SEA-LAND SERVICES, INC. v. GAUDET, ADMINISTRATRIX
No. 72-1019
Supreme Court of the United States
Argued November 7, 1973—Decided January 21, 1974
414 U.S. 573
Stuart A. McClendon argued the cause for petitioner. On the brief was Richard L. Greenland.
George W. Reese argued the cause for respondent. With him on the brief was George M. Leppert.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Moragne v. States Marine Lines, 398 U. S. 375 (1970), overruling The Harrisburg, 119 U. S. 199 (1886), held that an action for wrongful death based on unseaworthiness is maintainable under federal maritime law, but left the shaping of the new nonstatutory action to future cases. The question in this case is whether the widow of a longshoreman may maintain such an action for the wrongful death of her husband—alleged to have resulted from injuries suffered by him while aboard a vessel in navigable waters—after the decedent recovered damages in his lifetime for his injuries.
Respondent‘s husband suffered severe injuries while working as a longshoreman aboard petitioner‘s vessel, the S. S. Claiborne, in Louisiana navigable waters. He recovered $140,000 for his permanent disability, physical agony, and loss of earnings in an action based on unseaworthiness,1 but died shortly after the action was terminated. Respondent brought this wrongful-death action in the District Court for the Eastern District of Louisiana for damages suffered by her. Based on her husband‘s recovery, the District Court dismissed the widow‘s suit on grounds of res judicata and failure to state a claim. The Court of Appeals for the Fifth Circuit reversed, holding that Moragne gave “Mrs. Gaudet a compen-
I
The harshness of the Harrisburg rule that in the absence of a statute, there is no maritime action for wrongful death, was only partially relieved by enactment of federal and state wrongful-death statutes.2 The Death
Moragne reflected dissatisfaction with this state of the law that illogically and unjustifiably deprived the dependents of many maritime death victims of an adequate remedy for their losses. Three clearly unjust consequences were of particular concern:
“The first of these is simply the discrepancy produced whenever the rule of The Harrisburg holds sway: within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed.
...
“The second incongruity is that identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile
limit—since a claim under the Death on the High Seas Act may be founded on unseaworthiness, see Kernan v. American Dredging Co., 355 U. S. 426, 430 n. 4 (1958)—but not within the territorial waters of a State whose local statute excludes unseaworthiness claims. ...
“The third, and assertedly the ‘strangest’ anomaly is that a true seaman—that is, a member of a ship‘s company, covered by the Jones Act—is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute (footnote omitted).” 398 U. S., at 395-396.
In overruling The Harrisburg, Moragne ended these anomalies by the creation of a uniform federal cause of action for maritime death, designed to extend to the dependents of maritime wrongful-death victims admiralty‘s “special solicitude for the welfare of those men who under[take] to venture upon hazardous and unpredictable sea voyages.” Id., at 387. Our approach to the resolution of the issue before us must necessarily be consistent with the extension of this “special solicitude” to the dependents of the seafaring decedent.
Petitioner, Sea-Land Services, Inc. (Sea-Land), would attach no significance to this extension in shaping the maritime wrongful-death remedy. It argues that the wrongful-death remedy should recognize no loss independent of the decedent‘s claim for his personal injuries, and therefore that respondent had a wrongful-death remedy only “in the event Gaudet failed to prosecute [his own claim] during his lifetime.” Brief for Petitioner 6. But Moragne had already implicitly rejected that argu-
“repetitious suits involving the same cause of action. [The bar] rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction
has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U. S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, ‘Res Judicata,’ 38 Yale L. J. 299; Restatement of the Law of Judgments, §§ 47, 48.” Commissioner v. Sunnen, 333 U. S. 591, 597 (1948).
