Spiller v. Thomas M. Lowe, Jr., and Associates, Inc.

• Decision Date: 14 September 1972
• Docket Number: No. 71-1575.,71-1575.
• Citation: 466 F.2d 903
• Parties: Mrs. Catherine SPILLER, a Widow, as Administratrix of the Estate of L. Roy Spiller, Deceased, and as Next Friend of Jeffrey Spiller, a Minor, et al., Appellees, v. THOMAS M. LOWE, JR., AND ASSOCIATES, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

466 F.2d 903 (1972)

Mrs. Catherine SPILLER, a Widow, as Administratrix of the Estate of L. Roy Spiller, Deceased, and as Next Friend of Jeffrey Spiller, a Minor, et al., Appellees, v. THOMAS M. LOWE, JR., AND ASSOCIATES, INC., Appellant.

No. 71-1575.

United States Court of Appeals, Eighth Circuit.

Submitted April 12, 1972.

Decided September 14, 1972.

Damon Young, Texarkana, Ark., for appellant.

Richard S. Arnold, Texarkana, Ark., for appellees.

Before Mr. Justice CLARK,^* VOGEL and LAY, Circuit Judges.

LAY, Circuit Judge.

The basic questions presented by this appeal are (1) who are the beneficiaries of the newly created federal admiralty right of action for wrongful death and (2) does the right of action for pain and suffering survive the decedent. The district court, the Honorable Paul X Williams sitting in the Western District of Arkansas, Texarkana Division, adopted the state law of Arkansas as the proper schedule of beneficiaries in entering judgments totalling $455,000.¹ 328 F. Supp. 54 (1971). The suit was brought in admiralty and was based on negligence and on the unseaworthiness of the boat in which the decedents were riding. The decedents, L. Roy Spiller, James Louis Dollarhide, John Winston Smith and William Martin Davis, were all drowned when the boat of their employer, Thomas M. Lowe, Jr. and Associates, Inc., capsized and sank on the Red River within the state boundaries of Arkansas. The trial court held that the Red River was an inland navigable stream and that the "vessel" was unseaworthy. The court found no evidence of gross negligence. There is no dispute as to these findings.

The action was brought by the personal representatives of the respective estates and by the surviving wives, children and parents of the decedents. The trial court entered judgments of $15,000 for each of the estates as compensation for the mental anguish of the decedents incurred before their actual deaths. The court likewise entered judgments in favor of the various beneficiaries including, inter alia, the surviving parents of each of the decedents and Antionette Dollarhide, a step-child of the decedent Dollarhide. In doing so the trial court relied on Arkansas law § 27-906 et seq. which entitles the surviving parents and "persons to whom the deceased stood in loco parentis" to recover damages for the wrongful death of a decedent. We affirm the judgment in the district court but for different reasons.

The defendant urges that the district court erred in applying state law since the wrongful death actions are now derived from federal law. Defendant claims the challenged recovery should be denied because no survival statute exists under the Death on the High Seas Act (46 U.S.C.A. §§ 761-768), and applicable federal guidelines in the Jones Act (46 U.S.C.A. § 688) would prevent recovery by the parents and the step-child. Alternatively, the defendant argues that if state law is applicable we should turn to the law of Texas, where the decedent Dollarhide was domiciled, and bar his step-child from any recovery.

The newly founded federal admiralty right of action for wrongful death was first recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L.Ed.2d 339 (1970), overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886). In Moragne the government urged that the schedule of beneficiaries under the general maritime law should conform to the Death on the High Seas Act.² This argument was based primarily on the necessity for uniformity in processing admiralty law. The government believed that borrowing from the law of the relevant "coastal" states would not fully effectuate Congress' preference of beneficiaries.

Justice Harlan, writing the opinion in Moragne, responded:

"We do not determine this issue now, for we think its final resolution should await further sifting through the lower courts in future litigation. For present purposes we conclude only that its existence affords no sufficient reason for not coming to grips with The Harrisburg. If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. The experience thus built up counsels that a suit for wrongful death raises no problems unlike those that have long been grist for the judicial mill." 398 U.S. at 408, 90 S.Ct. at 1792.

