Patrick v. United States

• Decision Date: 01 April 1963
• Docket Number: No. 8832.,8832.
• Parties: Marion J. PATRICK, Administrator of the Estate of Philip Alan Patrick, Deceased, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

316 F.2d 9 (1963)

Marion J. PATRICK, Administrator of the Estate of Philip Alan Patrick, Deceased, Appellee, v. UNITED STATES of America, Appellant.

No. 8832.

United States Court of Appeals Fourth Circuit.

Argued March 27, 1963.

Decided April 1, 1963.

Stephen B. Swartz, Atty., Dept. of Justice (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., John C. Williams, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, on brief), for appellant.

Charles B. Bowen and Benj. A. Bolt, Greenville, S. C. (Bolt & Bowen, Greenville, S. C., on brief), for appellee.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and PREYER, District Judge.

PER CURIAM.

This action for wrongful death was brought under the Federal Tort Claims Act by the Administrator of the Estate of a 3-year-old boy who was struck and killed by a truck of the Post Office Department. The District Court made findings of fact and conclusions of law, on the basis of which it awarded a judgment in favor of the plaintiff for $30,000. It did so after reciting pecuniary loss as one of the elements of damage in an action for wrongful death and referring to the rule that pecuniary loss would be presumed, in the absence of relevant evidence, when the relation between the decedent and the use plaintiff was that of parent and minor child. On this appeal, the Government complains, rightly we think, that pecuniary loss could not be properly considered by the court as an element of the damages.

Since the tort was committed in South Carolina and the action was brought there, the laws of that state are controlling insofar as they are not made inapplicable by specific provisions of the Tort Claims Act.¹

The Supreme Court of South Carolina in Gilliam v. Southern Railway Co., 108 S.C. 195, 93 S.E. 865, declared generally: "When the relation between deceased and the beneficial plaintiff is that of husband and wife or parent and minor child, in the absence of evidence to the contrary, actual pecuniary loss will be presumed from the death." As authority for its declaration, it relied upon Minneapolis & St. Paul Railroad Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995. In Gotschall, the question of a father's pecuniary loss flowing from the death of his child had been submitted to a jury. The Supreme Court approved the submission, since, under Minnesota law, the father was entitled to the earnings of the minor son. The question, said the Supreme Court, was not one of the right to a recovery, but only of the amount of the damages which might properly have been awarded.

While the South Carolina Supreme Court in Gilliam relied upon Gotschall, it was concerned in Gilliam with a case in which the decedent was the parent. Its statement of the rule was framed in terms of that situation. Of course, it is presumed that the dependents of a family breadwinner have suffered pecuniary loss because of his death, but the converse of that proposition does not necessarily follow in this day after the abolition of child labor and the substantial economic emancipation of those minors, approaching majority, who do work.

This situation came before the Supreme Court of South Carolina in a more recent case, Mock v. Atlantic Coast Line Railroad Company, 227 S.C. 245, 87 S.E. 2d 830. In Mock, damages were sought for the benefit of a father because of...