To be sure, a majority of courts interpreting state and federal wrongful-death statutes have held that an action for wrongful death is barred by the decedent‘s recovery for injuries during his lifetime. But the bar does not appear to rest in those cases so much upon principles of res judicata or public policy as upon statutory limitations on the wrongful-death action. As one authority has noted, “[t]he fact that all civil remedies for wrongful death derive from statute has important consequences. Since the right was unknown to common law, the legislatures which created the right were free to impose restrictions upon it.” 2 Harper & James § 24.1, p. 1285. Thus, England‘s Lord Campbell‘s Act,6 the first wrongful-death statute, permits recovery “whensoever the Death of a
II
Sea-Land argues that, if dependents are not prevented from bringing a separate cause of action for wrongful death in cases where the decedent has already received a judgment for his personal injuries, then necessarily it
Recovery for loss of support has been universally recognized,11 and includes all the financial contributions
Compensation for loss of society, however, presents a closer question. The term “society” embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.17 Unquestionably, the deprivation of these
A clear majority of States, on the other hand, have rejected such a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society.21 This expansion of damages recoverable under wrongful-death statutes to include loss of society has led one commentator to observe that “[w]hether such damages are classified as ‘pecuniary,’ or recognized and allowed as nonpecuniary, the recent trend is unmistakably in favor of permitting such recovery.” Speiser 218. Thus, our decision to permit recovery for loss of society aligns the
Objection to permitting recovery for loss of society often centers upon the fear that such damages are somewhat speculative and that factfinders will return
“[O]ther courts have recognized that calculation of the loss sustained by dependents or by the estate of the deceased, which is required under most present wrongful-death statutes . . . does not present difficulties more insurmountable than assessment of damages for many nonfatal personal injuries.” 398 U. S., at 385.
For example, juries are often called upon to measure damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium—which encompasses loss of society—in civil actions brought by husbands whose wives have been negligently injured.25
We are confident that the measure of damages for loss of society in a maritime wrongful-death action can “be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.” The City of Panama, 101 U. S. 453, 464 (1880). As in all damages awards for tortious injury, “[i]nsistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience,” Whitaker v. Blidberg Rothchild Co., 296 F. 2d 554, 555 (CA4 1961). Moreover, appellate tribunals have amply demonstrated their ability to control excessive awards, see, e. g., Moore-McCormack Lines, Inc. v. Richardson, 295 F. 2d 583 (CA2 1961); Dugas v. National Aircraft Corp., 438 F. 2d 1386 (CA3 1971).
Turning now to Sea-Land‘s double-liability argument, we note that, in contrast to the elements of damages which we today hold may be recovered in a maritime wrongful-death action, the decedent recovered damages only for his loss of past and future wages, pain and suffering, and medical and incidental expenses. Obviously, the decedent‘s recovery did not include damages for the dependents’ loss of services or of society, and funeral expenses. Indeed, these losses—unique to the decedent‘s
There is, however, an apparent overlap between the decedent‘s recovery for loss of future wages and the dependents’ subsequent claim for support.29 In most instances, the dependents’ support will derive, at least in part, from the decedent‘s wages. But, when a tortfeasor has already fully compensated the decedent, during his lifetime, for his loss of future wages, the tortfeasor should not be required to make further compensation in a subsequent wrongful-death suit for any portion of previously paid wages. Any potential for such double liability can be eliminated by the application of familiar principles of collateral estoppel to preclude a decedent‘s dependents from attempting to relitigate the issue of the support due from the decedent‘s future wages.30
“where the second action between the same parties is upon a different cause or demand . . . . In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but ‘only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.’ Cromwell v. County of Sac, [94 U.S. 351,] 353. And see Russell v. Place, 94 U.S. 606; Southern Pacific R. Co. v. United States, 168 U.S. 1, 48; Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 671. Since the cause of action involved in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and decided at that time. But matters which were actually litigated and determined in the first proceeding cannot later be relitigated.” Commissioner v. Sunnen, 333 U.S., at 597-598.
