Petition of United States, 7305

• Decision Date: 03 November 1969
• Docket Number: No. 7305,7306.,7305
• Citation: 418 F.2d 264
• Parties: Petition of the UNITED STATES of America As Owner Of The UNITED STATES COAST GUARD VESSEL CG-95321, For Exoneration From Or Limitation Of Liability. United States of America, Petitioner, Appellant. David J. Grant, Administrator, Claimant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

418 F.2d 264 (1969)

Petition of the UNITED STATES of America As Owner Of The UNITED STATES COAST GUARD VESSEL CG-95321, For Exoneration From Or Limitation Of Liability.

United States of America, Petitioner, Appellant.

David J. Grant, Administrator, Claimant, Appellant.

Nos. 7305, 7306.

United States Court of Appeals First Circuit.

November 3, 1969.

COPYRIGHT MATERIAL OMITTED

William E. Gwatkin, III, Atty., Dept. of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Herbert F. Travers, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, were on brief, for United States, appellant in No. 7305 and appellee in No. 7306.

Harry Kisloff, Boston, Mass., with whom Morris D. Katz and George J. Dodd, Boston, Mass., were on brief, for Clarence Roberts et al., appellees in No. 7305.

John O. Parker and Ely, Bartlett, Brown & Proctor, Boston, Mass., on brief for the Sandra & Dennis Fishing Corp., appellee in No. 7305.

Harry Kisloff, Boston, Mass., for David J. Grant, Administrator, d/b/n, appellant in No. 7306.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

These are cross appeals from a judgment of the district court which adopted the master's report disposing of death and personal injury claims arising out of the sinking of the F/V BARBARA AND GAIL (B & G) on December 19, 1961.¹ The facts concerning the sinking are set out in our prior opinion in this case, United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir.), cert. denied, 389 U.S. 836, 88 S.Ct. 52, 19 L.Ed.2d 98 (1967).

Two claims are involved here. The government appeals from the court's adoption of the master's award of $85,314 to one Clarence Roberts, a member of the crew of the B & G, who was found to have sustained a severe chronic neurosis as a result of the accident. David Grant, the administrator of the estate of Calvin Roberts, a crew member of the B & G who drowned as a result of the accident, appeals from the denial of his claim on behalf of George Barter, the stepson of Calvin Roberts.

The Roberts Claim

Clarence Roberts was on watch in the pilot house of the B & G when she was towed aground on the Rose and Crown Shoals by the CG-95321 about 1:30 a. m. on December 19, 1961. The B & G was stuck fast to the shoal for thirty to forty minutes and then capsized. Roberts testified that during this interval he was frightened and thought he would die. The ship then rolled to its starboard side, capsizing, and Roberts jumped from the port rail onto the bottom of the hull. There he clung for a moment until a breaker washed him into the sea.

Once in the water, Roberts tried to make his way to the CG-95321. However, the water was so cold that his arms and legs became numb and paralyzed and thereafter he simply drifted, supported by his life jacket. He testified that he was "very scared" and expected to drown.

The seas carried Roberts toward the Coast Guard boat and after some thirty minutes he drifted close to it. A line was thrown to him, but he was too cold to grasp it and a Coast Guardsman jumped into the water and tied another line to him. Roberts was hauled aboard and lost consciousness. When he awoke he found himself wrapped in blankets and his fellow crewmen were rubbing his arms and legs, which had turned blue. After returning to port he was treated by his family doctor for shock and immersion.

From the time of the accident Clarence Roberts was very depressed and emotionally upset. He perspired a great deal and wrung his hands constantly. He talked of suicide, experienced nightmares of the sinking, and complained of knots in his stomach. He was also troubled by pain in his shoulders and numbness in his feet. On the basis of expert psychiatric testimony, the master found that Roberts was:

"suffering from a severe neurosis of an anxiety reaction type with depressive features, * * * that * * is chronic in nature and was caused by the circumstances of the sinking of the B & G and his subsequent immersion and near death at sea. I find further that Clarence Roberts\' condition is permanent and prevents him and will continue to prevent him from working as a fisherman."

The master awarded $31,849 for lost earnings for the period 1962 through 1967; $51,396 for future earning loss; $1,870 for maintenance, medical expenses, loss of personal belongings and his share of the catch; and $10,000 for past and future pain and suffering, making a gross award of $95,115. Against this was set off a prior recovery of $9,801 from the owners of the B & G, making a net award of $85,314.

