Wyatt v. United States
| Decision Date | 18 April 1979 |
| Docket Number | No. 77-408-CV-W-2.,77-408-CV-W-2. |
| Parties | Robert B. WYATT, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Heywood H. Davis, Dietrich, Davis, Dicus, Rowlands & Schmitt, Kansas City, Mo., for plaintiff.
E. Eugene Harrison, Asst. U. S. Atty., Kansas City, Mo., James P. Piper, Dept. of Justice, Washington, D. C., for defendant.
This is an action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970), in conjunction with the Missouri wrongful death statutes, § 537.080 et seq. (1969), as amended. The Court has jurisdiction over the controversy under the provisions of 28 U.S.C. §§ 1346(b) and 2674. Defendant has stipulated and admitted that the accident in question was due to the negligence of the agents or employees of the United States. Defendant has also stipulated and admitted the amount of property damage involved in the case. (Transcript of September 20, 1978 Hearing, pp. 5-8). Accordingly, the evidence at trial was limited to the question of recoverable wrongful death damages. The issues have been fully briefed. After careful consideration of the proper application of Missouri law, the Court has concluded that plaintiff is entitled to judgment against defendant as follows: (1) $30,395.83 for net damages to plaintiff's real and personal property; (2) $109,087.00 for wrongful death damages because of decedent's funeral expenses and the loss of her Social Security benefits, public school retirement allowance and household services; (3) $111,211.00 for wrongful death damages because of plaintiff's loss of his wife's love, companionship and consortium; and (4) the costs of this action. The following discussion constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.
Plaintiff Robert B. Wyatt was at all pertinent times and is now a citizen of the State of Missouri and a resident of this judicial district. Plaintiff was at all pertinent times the husband of Mildred Wyatt until her death on February 17, 1976. On the morning of February 17, 1976, while making a circling approach to the east of Richards-Gebaur Air Force Base, a United States Air Force T-38 jet aircraft crashed on plaintiff's farm near Grandview, Jackson County, Missouri, impacting plaintiff's residence at 13900 Arrington Road, Grandview, Missouri. The crash killed plaintiff's wife and the men aboard the aircraft. The crash also destroyed a large part of plaintiff's residence and the contents thereof, including two automobiles. The T-38 jet aircraft was owned by defendant, was assigned to the 71st Flying Training Wing at Vance Air Force Base, Oklahoma, and was operated by defendant's agents and employees, acting within the scope of their employment.
On July 30, 1976, plaintiff filed with the Department of the Air Force his written claim for damages in the amount of $297,448.21 for loss of property and the wrongful death of Mildred Wyatt. The agency failed to make a final disposition of the claim within six months after filing and plaintiff timely commenced this action on May 20, 1977.
As a direct result of the jet aircraft crash, plaintiff's real and personal property was damaged in the sum of $92,325.83, but having received insurance benefits in the sum of $61,930.00 plaintiff remains damaged in the net sum of $30,395.83.
At the time of her death, Mildred Wyatt was receiving Social Security benefits in the net amount of $66.10 per month and a Missouri Public School Retirement System allowance in the amount of $353.95 per month. The Court finds from the evidence that the reasonable value of the household services she performed was $457.25 per month.
As a direct result of the jet aircraft crash and Mildred Wyatt's death, plaintiff sustained and will in the future sustain damages in the sum of $109,087.00 comprised of Mildred Wyatt's funeral expenses of $2,399.00 and plaintiff's minimum monetary loss of $106,688.00 consisting of the following three elements: (1) $7,769.00 for the loss of Mildred Wyatt's Social Security benefits computed at $66.10 net per month projected for the duration of plaintiff's 12.2 year life expectancy at a 7.45% annual rate of increase per Social Security actuarial notes, discounted at 8% to its present value, and less 30% for Mildred Wyatt's personal consumption; (2) $29,658.00 for the loss of her retirement allowance computed at $353.95 per month projected for the duration of plaintiff's 12.2 year life expectancy with a 2% annual rate of increase per Missouri statute for the first five years, discounted at 8% to its present value and less 30% for Mildred Wyatt's personal consumption; and (3) $69,261.00 for the loss of Mildred Wyatt's household services computed at $457.25 per month projected for the duration of plaintiff's 12.2 year life expectancy at a 6% annual rate of increase per United States Department of Labor statistics, discounted at 8% to its present value.