And while the general rule is that nonparties to the first action are not bound by a judgment or resulting determination of issues, see Blonder-Tongue v. University Foundation, 402 U.S. 313, 320-327 (1971), several exceptions exist. The pertinent exception here is that nonparties may be collaterally estopped from relitigating issues necessarily decided in a suit brought by a party who acts as a fiduciary representative for the beneficial interest of the nonparties.31 In such cases, “the bene
Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury,” 2 Harper & James § 24.6, pp. 1293–1294 (emphasis in original).32 Thus, when a decedent brings his own personal-injury action during his lifetime and recovers damages for his lost wages he acts in a fiduciary capacity to the extent that he represents his dependents’ interest in that portion of his prospective earnings which, but for his wrongful death, they had a reasonable expectation of his providing for their support. Since the decedent‘s recovery of any future wages will normally be dependent upon his fully litigating that issue, we need not fear that applying principles of collateral estoppel to pre
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, dissenting.
The Court today rewrites several areas of the admiralty law of wrongful death. In holding that a wrongful-death action may be brought although the decedent has previously recovered in his own suit based on the same wrongful act, the Court disregards a major body of maritime and state law. The majority opinion also opens up an area of sentimental damages that has not been allowed under traditional admiralty doctrine. It hopes to prevent double recovery through a novel application of collateral estoppel principles, which rests in turn on the unprecedented concept that a seriously injured person acts as a fiduciary for an undefined class of potential beneficiaries with regard to his own recovery in his own personal-injury action. Given the sweep of the majority‘s approach, the upshot in many areas will be a nearly total nullification of the congressional enactments previously governing maritime wrongful death. Except for a technical joinder of counts to obtain a jury trial and thus to maximize the benefits promised by the Court‘s opinion, no one entitled to rely on the admiralty doctrine of unseaworthiness will, after today, seek relief under the federal maritime wrongful-death statutes. Several limitations built into those congressional enactments have been swept aside by the majority‘s decision.
In reaching these results, the majority purports to apply Moragne v. States Marine Lines, 398 U. S.375 (1970). It is true that Moragne overruled The Harrisburg, 119 U. S. 199 (1886), and held that an action for death caused by a violation of maritime duties would lie under the general law of admiralty. But Moragne does not support the Court‘s far-reaching holdings in this case. Indeed, Moragne, which was essentially a response to a gap in maritime remedies for deaths occurring in state territorial waters, explicitly counsels against the sort of tabula rasa restructuring of the law of admiralty undertaken by the majority. Writing for the Court, Mr. Justice Harlan stressed the need to “assure uniform vindication of federal policies. . . .” 398 U. S., at 401. He eschewed “the fashioning of a whole new body of federal law . . . ,” id., at 405, believing that the lower courts would have slight difficulty “in applying accepted maritime law to actions for wrongful death.” Id., at 406. He stated that those courts would find “persuasive analogy for guidance” in the accumulated experiences under the state wrongful-death statutes and the
The Court has now rejected these guidelines so recently laid down in Moragne. Disregarding the source of law endorsed by Moragne, as well as the concern for uniformity expressed in that opinion, the Court has fashioned a new substantive right of recovery in conflict with “accepted maritime law” and a new body of law with regard to the elements of damages recoverable in admiralty wrongful-death actions. In my view, these unprecedented extensions of admiralty law exhibit little deference for stare decisis or, indeed, for enunciated congressional policy. I also believe these new doctrines are unsound as a matter of principle, will create difficulty
I
Long accepted law under the
Kernan, supra, at 439. An uninterrupted line of
Mellon and its progeny hold unequivocally that a judgment, settlement, or similarly conclusive event with regard to the decedent‘s own right to seek recovery for his personal injuries “[precludes] any remedy by the personal representative based upon the same wrongful act.” Mellon, supra, at 344. The Court in Mellon quoted with approval the following language from a state court opinion:
“““Whether the right of action is a transmitted right or an original right, whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed.““” 277 U. S., at 345. (Citation omitted.)
