Kozar v. Chesapeake and Ohio Railway Company

• Decision Date: 19 October 1971
• Docket Number: No. 20962.,20962.
• Citation: 449 F.2d 1238
• Parties: Anne P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

449 F.2d 1238 (1971)

Anne P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

No. 20962.

United States Court of Appeals, Sixth Circuit.

October 19, 1971.

William F. Hunting, Jr., Grand Rapids, Mich., for defendant-appellant; Robert A. Straub, Southfield, Mich., Patrick M. Muldoon, Grand Rapids, Mich., on brief.

Stephen C. Bransdorfer, Grand Rapids, Mich., for plaintiff-appellee; James A. Engbers, Henry L. Guikema, Grand Rapids, Mich., on brief.

Before PHILLIPS, Chief Judge, and EDWARDS and BROOKS, Circuit Judges.

BROOKS, Circuit Judge.

This appeal is from a judgment awarding the plaintiff-appellee, Anne P. Kozar, Administratrix of the estate of John P. Kozar, deceased, the sums of $120,045.40 as compensatory damages and $70,000 as punitive damages resulting from the death of her husband, John P. Kozar, while he was working as foreman of a wrecker crew for the defendant-appellant, The Chesapeake and Ohio Railway Company. The action was brought under the Federal Employers' Liability Act, as amended 45 U.S.C. §§ 51-60, and tried to a jury in the United States District Court for the Western District of Michigan, Southern Division.

On February 12, 1968, John Kozar, a long time employee of the railroad, was in charge of a wrecking crew engaged in rerailing a refrigerator car that had gone off the tracks near Holland, Michigan. The derailed car was fifty feet long and weighed approximately 40 tons. It was overturned in a ravine and to rerail it a wrecker crane known as a DK-8 was employed. There were two hoist lines on the crane and the one in use at the time of the accident was controlled by both a hand brake and a foot brake which were operated, as were the other controls, from the cab of the crane by a member of the wrecker crew. When the refrigerator car was being raised from the ravine it was upside down and perpendicular to the tracks. While being raised the roof caught near the tracks leaving the other end of the car suspended ten or twelve feet above the ground. This position required that railroad ties be placed under the car so that it might be pivoted parallel to the tracks before being rerailed. The decedent sent his men to get the railroad ties, and while the crew members were getting them, the suspended car fell on the decedent causing his instant death.

The pleadings of the appellee administratrix base her claims for compensatory damages on the negligence of the appellant railroad in failing to maintain and repair the brake on the DK-8 wrecker crane and her claim for punitive damages upon the willful, wanton or reckless disregard of the appellant for the safety and life of her decedent. The appellant railroad denied negligence, plead contributory negligence and asserted as a matter of law that punitive damages could not be recovered under the Federal Employers' Liability Act. These issues were sharply contested during the jury trial that commenced on March 9th and concluded with a verdict for the appellee on March 25th, 1970. The verdict awarded compensatory damages of $76,545.40 to the widow and infant son for loss of support; $8,000 to the widow for loss of services; $5,000 to the two adult daughters for loss of services; $30,000 to the infant son for loss of services; $500 to the estate for pre-death fright; and $70,000 in punitive damages. We affirm the awards of compensatory damages, except the $5,000 award to the two adult daughters for loss of services, and the $30,000 award to the infant son for loss of services. For the reasons we relate, these two awards are vacated as is the $70,000 award of punitive damages.

The appellant's motion for a new trial alleged more than seventy instances of prejudicial error, substantially all of which are reasserted on appeal, and the "Omnibus Opinion" of the District Court denying the motion for a new trial is ninety-four pages in length, 320 F.Supp. 335 (1970).

We turn to the issues requiring comment.

Punitive Damages

Since we hold that punitive damages are not recoverable under the Federal Employers' Liability Act, no purpose would be served by setting forth the facts upon which the appellee relies to support the $70,000 award.

