Thomas Downie v. United States Lines Co., 359 F.2d 344

Thomas Downie v. United States Lines Co.

359 F.2d 344

3rd Cir.

1966

Check Treatment

*1 See, ual situation. g., e. Natural Gas

Pipeline America, Op. Co. of FPC No. 456-A, (June Rep. 10,626 Fed.Util.Law If 23, 1965). We conclude that the Com power adopting

mission was within its

flow-through for Alabama-Tennessee in proceeding under 4 of Section the Nat Act, though findings ural Gas even Kalodner, Judge, Staley, Chief petitioner order with Judge, Circuit dissented. policy establish a also affect pipeline

other companies. interstate

Petition denied. DOWNIE,

Thomas Appellant,

UNITED STATES CO., Appellee. LINES

No. 15026.

United States Appeals Court of Third Circuit.

Argued Feb.

Reargued 9,1965. Dec. April 1,

Decided *2 Judge. SMITH, Circuit F.

WILLIAM injuries personal action for This is an of33 Mеrchant Marine under section the 688, 1920, which Act U.S.C.A. § by ap- incorporates and makes reference plicable provisions of the Federal Employers’ Liability Act, 45 U.S.C.A. §§ present appeal plain- 51-59. judgment tiff is from entered only in his is- verdict favor. The damages sue one of which must raised is statutes and decided under cited interpreted principles as the common law aрplied and courts. Dice the federal Akron, Co., & C. Y. R. U.S. (1952); 96 L.Ed. 72 S.Ct. Pittsburgh Pennsyl- National Bank v. vania Railroad 315 F.2d (3rd 1963) and therein question pro- cited. The is whether spective curtailment of one’s life ex- pectancy by injury, independent of the economic loss sustained as result curtailment, such is a and dis- tinct item of recoverable in such an action. injury plaintiff,