The Mellon rule does not rest on a disagreement in principle with the majority‘s view, ante, at 577-578, that a single wrong is capable of producing separate and distinct injuries, those to the decedent and those to his bene
The Court‘s implication that the
The Court‘s reference in Moragne to the “strong concern for uniformity” in admiralty law, 398 U. S., at 401, often repeated and often related to congressional policies underlying the
Aside from the disunity in the law of admiralty inherent in its opinion, I fail to see how the Court can square
II
The Court in Moragne also counseled the lower courts to draw by analogy from the case law under the state wrongful-death statutes. Id., at 408. Under the great majority of those statutes, whether of survival or true death act character, Mrs. Gaudet‘s cause of action would have been foreclosed by her husband‘s recovery.9
“Although the death statutes create a new cause of action, both they and the survival statutes are dependent upon the rights of the deceased. Hence where no action could have been brought by the deceased had he not been killed, no right of action exists. Likewise a release by the deceased or a judgment either in his favor or, if won on the merits, in favor of the defendant, bars an action after his death. . . .”10
Because of the likelihood of double recovery and the threat to repose inherent in the majority‘s holding, several leading commentators also favor the majority rule under the state wrongful-death statutes.11 This is
III
The
IV
The reasons underlying the extensive state and admiralty precedent contrary to the Court‘s holding that this action may be brought are not difficult to discern. The majority‘s statement that this precedent rests not so much on policy as on “statutory limitations on the wrongful-death action . . . ,” ante, at 579, is erroneous.19 The
The majority‘s position requires it to establish procedures to prevent a double recovery of the elements of damages awarded Gaudet in his own lawsuit. This is no easy task, as “[i]t should be obvious that as yet no satisfactory systematic solution to the whole [double recovery] problem has been found.”20 The Court adopts a collateral estoppel theory, and apparently would implement this by treating the injured seaman as a “fiduciary” for his dependents. Ante, at 593-594. Apart from the utter novelty of this extension of the law of trusts and fiduciary duties, the majority‘s estoppel theory is hardly a “satisfactory solution” to the problem of unfair recoveries.21 Apparently the Court intends to limit the ele-
Mr. Gaudet‘s judgment was given by a jury. It would be unrealistic to assume that that verdict was restricted to an objective measurement of Gaudet‘s lost earnings plus the “value” of his pain and suffering. In all likelihood, Gaudet‘s award reflected an element of the jury‘s concern for a permanently disabled working man. As anyone who has tried jury cases knows, jury sympathy commonly overcomes a theoretical inability to recover for such intangibles as loss of society. If Mrs. Gaudet is then allowed to recover in her subsequent lawsuit the full value, whatever that is, of her loss of love, attention, care, affection, companionship, comfort, and protection, she will be given a second opportunity to benefit from the imprecision built into any award for injuries that cannot be measured objectively. The Gaudet family may well then receive substantially more than just compensation for its injuries.
One expression of jury sympathy is commonplace, despite its conflict with the damages principles that in theory control. But certainly two opportunities for
The Court‘s approval of a second recovery based on the same wrong for which decedent already had recovered, compounded by its rejection of traditional admiralty “pecuniary loss” damage standards, seems particularly inappropriate given the nature of the claim relied on by both Gaudets. The maritime concept of unseaworthiness is not based on fault. The doctrine has evolved into a judicially created form of strict liability.22 When the law imposes absolute liability, it often restricts recovery to damages for those injuries that are clearly ascertainable and susceptible of monetary compensation. E. g., Igneri v. Cie. de Transports Oceaniques, 323 F. 2d 257, 268 (CA2 1963), cert. denied, 376 U. S. 949 (1964). This reflects the impossibility of deterrence and the inappropriateness of punishment in many cases where liability is absolute. The Court has broken with that wise rule of social policy in this case.