The few post-Moragne cases which have arisen in the past two years have generally favored the government's position in Moragne. In Guilbeau v. Calzada, 240 So.2d 104 (La.App.1970), it was decided that the beneficiaries enumerated in the Death on the High Seas Act should recover:

"Uniformity has always been of paramount importance in admiralty matters. Borrowing the schedule of beneficiaries provided in the Death on the High Seas Act for wrongful death actions under general maritime law will in our opinion more nearly accomplish this objective. We, therefore, conclude that it should be applied in this instance." 240 So.2d at 110.

A similar view seems to have been adopted by the District Court for the Eastern District of Michigan which, although not facing a question of beneficiaries, made the broad statement: "The death case . . . is governed by references to, but not by, the Death on the High Seas Act." Smith v. Olsen & Ugelstad, 324 F.Supp. 578, 582 (E.D.Mich. 1971).

The Eastern District of Louisiana in Sennett v. Shell Oil Co., 325 F.Supp. 1 (E.D.La.1971), after finding that a widow and child could not recover under either the Jones Act or the Death on the High Seas Act for the wrongful death of a seaman working on an Ocean Research vessel, held that these Acts did not preclude a remedy under the general maritime law. Despite its findings that the Death on the High Seas Act did not apply, the court had this to say regarding beneficiaries:

"Should there be a conflict between schedule of beneficiaries or the recoverable items of damage under the Moragne right and the Death Act, there is no need to consider here which would control. For there is no showing of conflict in this case." 325 F.Supp. at 8.

In McPherson v. Steamship South African Pioneer, 321 F.Supp. 42 (E.D.Va. 1971), the Eastern District of Virginia decided that in situations where the Jones Act or the Death on the High Seas Act do apply Moragne did not intend to give an alternate remedy, thus beneficiaries in such situations should be only those who are contained in the two federal statutes.

The above decisions mainly disclose that the courts are striving toward uniformity in implementing this new federal cause of action. However, the majority of decisions are concerned with the substantive aspects of the right, the elements of recoverable damage, and defenses.³ In Just v. Chambers, 312 U. S. 383, 392, 61 S.Ct. 687, 693, 85 L.Ed. 903 (1941), the Supreme Court noted: "Uniformity is required only when the essential features of an exclusive federal jurisdiction are involved." Plaintiffs urge here that the basis of liability is clearly the essential feature of this new right of action and that the determination of the beneficiaries is not so much a fundamental element of recovery as an incident of the newly fashioned remedy. Plaintiffs thus argue that the trial court was correct in applying state law since uniformity in determining who should recover does not appear to be an essential requirement.⁴

In the instant case both Arkansas law and the Death on the High Seas Act give a right to the parents to recover in a wrongful death action. The Arkansas statute allows a step-daughter to recover. The Death on the High Seas Act provides recovery for the decedent's "child." The latter Act, as are the statutory schemes of the Jones Act and the Federal Employee's Liability Act, is designed to compensate those beneficiaries who are shown to have suffered some pecuniary loss.

The trial court found that the decedent Dollarhide had "assumed the duty of supporting Antionette to whom he stood in loco parentis." 328 F.Supp. at 63. Defendant's argument that Texas law⁵ (Dollarhide's domicile was in Texas) should be applied misconstrues the nature of the new maritime right for wrongful death. This is not a diversity case where state substantive law must be ascertained and applied. Therefore, we need not become embroiled in a conflict of laws issue.⁶

Here the federal acts, the Death on the High Seas Act as well as the law of Arkansas, provide reasonable analogues to permit recovery for the parents and step-child. Each law seeks to compensate those beneficiaries who are dependent upon the decedent at the time of his death.

Defendant alternatively argues that the Jones Act should be applied thereby precluding recovery by the parents of the decedents by reason of the damages awarded the children and widow. Recovery by the latter class of beneficiaries under the Jones Act preempts recovery by any other class. We reject this reasoning. The Jones Act contains a number of limitations not present in the newly fashioned general maritime remedy. Recovery under the Act is possible only for the deaths of "seamen" and only upon the theory of "negligence" against a limited class of defendants (employers) and then solely for the benefit of a limited class of beneficiaries. The fact that these limitations find no counterpart in the new Moragne remedy is good reason for not selecting the Jones Act's limited beneficiary schedule as the proper analogue.⁷

We turn now to the question of whether the action for the decedent's pain and suffering (mental anguish) survives. At common law the right of action possessed during a person's lifetime did not survive his death. Because of the harshness of the rule most all states have adopted what is generally called a survival statute. Arkansas has done so. See § 27-901...