At time employee defendant, wаs 52 years age normal ex- had a pectancy approximately years. Early morning in the of November ship, suffered while aboard he myocardial infarction, an irreversible injury, nor- heart which shortened his Admittedly expectancy. mal in- by any act or omis- was not caused sion of the defendant. The claim for ground solely was based on the subsequent attack the heart agents defendant’s servants and were Barish, Philadelphia, I. Marvin Pa. guilty negligent ag- conduct (Abraham Freedman, Freedman, E. gravated myocardial infarction. Landy Lorry, Philadelphia, Pa., & There is record from evidence brief), appellant. found, could as it Mount, Philadelphia, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍F. Thomas Pa. apparently did, injury heart (Rawle Henderson, Phidadelphia, Pa., & alleged aggravated, as and that this brief), Hardy, on the Paul D. Philadel- aggravation proximate was the cause of Pa., counsel, appellee. phia, plaintiff’s a further curtailment of the expectancy. Judge, KALODNER, Before Chief McLaughlin, staley, hastie, contended the court GANEY, FREEDMAN, SMITH and Cir- below that diminution Judges. cuit was a plaintiff’s in and of the life ex- of itself and therefore includable diminution pectanсy. motion of of the recoverable On the defendant objection de- modified verdict Over the the trial fendant, pursuant eliminating special re- award written therefrom quest plaintiff, judgment dam- on the verdict issue and entered *3 ages jury on this Lines was submitted modified. Downie v. United States theory. D.C., F.Supp. Company, The 231 192. argues plaintiff that this modification judge jury The trial instructed the error. verdict pertinent part in as follows: contends, plaintiff did here he The plaintiff contends that “Then the below, reduction in court that though the heart attack would have fore- expectancy is in and of it one’s expectancy, shortened his that proper a and therefore self aggravation that he contends he suffered damages. He element the recoverаble it, has for further shortened and that state, cases, no either federal cites period further which it was support have found and we this view damages. shortened he claims primarily plaintiff relies none. The you aggravated, “If so find it was that cases, English and Canadian line pre-existing damage his is the first of was decided in which heart, and that his foreshortened 354, Lovell, A.L.R. Flint v. 1 97 K.B. beyond expectency period of it 815. Therein was held foreshortening from the which resulted shortening expectancy of one’s life unaggravated, you will heart attack then an reason of constitutes your in the total of answer to include damages may be recovered. Question compen- 4 fair and reasonable proved Apparently sat rule has foreshortening satiоn for such further isfactory English have courts expectancy. of life difficulty experienced in its considerable Annotation, application. 131 A.L.R. See “In that I will read affirm 1351-1356; Comments, The Measure plaintiff’s point 12. Life, Damages 22 U. for a Shortened you plaintiff ‘If find 505, (1954). rule 513 Chi.L.Rev. The and that as a re- entitled and modi was modified in later cases negligence sult of the defendant’s recovеry. Ibid. fied amount of limits the plaintiff suffered English cases The doctrine of the novel may you then gain acceptance in the has failed to award a fair rea- country. Thus far courts of this your judgment sonable sum as in best considered state courts which have compensate will him for shorten- rejected it various doctrine have ing expectancy.’ of his life here. reasons are not relevant That I affirm the context of what 223, Fisher, A. Rhone 224 Md. 167 ago.” you just said to moment (1961); Maine-New 2d 773 Ham v. Bridge Authority, Hampshire 92 Inter. issue of was submitted 268, (1943); Erie carefully N.H. 1 30 A .2d Lake inter framed 479, rogatories Johnson, 49, 191 & W. R. Ind. Co. v. as authorized under rule Grady, (1922); Civ.Proc., 133 N.E. Ramsdell 28 732 Fed.Rules U.S.C.A.1 (1903); 319, general Rich 97 Me. 54 A. 763 $86,900, award of made 600, Baker, mond 146 special Gas Co. v. Ind. in the which included a award 2 45 N.E. $25,000 prospective 36 L.R.A. 683 аmount of for the Dennis, July 3 mann v. filed The trial made an effective use Cir., F.2d 978. procedure A use case. similar par could be made of in all but eases special 2. The amount of the award was involving ticularly complicated or interroga- in those specific stated in answer tory. opinion Eich issues. our doubtful See similarly rejected federal courts have fort and inconvenience. These are appli customarily in two cases which involved the items taken into considera- Farrington tion an cation state law. v. Stod award of dard, (1st F.2d 131 A.L.R. 1344 permanent injuries If the 1940); O’Leary Cir. v. United States impairment nature and result Co., F.Supp. (D.Mass. Lines earning capacity, a seaman is enti 1953). impair tled to reimbursement for such analysis comprehensive including, to, A mеnt but not limited ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍probable earnings. be found in Annota loss future Wiles tions, York, Chicago 97 A.L.R. 823-826 and 131 A.L.R. New and St. Louis Fisher, (3rd 1351-1356. Railroad See also Rhone v. 283 F.2d supra. appears 1960), The rule of these cases cert. den. 364 U.S. *4 predicated theory 232, 193; to be on the S.Ct. 5 L.Ed.2d Vickers v. shortening Turney, expectancy per (5th 426, 434, of one’s is 290 F.2d life 435 Cir. damages 1961); se a Corley, of See Tullos v. 337 F.2d personal 884, (6th injury. 