There should be strong reasons of policy to justify such repetitive suits and to impose on petitioner the attendant doubling of litigation expenses. The reasons advanced by the majority opinion do not, in my view, approach that level of persuasion. Petitioner has already fully litigated, and paid, a large judgment com
As noted at the outset of this dissent, the Court has written new admiralty law as to the right of survivors to recover for wrongful death and has expanded significantly the elements of damages recoverable. In reaching these results, the majority opinion has discredited, if not in substance overruled, the unanimous decisions of the Court in the Mellon and Flynn cases. In Moragne, a decision on which I believe the majority places a mistaken reliance, the Court emphasized its reluctance to disregard or overrule established precedent:
“Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments. The reasons for rejecting any established rule must always be weighed against these factors.” 398 U. S., at 403.
Mr. Justice Harlan, for the Court, then went on to state with care the reasons for rejecting The Harrisburg
Notes
“At early common law, the personal representative could not be sued for a tort committed by the decedent during his lifetime. From early notions of the untransmittability of blame—and the quasi-criminal nature of early tort law must not be forgotten—to the crystallization of the maxim actio personalis moritur cum persona, the common law was developed without exception, and the rule was uniform that tort actions died with the parties, either wrongdoer or injured party. There was, then, no survival of a right of action either in favor of or against an executor or administrator until statutes modified somewhat the rule of dependability upon the lives of the original parties to the wrong.” F. Harper, Law of Torts 673-674 (1933), quoted in 2 F. Harper & F. James, Law of Torts § 24.1 n. 2 (1956) (hereafter Harper & James). Survival statutes, in one form or another, have been enacted in over one-half the States and supplement the state wrongful-death statutes, see W. Prosser, The Law of Torts § 126, p. 900 (4th ed. 1971) (hereafter Prosser), though in a small number of States the survival statute provides the only death remedy available, see 2 Harper & James § 24.2, p. 1288. The Federal Employers’ Liability Act,
The second such statute, the Death on the High Seas Act, is discussed below. See text, infra, at 599-601 and nn. 4-6.
But see Pickles v. F. Leyland & Co., 10 F. 2d 371 (Mass. 1925). Pickles holds that if the death occurs on land, the High Seas Act is not applicable, even though the injuries ultimately producing death were inflicted at sea. Id., at 372. If this were the correct view, it would be easy to see why cases like the instant one had not previously arisen under the High Seas Act. The Act would simply not allow actions like the present one. However, the Act says “death . . . caused by wrongful act, neglect, or default occurring on the high seas . . . ,” not “death occurring on the high seas.” See n. 4, supra. Pickles, therefore, is probably an erroneous reading of the Act.
“Whereas no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of another Person . . . : Be it therefore enacted . . . That whensoever the Death of a Person shall be caused by wrongful Act,
Section 765 reads: “If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 761 of this title [see n. 4, supra] during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of [pecuniary losses].”
“II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit the Action shall be brought . . . .”
“III. Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint. . . .”
See, e. g., Read v. Great Eastern R. Co., L. R. 3 Q. B. 555, 558, in which the court held:
“The question turns upon the construction of s. 1 of 9 & 10 Vict. (Lord Campbell‘s Act), c. 93. Before that statute the person who received a personal injury, and survived its consequences, could bring an action, and recover damages for the injury; but if he died from its effects, then no action could be brought. To meet this state of the law the 9 & 10 Vict. c. 93, was passed, and ‘whenever the death of a person is caused by a wrongful act, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then . . . the person who would have been liable if death had not ensued shall be liable for an action for damages notwithstanding the death of the
See n. 1, supra.
See, e. g., Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); Melitch v. United R. & E. Co., 121 Md. 457, 88 A. 229 (1913). This interpretation has been by no means universal. A number of courts interpreting Lord Campbell‘s Act-type state wrongful-death statutes have held that a wrongful-death action could be prosecuted even though before his death the decedent could not have brought a cause of action for his personal injuries because he had already recovered a judgment, settled, or released his claims. A classic statement of this view is that of the South Dakota Supreme Court in Rowe v. Richards, 35 S. D. 201, 215-216, 151 N. W. 1001, 1006 (1915):
“We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action—one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife.”