On oral argument the government conceded the propriety of the $10,000 award for pain and suffering and it does not question the $1,870 item of miscellaneous damages. However, the government argues that the recovery for lost earnings due to Roberts' chronic neurosis is erroneous as a matter of law. Its position is that there is no right of recovery for emotional disturbance which is not the result of a substantial physical injury caused by the defendant's negligence. The claimant, on the other hand, contends that recovery is available irrespective of whether the emotional disturbance is causally related to a substantial, or indeed, to any physical injury. The question, as regards admiralty, appears to be one of first impression.

It has long been the rule that an action does not lie for negligently inflicted emotional disturbance alone. Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825 (1916); Leatherman v. Gateway Transportation Co., 331 F.2d 241 (7th Cir. 1964); Kaufman v. Western Union Telegraph Co., 224 F.2d 723 (5th Cir. 1955), cert. denied, 350 U.S. 947, 76 S.Ct. 321, 100 L.Ed. 825 (1956); Prosser, Torts § 55 (3d ed. 1964); Anno., 64 A.L.R.2d 100 (1959); see Western Union Telegraph Co. v. Speight, 254 U.S. 17, 41 S.Ct. 11, 65 L.Ed. 104 (1920); Chesapeake & Potomac Telephone Co. v. Clay, 90 U.S.App.D.C. 206, 194 F.2d 888 (1952); contra, Sahuc v. United States Fidelity & Guaranty Co., 320 F.2d 18 (5th Cir. 1963). However, it is almost uniformly recognized that recovery may be had for the physical consequences of mental disturbance, at least where there is some contemporaneous physical impact also resulting from defendant's negligence. Hopper v. United States, 244 F.Supp. 314 (D. Colo.1965) (no impact required); Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959) (no impact required); Robb v. Pennsylvania R. R. Co., 210 A.2d 709 (Del.1959) (no impact required); Herrick v. Evening Express Publishing Co., 120 Me. 138, 113 A. 16, 23 A.L.R. 358 (1921) (no impact required); Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933) (no impact required); Spade v. Lynn & Boston Ry. Co., 168 Mass. 285, 47 N.E. 88, 38 L.R.A. 512 (1897) (impact required); Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540 (1930) (no impact required); Falzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965) (no impact required); Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S. 2d 34, 176 N.E.2d 729 (1961) (no impact required); Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958) (impact required); Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202, 9 L.R.A.,N.S., 740 (1907); Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656 (1967) (no impact required); Prosser, Torts § 55, at 350-52 (3d ed. 1964); Restatement (Second) of Torts § 313(1) (1965); Anno., 64 A.L.R.2d supra, at 126-51 (1959). Moreover, the physical impact required by jurisdictions following the impact rule need not be either substantial or causally related to the mental disturbance. See, e. g., Conley v. United Drug Co., 218 Mass. 238, 105 N.E. 975, L.R.A.1915D 830 (1914) (fall due to fainting from fright); Driscoll v. Gaffey, 207 Mass. 102, 92 N.E. 1010 (1910) (fall to floor); Homans v. Boston Elev. Ry. Co., 180 Mass. 456, 62 N.E. 737, 57 L.R.A. 291 (1902) (slight blow); Porter v. Delaware, L. & W. R. R. Co., 73 N.J.L. 405, 63 A. 860 (1906) (dust in eye); Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89 (1948) (electric shock); Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961) (slight impact).

The grounding of the B & G resulted in a substantial jolt to Roberts and he was thrown into the water as the boat capsized. Both these impacts were caused by the negligence of the CG-95321 and were sufficient to satisfy the test applied by jurisdictions following the impact rule. Cf. Petition of Moore-McCormack Lines, Inc., 184 F.Supp. 585, 1962 A.M.C. 1111 (S.D.N.Y.1960), aff'd sub nom., Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 96 A.L.R. 2d 1085, 1962 A.M.C. 804 (2d Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526 (1962). We therefore find it unnecessary to decide whether a contemporaneous physical impact should also be required as a prerequisite to recovery for the physical consequences of mental disturbance in admiralty. Hence, it remains only to consider whether Roberts' psychoneurosis is a "physical" consequence of the fright and mental disturbance occasioned by the grounding and sinking of the B & G.

The term "physical" is not used in its ordinary sense for purposes of applying the "physical consequences" rule. Rather, the word is used to indicate that the condition or illness for which recovery is sought must be one susceptible of objective determination. Hence, a definite nervous disorder is a "physical injury" sufficient to support an action for damages for negligence. Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 249 P.2d 843 (1953); Bowman v. Williams, supra; Savard v. Cody Chevrolet, Inc., supra.

The condition complained of by Roberts was established by the expert testimony of qualified psychiatrists. It is precisely the same as that compensated in Savard. Both are definite nervous disorders and we think that the requirements of the "physical consequences" rule are satisfied here.

This reasoning seems to have been at the root of the court's thinking in Petition of...