

Recovery is sought under the Jones Act.³ Under that Act the personal representative of a seaman may recover for his death as a result of personal injury and statutes regulating the right of action for death in the case of railway employees are made applicable. We are thus remanded to the Federal Employers' Liability Act, 45 U.S.C.A § 51 et seq., relied on by the libellant.

The libellant claims two causes of action: (a) an action under 45 U.S.C.A. § 51; and (b) an action under 45 U.S.C. A. § 59. These will be considered in order.

(a) Under 45 U.S.C.A. § 51 recovery may, in case of death, be had by the personal representative of the deceased for the "benefit" of the widow. It is too clear for discussion that under this section the amount of recovery is based upon and limited by the pecuniary loss sustained by the beneficiary under the section.⁴ In Dow v. Carnegie-Illinois Steel Corp., 165 F.2d 777, 779, the Court of Appeals of this Circuit stated that the "benefit" as mentioned in the Act "is the amount which the jury finds the dead man would have given to his wife * * * had he lived." The earnings of the deceased, as such, are not of primary importance and are considered only as they bear upon the question of pecuniary assistance or contribution rendered by the deceased to the beneficiary.

The amount of pecuniary contribution of the deceased to his then wife and the consequent financial loss to his wife or widow must in turn be divided into two distinct periods. The first period would embrace the time from the death of the deceased to the time of the ascertainment of damages. This is the amount receivable at the present time and based upon the determination of payments from the death to the date of ascertainment of damages, and this would not be subject to the ascertainment of present worth of such sum. The second period would embrace the financial loss the widow would reasonably be expected to suffer in the future based upon reasonable expectancy of life. These losses have not yet occurred and payment now will be subject to further consideration.⁵

The deceased was a cook on the steamer Peter Kerr. At the time of his death his basic pay was $137.50 per month and he was entitled to the benefit of a war-time bonus of almost 100% from a period shortly after World War II started and until the bonus was discontinued by proper authority. The deceased had made an allotment of $65 per month to be paid to his then wife by the steamship authorities from the money due to him. The widow testified at the first trial that the deceased made other payments to her and that his total contributions (allotment and other payments) were not less than $100 per month. This was substantially all of the testimony at the first trial concerning the pecuniary contribution made by the decedent to the beneficiary. At the second trial the widow baldly stated that the deceased gave her 75% of his income. Using this as a basis and with no other evidence of increased pecuniary allotment or payments, the claim is made for 75% of all the greatly increased income from bonus, raise of wages and overtime which the deceased, it is claimed, would have enjoyed had he lived. For this I see no basis either in law or in fact. I am of the opinion that the proven payments should be adopted and the increased income arising from bonus, increased wages and overtime considered in arriving at the probable amount of payments that would have been made by the deceased had he lived. This I have done and, after considering the bonus, increased wages and overtime the deceased might have enjoyed had he lived, I have arrived at a figure which represented the payments that the deceased may reasonably have been presumed to have made to or for his wife. This consideration of bonus, increased wages and overtime very considerably increased the proven amount of contributions.

I have in view of all the circumstances adopted the figure of $150 a month as the reasonable and probable amount in allotments or payments to be made to the widow from the date of death to the date of ascertainment of damages, viz., April 30, 1953, a period of 11 years, 2 months. This amount I have computed at $20,100. To this amount should be added the amount of damages for future support and to this I must give some attention.

The ascertainment of the amount of damages which will compensate the libellant for future loss of pecuniary benefits is beset with many difficulties. "The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased."⁶

The consideration of future pecuniary benefits which might reasonably be expected to have been...