The contrary interpretation of the pertinent statutory language has also been the subject of scholarly criticism. Professor Prosser argues: “It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the
G. Gilmore & C. Black, The Law of Admiralty 308 (1957).
Beyond the common elements that the FELA may share with Lord Campbell‘s Act, express statutory terms peculiar to the FELA lend additional support for the result reached in Mellon v. Goodyear. The Act provides:
“Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee‘s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence . . . of such carrier, or by reason of any defect or insufficiency, due to its negligence . . . .”
The significant language, of course, is the use of the disjunctive “or.” This language was understood by the Court of Appeals for the Fifth Circuit in Seaboard Air Line R. Co. v. Oliver, 261 F. 1, 2 (1919): “The two distinct rights of action are given in the alternative or disjunctively. The language used indicates the absence of an intention to allow recoveries for the same wrong by both the injured employé and, in case of his death, by his personal representative; only one
E. g., Roberts v. Union Carbide Corp., 415 F. 2d 474 (CA3 1969) (New Jersey law); Schlavick v. Manhattan Brewing Co., 103 F. Supp. 744 (ND Ill. 1952) (Indiana law). The cases are reviewed in W. Prosser, The Law of Torts 911-912 (4th ed. 1971) (hereafter Prosser); 2 F. Harper & F. James, The Law of Torts § 24.6 (1956 and Supp. 1968); Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 599, 608-609 (1962) (hereafter Fleming). The latter commentator notes that “[a]t least twenty-three jurisdictions . . . have so held in the clearest terms and some half a dozen more have so indicated in dicta.” Id., at 608-609, n. 38. Nine or 10 contrary jurisdictions constitute a “substantial minority view” according to Prosser 912 and nn. 35-39. However, Prosser notes that this view is “largely confined to jurisdictions which do not allow the decedent to recover for his own curtailed life . . . .” Id., at 912. As the Court points out, ante, at 593-594, the Moragne cause of action is not subject to that limitation.
Significantly, the Death on the High Seas Act,
Restatement of Torts, Explanatory Notes § 925, comment a, p. 639 (1939). This position is repeated almost verbatim in the most recent working draft of the second Restatement. See Restatement (Second) of Torts, Explanatory Notes § 925, comment a, p. 196 (Tent. Draft No. 19, Mar. 30, 1973). See also Restatement of Torts, Explanatory Notes § 926, comment a, p. 646: “[In those states with statutes combining the functions of a death statute and a survival statute] the representatives of the deceased can recover in a single action both for the damages preceding death and for those caused by the death. Even in such States, however, a judgment obtained by the deceased or a release of the cause of action by him terminates the right of action.” Accord, Restatement (Second) of Torts, Explanatory Notes § 926, comment a, p. 204. See also id., Explanatory Notes § 925, comment i, p. 199: “[A] release of his claim by the injured person bars an action after his death for causing the death, as also does a judgment either for, or if on the merits, against him given in an action brought by him for the tort.”
E. g., 2 Harper & James, supra, at 1293-1294: “If . . . deceased recovers before his death, his recovery for permanent injuries will be based, under the prevailing American rule, on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury. Presumably any settlement would reflect the legal liability under this rule. The danger of double recovery becomes clear when it is recalled that any benefits of which the survivors were deprived, by the death, would have come out of these very prospective earnings if deceased had lived. At least in the case of serious and apparently permanent injuries, therefore, there is real danger of double recovery if a wrongful death action is allowed after recovery or release by deceased during his lifetime.” (Emphasis in original; citations omitted.) See id., at n. 14: “[Double recovery] is a ‘theoretical’ as well as a ‘practical’ danger. . . . The prevailing rules . . . seem therefore to be fully justified.” (Citation omitted.) See also Prosser 911: “The courts undoubtedly have been influenced by a fear of double recovery. This is of course possible in point of law, not only under the survival type of death act, but also in any jurisdiction where the decedent would be allowed to recover for the prospective earnings lost through his diminished life expectancy.” (Citations omitted.) The latter appears to have been the measure of Mr. Gaudet‘s recovery in his personal-injury action. 463 F. 2d 1331, 1333 n. 1 (CA5 1972); Tr. of Oral Arg. 20-21.
