National Airlines, Inc. v. Stiles

• Decision Date: 12 June 1959
• Docket Number: No. 17587.,17587.
• Citation: 268 F.2d 400
• Parties: NATIONAL AIRLINES, INC., Appellant, v. Beryl Whiteman STILES, Appellee. Beryl Whiteman STILES, Appellant, v. NATIONAL AIRLINES, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F.2d 400 (1959)

NATIONAL AIRLINES, INC., Appellant, v. Beryl Whiteman STILES, Appellee.

Beryl Whiteman STILES, Appellant, v. NATIONAL AIRLINES, INC., Appellee.

No. 17587.

United States Court of Appeals Fifth Circuit.

June 12, 1959.

H. Reid DeJarnette, Dixon, DeJarnette, Bradford & Williams, Miami, Fla., William A. Porteous, Jr., Porteous & Johnson, New Orleans, La., John H. Montgomery, Jr., George N. Tompkins, Jr., Condon & Forsyth, New York City, for respondent-appellant.

René H. Himel, Jr., Eberhard P. Deutsch and R. Emmett Kerrigan, New Orleans, La., for libelant-appellant, Deutsch, Kerrigan & Stiles, René H. Himel, Jr., New Orleans, La., of counsel.

Before TUTTLE, CAMERON and WISDOM, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal by National Airlines from a judgment awarded Mrs. Stiles in the sum of $250,000 plus interest from the date of her husband's death in an airplane crash as being excessive as a matter of law, and a cross appeal by the wife on the ground that the record facts demanded, as a matter of law, a substantially greater judgment.

Harry Stiles was a successful New Orleans lawyer whose income from his law partnership averaged $41,800 per year at the time of his death. He lost his life when an airliner of the appellant's fleet was lost under circumstances held by the trial court to be negligent. See Stiles v. National Airlines, Inc., D.C., 161 F.Supp. 125. The holding as to liability is not appealed.

At the time of his death Stiles was 51 years of age. He had a life expectancy of 20.2 years. His wife was younger, and she thus had a longer expectancy.

The action was brought under the Death on the High Seas Act, 46 U.S. C.A. § 761,¹ which has been held to cover death resulting from air accidents over the high seas, Trihey v. Transocean Air Lines, 9 Cir., 255 F.2d 824. It will be noted that the recovery in such a case is expressed as "a fair and just compensation for the pecuniary loss sustained." 46 U.S.C.A. § 762.²

There are two distinct issues presented on this appeal. (1) Did the trial court err as a matter of law in awarding the judgment of $250,000, either because the largely undisputed testimony demanded either a larger or smaller award? (2) Was it legally permissible for the trial court to make an award of interest to run between the date of death and the date of judgment?

We affirm the trial court's judgment on both counts. The trial court considered the question of damages entirely on depositions. Although numerous objections were noted as to the relevance of certain evidence, none was passed on by the trial court on the trial and we consider that there is no question before us as to the propriety of the trial court's considering all of the evidence which had probative value in arriving at its decision.

As to the first question, the dispute is sharply drawn by counsel's respective contentions. The defendant airline says the evidence was clear that at the time of her husband's death Mrs. Stiles was not actually receiving in cash or dollar value for her own exclusive use more than $7,246 per year. (It makes a different computation of $6,746 as an alternative figure.) It says that if the court found that the husband would remain gainfully employed for the rest of his expectancy and could and would continue "to contribute the same annual amount to the defendant for the latter's sole benefit," (emphasis added) the court was required to limit the award to a sum representing this annual contribution for 20.2 years reduced to a present cash value. This figure, it says, could not exceed $108,599.78 if figured at a 3% rate of return, or $99,131.65 at a 4% rate, which it claims should be used.

The plaintiff, on the other hand, says that the record is clear that a maximum of only $17,000 was spent on the average by the husband for business expenses and personal items, leaving $24,800 which is the amount of her annual loss, either because she should share this amount with him during life or it would accumulate and she would receive it on his death. Thus, she says, this sum should be multiplied by 20.2 and discounted at the present cash value. This computation would produce $347,000, using a 3% rate or $339,264, if discounted at 4%. Mrs. Stiles contended further that the opinion evidence (undisputed in the record) that Mr. Stiles's law practice income would have averaged $70,000 per annum had he lived, would increase this amount to a mathematical and legal certainty to $622,685.³

Thus, the defendant claims that the "pecuniary loss sustained" by the wife of a 51 year old lawyer whose earnings at time of death averaged $41,800 and would have by the date of trial four years later been in excess of $70,000 must be restricted to the present cash value of the relatively small amount which he currently gave her as a cash allowance or which she received for her sole benefit for household and like expenditures, plus half of an item of $3,500 estimated by her to be spent by her husband for their clothing, contributions and miscellaneous expenses.