As a direct result of the jet aircraft crash and Mildred Wyatt's wrongful death, plaintiff sustained and will sustain in damages in the future because of the loss of her love, companionship and consortium in the sum of $111,211.00, computed at $1000.00 per month projected for the duration of plaintiff's 12.2 year life expectancy, discounted at 8% to its present value. Although the Court has found this last item of damage as a proven fact, the entire dispute in this case is whether such damages are recoverable as a matter of law under the applicable Missouri statutes. Defendant disputed some of the other damage items earlier in the proceedings but has not argued them in its post trial briefs.
Defendant's contention is that consortium and related items of damage are not recoverable under Missouri law because the applicable wrongful death statutes allow recovery only for pecuniary loss. Defendant's argument, of course, assumes that such things as loss of love, companionship and consortium are not pecuniary losses. Plaintiff's position is that the 1973 amendments to the Missouri wrongful death statutes eliminated the pecuniary loss rule in Missouri and that even if the rule is held applicable, a husband's loss of love, companionship and consortium is compensable under the rule.
The law of Missouri on this issue is apparently inconsistent. The loss of comfort and society, which plaintiff has labeled "love, companionship and consortium," is a fact of damage in most wrongful death cases. However, by application of the pecuniary loss rule, recovery for this loss is denied in most cases. Thus, there can be no recovery for loss of comfort and society in an action brought by a child for the death of a parent. Caen v. Feld, 371 S.W.2d 209 (Mo.1963); Patison v. Campbell, 337 S.W.2d 72 (Mo.1960). Similarly, there can be no recovery for loss of comfort and society in an action brought by a parent for the death of a child. Acton v. Shields, 386 S.W.2d 363 (Mo.1965); Bolino v. Illinois Terminal Ry., 355 Mo. 1236, 200 S.W.2d 352 (1947); Oliver v. Morgan, 73 S.W.2d 993 (Mo.1934).
The Missouri courts have held that there can be no recovery for loss of comfort and society in an action brought by a wife for the death of her husband. Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585 (1934); Miller v. Kansas City Ry., 233 S.W. 1066 (Mo.1921); Schaub v. Hannibal & St. J. Ry., 106 Mo. 74, 16 S.W. 924 (1891). It would seem to follow that there could be no recovery for loss of comfort and society in an action brought by a husband for the death of his wife. That logical conclusion, however, does not appear to be the law of Missouri. In Smith v. Simpson, 221 Mo. App. 550, 288 S.W. 69 (1926), the defendants argued on appeal that the trial court had erroneously instructed the jury that in assessing plaintiff's damages they could consider the loss of the "society, companionship, and services of said wife, if any, and that the jury should allow him such a reasonable amount as the jury may find and believe from the evidence will fairly and justly compensate him for the loss of the society, companionship, aid, and services of his said wife." Smith v. Simpson, supra 288 S.W. at 73. With respect to this portion of the instruction, the appellate court stated:
It must be held that the husband is entitled to compensation for the loss of the society and comfort of his wife as against any one negligently depriving him thereof. The question as to the amount of damage was for the jury to determine, under all the facts and circumstances in evidence. Martin v. Ry. Co., (Mo.App.) 227 S.W. 129; Baldwin v. Ry. Co., (Mo. App.) 231 S.W. 280, 282. We decide against defendants on this point.
Smith v. Simpson, supra 288 S.W. at 73.
In Martin v. St. Louis-San Francisco Ry. Co., 227 S.W. 129 (Mo.App.1921), rev'd on other grounds, 289 Mo. 479, 233 S.W. 219 (1921), which was cited with approval by the court in Smith v. Simpson, supra, the contention was made that the damages instruction went beyond the issues raised by the pleadings since the petition did not specifically allege pecuniary loss. Since the jury returned compensatory damages, defendant contended that the verdict was not supported by evidence and that the issue of compensatory damages, i. e., pecuniary loss, had not been pleaded. The court rejected the argument and stated:
However, in the present case the question is presented whether or not the instruction on the measure of damages referred to goes beyond and broadens the issues made by the petition. The petition, of course, alleges that the deceased was the wife of the plaintiff; that she was killed by the alleged negligent and wrongful act of the defendant; and concludes by stating as a fact that plaintiff has on account thereof been damaged in the sum of $10,000. True, the petition contains no direct allegation that the plaintiff lost the services and society of his said wife, which were elements of...
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