E. g., Duffey, The Maldistribution of Damages in Wrongful Death, 19 Ohio St. L. J. 264, 273 (1958): In such cases, “[t]he recovery in the wrongful death action based on the decedent‘s future earning capacity is . . . simply a portion or segment of the larger recovery obtained by the injured person himself in the personal injury action.” See n. 11, supra.
Fleming 610. “[The fear of duplication of damages] has force . . . whenever allowance was made for prospective loss of earnings [in the decedent‘s own lawsuit], since this would have drawn on, or depleted, the fund contingently available to satisfy the dependants for loss of their expectancy of support.” This commentator also states that the minority of state courts that do not view decedent recovery as a bar to a subsequent wrongful-death action and that are “content with the bland assertion that no duplication of damages can arise because the release or recovery by the decedent could not have covered the period beyond his death . . .” are relying on a “protestation of faith rather than a conclusion drawn from proven facts . . . .” Id., at 615 (emphasis in original).
I do not address the correctness of the Court‘s holding that Moragne allows the recovery of loss of services, see, e. g., Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 71, 73 (1913), or funeral expenses. Compare Cities Service Oil Co. v. Launey, 403 F. 2d 537, 540 (CA5 1968), with Greene v. Vantage S. S. Corp., 466 F. 2d 159, 167 (CA4 1972).
E. g., Igneri v. Cie. de Transports Oceaniques, 323 F. 2d, at 266 n. 21; Middleton v. Luckenbach S. S. Co., 70 F. 2d 326, 330 (CA2), cert. denied, 293 U.S. 577 (1934). See Dugas v. National Aircraft Corp., 438 F. 2d 1386, 1392 (CA3 1971) (“The amount of recovery under the Death on the High Seas Act is determined by the actual pecuniary loss sustained by the beneficiary due to the wrongful death“).
“When we speak of recovery for the beneficiaries’ mental anguish, we are primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one. This requires a somewhat negative approach. The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the claimants? In other areas of damage, we focus on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc. . . .
“The great majority of jurisdictions, including several which do allow damages for other types of nonpecuniary loss, hold that the grief, bereavement, anxiety, distress, or mental pain and suffering of the beneficiaries may not be regarded as elements of damage in a wrongful death action.” Speiser § 3.45, p. 223 (emphasis in original) (footnotes omitted).
E. g., Igneri v. Cie. de Transports Oceaniques, supra, at 266 (“[I]t is established . . . that the damages recoverable by a seaman‘s widow suing for wrongful death under the Jones Act do not include recovery for loss of consortium“). Cf. Cities Service Oil Co. v. Launey, supra, at 540. See Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 175 (1913); Michigan C. R. Co. v. Vreeland, supra, at 68, 70-71; G. Gilmore & C. Black, The Law of Admiralty 306 (1957): “Recovery under the High Seas Act like that under FELA § 51 [and thus the Jones Act] is based on pecuniary loss to the beneficiaries as a result of the wrongful death. The damage calculation therefore involves an estimate of what the decedent‘s life expectancy would have been, his probable earnings during that period and the amounts he would have contributed to beneficiaries.”
