United States v. Harue Hayashi

• Decision Date: 16 August 1960
• Docket Number: No. 16560.,16560.
• Citation: 282 F.2d 599
• Parties: UNITED STATES of America, Appellant, v. HARUE HAYASHI et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.2d 599 (1960)

UNITED STATES of America, Appellant, v. HARUE HAYASHI et al., Appellees.

No. 16560.

United States Court of Appeals Ninth Circuit.

August 16, 1960.

COPYRIGHT MATERIAL OMITTED

Louis B. Blissard, U. S. Atty., Daral C. Conklin, Asst. U. S. Atty., Honolulu, Hawaii, for appellant.

Eugene H. Beebe, Honolulu, Hawaii, Martin Pence, John T. Ushijima, Hilo, Hawaii, for appellees. Smith, Wild, Beebe & Cades, Honolulu, Hawaii, Pence & Ushijima, Hilo, Hawaii, of counsel.

Before MAGRUDER, POPE and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

In this wrongful death action against the United States growing out of a fatal automobile accident, judgment in the sum of $167,505 was entered for Mrs. Hayashi and her five daughters.¹ The United States appeals on the question of damages only. It is contended specifically that there is no foundation in the evidence for some of the awards; that as to one of the awards the amount should have been reduced to take account of social security payments; and that the amount of certain awards should have been reduced to present value.

Appellees have moved to dismiss the appeal. It is their contention that since there was no motion for a new trial the amount of the awards may not be questioned here. Several decisions of the courts of Hawaii, where this action arose and was tried, are cited in support of the motion to dismiss.

The determination of whether an appellant in the United States Court of Appeals has preserved for review the asserted errors upon which he relies is governed by the Federal Rules of Civil Procedure, 28 U.S.C.A., and federal decisional law. Morgan Electric Co. v. Neill, 9 Cir., 198 F.2d 119, 122. In federal practice any question which has been presented to the trial court for a ruling and not thereafter waived or withdrawn is preserved for review.²

All three of the questions pertaining to the damage awards which appellant here seeks to raise were presented during the trial and ruled upon by the trial court. It was therefore not necessary for the appellant to raise those questions again by way of a motion for a new trial in order to preserve them for review in this court. The motion to dismiss the appeal is denied.

As noted above, appellant contends that certain of the awards incorporated in the judgment under review are without foundation in the evidence. The first award so challenged is one which was made to the widow to compensate her for pecuniary loss of support. This award is in the amount of $49,405.

The award in question represents an allowance of $250 a month for the 361 months of decedent's life expectancy reduced to present value on the basis of a formula agreed upon by the parties. Appellant challenges the $250 monthly figure upon which the award is based. It is asserted that there was evidence which would have supported a monthly figure of $307 and other evidence which would have supported a monthly figure of $235. It is pointed out, however, that there was no evidence which suggests the precise figure of $250 as the proper monthly amount. Hence, appellant argues, it was error for the court to fix upon that figure as a basis for this particular lump sum award.

It is the function of the fact finder to evaluate all the evidence produced on the question of damages. On a damage item of this kind the selection of an award figure lying within the upper and lower reaches of the evidence represents a proper exercise of that function. In any event appellant is not aggrieved by the action of the trial court in limiting the award to a figure less than it concedes to be supportable under the evidence.

Other awards which according to appellant are without foundation in the evidence are those which were made to the five daughters of decedent for "loss of love, care, affection and guidance" of their father. These awards ranged from $3,600 for the oldest child to $14,600 for the youngest. They were made on the basis of $100 per month computed from the date of their father's death to their respective eighteenth birthdays.

Appellant points out that only two witnesses gave testimony relating to the loss of this kind sustained by the children. Their mother testified that her husband was "kind" to the children and took "good care" of them, but that when they got "naughty" he would "put his foot down." She also testified that the children loved and respected their father, but that they would not "talk back" to him because they were "scared," or because he was "firm." The other such witness was Ruth, the oldest of the five daughters. She testified that her father was "kind," that he took them on "outings," and that she loved her father.