There are two basic reasons advanced in the "Omnibus Opinion" of the District Court for submitting to the jury, under the usual instructions, the issue of punitive damages. First, it is argued that the legislative history of the Act indicates that it was not its purpose to limit or take away any "remedy" available at common law and at common law punitive damages were available. Second, permitting the recovery of punitive damages advances the objective of the Act to "place such stringent liability upon the railroads for injuries to their employees as to compel the highest safeguarding of the lives and limbs of men in this dangerous employment." We conclude that neither reason is a sound basis for accepting an interpretation of the Act that would permit the unprecedented recovery of punitive damages.

Admittedly, the legislative history of the Act shows that its provisions were not to limit or take away any "remedy" available at common law to an injured employee.¹ But it is a mistake to characterize the right to recover punitive damages at common law a "common law remedy". There is an important distinction between a "remedy" which Bouvier's Law Dictionary defines as "the means employed to enforce a right or redress an injury", and "damages" which are defined as "the indemnity recoverable by a person who has sustained an injury * * * and the term includes not only compensatory, but also exemplary or punitive or vindictive * * * damages." Damages are simply a measure of injury, and to say that at common law there was "punitive damages as a right of action" or there was available "the common law remedy action of punitive damages" or a "punitive damages remedy" is a misuse of the legal terminology. Thus, when the legislative history of the Act is examined and shows that Congress never intended the Act as a restriction on the remedies available to an injured employee, it is not referring to a damages theory. Moreover, the cases cited by the District Court² as examples of early common law cases permitting recovery of punitive damages are distinguishable from the case of a railroad employee or an employee's administrator suing his employer for injuries or death suffered on the job. Most of the cases relied upon by the District Court are cases of intentional torts.

The District Court, in its "Omnibus Opinion", correctly set forth the humanitarian and beneficient reasons for the adoption of the Federal Employers' Liability Act by Congress. However, no matter how persuasive this policy argument may be, it cannot stand as the law in light of the clear, unambiguous statements in the line of Supreme Court authorities holding that damages recoverable under the Act are compensatory only.

In Gulf, Colorado and Santa Fe Railway Company v. McGinnis, 228 U.S. 173, 175-176, 33 S.Ct. 426, 427, 57 L.Ed. 785 (1913), it is stated:

"In a series of cases lately decided by this court, the act in this aspect has been construed as intended only to compensate the surviving relatives of such a deceased employé for the actual pecuniary loss resulting to the particular person or persons for whose benefit an action is given. The recovery must therefore be limited to compensating those relatives for whose benefit the administrator sues as are shown to have sustained some pecuniary loss. Michigan Central Railroad v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417; American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456. In the last cited case, speaking of the Employers\' Liability Act, we said (p. 149, 33 S.Ct. p. 225): `The cause of action which was created in behalf of the injured employé did not survive his death, nor pass to his representatives. But the act, in case of the death of such an employé from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages recoverable are limited to such loss as results to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employé. The damage is limited strictly to the financial loss thus sustained.\'

"The statutory action of an administrator is not for the equal benefit of each of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as show no pecuniary loss." (Emphasis added).

In Michigan Central Railroad Company v. Vreeland, 227 U.S. 59, 68-69, 33 S.Ct. 192, 195, 57 L.Ed. 417 (1913), in commenting upon the type of action created by the Federal Employers' Liability Act and the damages recoverable, the following unequivocal statements are made:

"It is a liability for the loss and damage sustained by relatives dependent upon the decedent. It is therefore a liability for the pecuniary damage resulting to them, and for that only.

"The statute Federal Employers\' Liability Act in giving an action for the benefit of certain members of the family of the decedent, is essentially identical with the first act which ever provided for a cause of action arising out of the death of a human being, — that of 9 and 10 Vict., known as Lord Campbell\'s act.³ This act has been, in its distinguishing features, reenacted in many of the states, and both in the courts of the states and of England has been construed not as operating as a continuance of any right of action which the injured person would have had but for his death, but as a new or independent cause of action for the purpose of

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