E. g., Simpson v. Knutsen, 444 F. 2d 523 (CA9 1971); Petition of United States Steel Corp., 436 F. 2d 1256, 1279 (CA6 1970), cert. denied, 402 U.S. 987 (1971); In re Cambria S. S. Co., 353 F. Supp. 691, 697-698 (ND Ohio 1973); Green v. Ross, 338 F. Supp. 365, 367 (SD Fla. 1972); Petition of Canal Barge Co., 323 F. Supp. 805, 820-821 (ND Miss. 1971). The state courts of Louisiana, the State where Mr. Gaudet‘s injuries occurred, have reached the same result. Strickland v. Nutt, 264 So. 2d 317, 322 (La. App.), aff‘d sub nom. DeRouen v. Nutt, 262 La. 1123, 266 So. 2d 432 (1972). (“The Moragne case, with the desire for uniformity in maritime death actions announced therein, precludes loss of love and affection as an element of damage here.“) Only one Fifth Circuit case, other than the instant case, and two cases from the United States District Court for the Eastern District of Louisiana have concluded that Moragne signaled a break with settled admiralty wrongful-death damages rules. Dennis v. Central Gulf S. S. Corp., 453 F. 2d 137, cert. denied, 409 U. S. 948 (1972); In re Farrell Lines, Inc., 339 F. Supp. 91 (1971); In re Sincere Navigation Corp., 329 F. Supp. 652 (1971). In the latter case, the court candidly admitted that its decision “may conflict with Moragne‘s goal of uniformity of recovery for all who perish on navigable waters.” Id., at 657.
The majority‘s opinion, apparently in an effort to avoid the force of precedent contrary to its view, contrasts disparagingly these statutes with the more “humane” judge-made rule of Moragne. Ante, at 581-583. But the majority ignores the extent to which the Court in Moragne expressly identified its holding with the policy and principles of the very statutes now criticized: “The policy thus established [by the state and federal wrongful-death statutes] has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.” 398 U. S., at 390-391. And, again: “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.” Id. , at 408. Contrary to the Court‘s intimations, there is no basis for suggesting a tension between these statutes and Moragne. Indeed, it is clear from the Moragne opinion that the Court relied upon the statutes in its analysis, sought only to fill a narrow gap in the law left by them, and considered that the statutes afforded “persuasive analogy for guidance” in developing the Moragne cause of action. Ibid.
Prosser 912 (footnote omitted).
The theory probably creates more problems than it resolves. What are the boundaries of the class of potential beneficiaries who are estopped to relitigate loss of support? If a seriously injured person is the fiduciary for an undefined class of potential beneficiaries, may he be enjoined from wasting his assets or disinheriting members of his family? There will also be some nice questions under the majority‘s approach about whether a particular item of proof at the second trial is to be introduced with regard to the forbidden issue of support or the permissible issue of, say, services.
Moragne v. States Marine Lines, 398 U. S., at 399. Cf., Comment, Maritime Wrongful Death After Moragne: The Seaman‘s Legal Lifeboat, 59 Geo. L. J. 1411 n. 4 (1971).
Stein v. Sea-Land Services, Inc., 440 F. 2d 1181 (CA5 1971). It might be noted that because Gaudet‘s death intervened between the jury verdict and the appeal, his recovery went directly to his estate, not to him personally.
Pet. for Cert. 17.
Although the majority fails to address the point, presumably its result means that Mrs. Gaudet must at least amend her complaint upon remand to the District Court.
wages; it is merely an acknowledgment that the amount of the wage recovery in the first action may have to be clarified in the second. See Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L. Rev. 27, 63-64 (1964); Note, Developments in the Law—Res Judicata, 65 Harv. L. Rev. 818, 855-856 (1952); Restatement of Judgments § 92 (1942) deals expressly with wrongful-death actions and provides that, even in cases where the wrongful-death action is not premised upon the decedent‘s having an extant cause of action for personal injuries at the time of his death, “the rules of res judicata apply in actions brought after his death as to issues litigated in an action brought by him and terminating in a judgment before his death,” id., comment on subsection (1).
This rule appears to have been rejected in England in favor of compensating a personal-injury victim on the basis of his life expectancy after the accident. See Oliver v. Ashman, [1961] 3 W. L. R. 669 (C. A.); Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 600 (1962). Under the English rule, the accident victim is not permitted to recover lost wages for the difference in years between his pre-accident and post-accident life expectancy.