Appellant concedes that this evidence is sufficient to sustain the award as to Ruth, who testified. As to the four daughters who did not testify, however, appellant contends that the testimony was insufficient to support the awards on a like basis which were made to them. Appellant argues: "Certainly, the measure of loss is not what the wife may think of the relationship between her husband and her children — the measure of loss is subjectively dependent upon what each child in turn thinks. And the record is silent in this respect." Thus disposing of the mother's testimony and limiting that of Ruth, appellant contends that there was no showing that would support the awards made to the other four daughters.

On this reasoning a child of one or two years of age could never obtain such an award because he or she would be unable to testify as to the relationship with his or her father.

Appellant here acknowledges that the evidence is sufficient to support an award to Ruth based on a loss of $100 a month. There is nothing in the testimony to indicate that Ruth's relationship with her father was any different than that of her four sisters. On the contrary, the inference to be drawn from the testimony of the mother, which has probative value on the subject, is that they were all treated alike. But even in the absence of such an inference the court would be entitled to take judicial notice of the fact that in the normal family the father has equal love and affection for all of his children and provides equal care, guidance, discipline and support.

In our view the awards referred to above are amply supported by the evidence.

In its reply brief appellant questions for the first time the sufficiency of the evidence to support the award of $72,200 to Mrs. Hayashi for loss of consortium. Mrs. Hayashi suffers from a personal disability which made it necessary for her husband to give her a great deal of special care and attention. In our opinion the evidence was sufficient to support this award.

Appellant argues that the trial court erred in failing to reduce the award to Mrs. Hayashi for pecuniary loss of support by the amount of the social security payments received and to be received by her as a result of her husband's death.

Mrs. Hayashi was awarded $49,405 as her pecuniary loss due to the death of her husband. Since his death and by reason thereof Mrs. Hayashi has received and will continue to receive "mother's insurance benefits" under section 202(g) of the Social Security Act, as amended, 42 U.S.C.A. § 402(g), as indicated in the margin.³

The Federal Tort Claims Act, 28 U.S.C.A. § 2674, limits the award for damages to that which is compensatory in nature. Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 77 S. Ct. 186, 1 L.Ed.2d 189.⁴ In applying this principle it has been held in effect that where the injured person is receiving injury-related benefits payable from unfunded general revenues such benefits are to be deducted from any federal tort claims award. The theory is that to the extent of such benefits compensation is already being made from the same unfunded source drawn upon in paying the federal tort claims award.

Thus, where the Veterans Administration has paid the hospital expenses incurred in connection with the injury no award is to be made therefor in a federal tort claims action.⁵ Likewise, where disability benefits have been paid under the Veterans Act an award against the government in a Federal Tort Claims Act case is to be reduced by the amount of such benefits.⁶ In each case the benefits are paid from unfunded general tax monies appropriated for the purpose, the same source from which appropriations are made for the purpose of paying federal tort claims awards.

On the other hand, where the injured person has received benefits for the injuries under a National Service Life Insurance policy (United States v. Brooks, supra, 176 F.2d at page 485), or under the Civil Service Retirement Act of 1956, 5 U.S.C.A. § 2251 et seq. (Price v. United States, D.C.E.D.Va, 179 F.Supp. 309), the award made in a federal tort claims case is not to be reduced by the amount of such benefits. These benefits are not paid from unfunded general revenues but from a special fund supplied in part by the beneficiary or a relative upon whom the beneficiary is dependent.

The "mother's insurance benefits" being paid to Mrs. Hayashi under the Social Security Act are not paid from unfunded general revenues. They are paid from the Federal Old-Age and Survivors Insurance Trust Fund created on the books of the Treasury of the United States pursuant to section 201(a) of the Social Security Act, 42 U.S.C.A. § 401(a). The money which goes into this fund is provided by a system of excise taxes on employers and income taxes on employees, designed to be actuarially sound and self-supporting.⁷ Thus, as in the case of National Service Life Insurance or Civil Service Retirement System benefits, those which Mrs. Hayashi receives are paid from a special fund supplied in part by her husband upon whom she was dependent.

It is true that benefits paid under a National Life Insurance policy are contractual, and benefits paid under the Civil Service Retirement Act of 1956 are vested. The benefits being paid to Mrs. Hayashi, on...