Such a contention would deprive the trial court of the right to give any effect to the community property laws of the state of Louisiana which have the effect of declaring that one half of the husband's current income belongs to the wife. See Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252; Succession of Wiener, 203 La. 649, 14 So.2d 475. It would also deprive the trial court of the right to consider that if Mr. Stiles increased his income he might increase Mrs. Stiles's personal pecuniary enjoyment in such increase either by increasing payments actually made to her, or by expenditures made by him for the benefit of both or by accumulations of excess income over current expenditures. It would, of course, deprive the trial court of the right to consider that such accumulation, both as to her one-half under community property rules, and also of his part as well, might ultimately be inherited by the wife.

The airline especially criticizes the theory that the possibility of an inheritance by Mrs. Stiles of any accumulations during the period of his expectancy may be considered by the trial court as an element in determining the pecuniary loss sustained. Ordinarily common sense, it seems to us, would refute this contention. It is as likely that a wife in these circumstances, who did in fact inherit her husband's entire estate on his untimely death, would continue to be the natural object of his affection and beneficence if he lived out his expectancy and made substantial additional accumulations as that he would continue to give her the kind of support the defendant admits the court could assume would continue. No authoritative decision has been called to our attention and we have found none that holds such consideration to be inappropriate in such an inquiry. We have held in a decision announced today in Martin v. Atlantic Coast Line R. Co., 5 Cir., 268 F.2d 397, an FELA, 45 U.S.C.A. § 51 et seq., case, that on principle this is a proper element to be considered by the trial court in assessing damages. Cf. O'Toole v. United States, 3 Cir., 242 F.2d 308.⁴

Having determined that the likelihood of future earnings, the likelihood of the wife's pecuniary enjoyment of her part of them, and the likelihood that she would also have benefited by her husband's own accumulations of his half of the community income either during life or as his heir or legatee were all properly before the court, it is plain, we think, that we cannot hold on this record that an award of $250,000 was, by law, excessive.

It does not follow, however, that the particular amount of the judgment was demanded by the evidence. Nor, a fortiori, can it be held that a larger sum was, by law, demanded. It is impossible to tell exactly how the trial court arrived at the figure it determined. It is plain, however, that it could consider, but not be bound by, the life expectancy of the decedent, evidence as to the rate of interest to be applied for arriving at a present value; the possibility of Mr. Stiles continuing to practice his profession at an ascending scale financially, or the reverse; the possibility that, with ample other means which appeared from the evidence, and no family other than his wife, he might be content to take an early retirement. There was also the possibility that the wife might not outlive her husband, notwithstanding her younger age, or that he would in fact leave his inheritance by will to his sister or to charity. All of these elements, speculative as they are, the court had the right to consider.⁵

As we have indicated, the trial court did not, in its judgment, make specific mathematical calculations from which it is possible to ascertain which of these circumstances weighed most heavily in its determination of the amount. It is not required to do so, Robey v. Sun Record Co., 5 Cir., 242 F.2d 684. Mrs. Stiles's request that we compute a larger sum and enter a judgment for it does not fall within the powers of this Court, for it is the trial court, not we, which has this function to perform. See Sanders v. Leech, 5 Cir., 158 F.2d 486. On the record before us the trial court could give such weight as it thought appropriate to the many circumstances before it. The parties did not seek by motion below to isolate those parts of the evidence which they now insist could not legally be considered by the trial court.

We repeat what we said in Sanders v. Leech, supra, 158 F.2d at page 488:

"In these circumstances it is not our duty to determine whether, if we were triers, we would have awarded damages in the same, a greater, or a less amount. It is our duty to determine only whether we can say that the amount awarded was so inadequate that it was clearly erroneous, that is unjust. The evidence furnishes no basis for determination that it was."

We turn next to the propriety of the court's allowing interest from the date of the negligent death. The...