1964). Damages an аction for 887 Cir. We be re sulting impairment earning lieve that the is from rule not because of feasible capacity may probable variables incalculable loss of earn ings any attempt place enter into must to a value be measured on of the basis life; expectancy criteria, on injury. absent life some at of workable time damage specula Ibid. upon award would The must be base award be based Although unwilling probable tion. pecuniary we are to loss to reduced adopt per theory present se it does not follow net worth. Conte v. Flota damages Estado, 664, Mercante for the curtailment of one’s Del 277 F.2d 669 (2nd 1960). expectancy, life Cir. on based measurable The rules should same components injury, apрlied where, here, of be as are recover an element permanent able. just injury We believe that a fair and is conse quent result can be achieved curtailment of resort the seaman’s life expectancy. usually applied rules of See on in tort McCormick Dam ages, 86, p. actions. § general injured rule that sea It is the en seaman is also The injured tor again man who has compensation, been to titled based or his em injury, tious conduct of his employer, at time of servants, ployer’s award is to an physical entitled and mental effects engage with the na ability commensurate to in those his injuries. is normally He ture and of his extent activities which contribute enjoyment including, for his loss life, to reimbursement entitled for ex any earnings, рast prospective, Long ample, Dagnello v. avocations. earning capacity, impairment med Company, Island 797 Railroad 289 F.2d expenses (2nd 1961). incur ical incurred and be Mil Cir. v. See Bassett may red, any waukee, 152, he Ry. other economic loss Northern 169 Wis. likely 944, (Sup.Ct.Wis.1919); or is to sustain. have sustained 170 N.W. 945 Tankships, Jersey Bartholomew Universe Kasiski v. Central Power and 1960), Inc., (2nd Light Co., 916 279 F.2d 201 N.J.Misc. 132 A. (Sup.Ct.N.J.1926); Annotаtions, 79 S.Ct. cert. den. 359 U.S. A. addition, specific is en 3 L.Ed.2d 1030. he L.R. 535-543. The elements injury, physical may titled to for his redress into an award of dam enter thereof, including ages necessarily as such effects under this rule must anguish, pain, suffering, depend proofs.3 discom- upon mental no There are Examples provable and, perform customary chores; in- are: elements household dance, bоwl, engage ability inability engage family or swim usual inability activities; recreational similar activities. right and that invasion precise elements which these criteria they properly compensable as a measur- ele- evaluated but damages. pain, suffer- ment as extent to the same able anguish. ing and mental graphically As one text writer foregoing in the discussed rule shortening epitomized it, of life “the paragraph applied in those cases has been through amputation injury involves an con- of the tortious victim which the substance and so absolute and disabling injury, such duct sustains loss.” irremediable disfigurement, limb, amputation of a long courts allowed opin- are of We a brain disorder. recovery expect application justice demands ion that ancy as a and distinct element where, the in- rule a similar Gambling, A.C. Benham v. case, permanent stant an element (1941); 157, 166, 7, 12 Rose 1 All.E.R. disability consequent curtailment is the (1937) ; Ford, A.C. All.E.R. 359 of re- expectancy. The denial Lovell, 97 A.L.R. Flint v. K.B. covery benefits the for this curtailment (1934); Phillips London expense of his victim. feasor at the tort Company, Railway and South Western judge adequately and The trial *5 5 Q.B. 78 (1879). correctly as to the instructed the succinctly English The rule stated right plaintiff to recover eco of the Atkin, Ford, supra, Lord in v. Rose losses, the basis on nomic determined 834): (p. follows immediately expectancy be of his life necessary to “It does not seem to me “aggravation dam of his heart fore the say personal right that a man has a plaintiff’s age.” The issue raised the life, property of in his nature damages, diminu for on the claim based that so when it is he loses expectancy, diminished was submit tion of his life something in of theory. the nature valuable per se ted to the on the * * * property. I am satisfied inadequate in were that instructions injured person that is damnified they fac the various failed to delineate having period cut short dur- might jurors have con tors that ing expecta- a normal just which he had arriving a fair and sidered at enjoying of tion life: and that award. Under circumstances these loss, damnum, being capable is es- of to the must be that the answer assumed money: and timated terms of that interrogatory relating to issue was * * ;* the calculation should be made. predicated speculation. judgment of will the сourt below opinion “I am of that therefore be be reversed and the action will re- living person for can claim ” * * * solely manded for a trial on the new expectation loss of of life. of issue (emphasis supplied) (p. Wright, concurring, Lord said KALODNER, Judge (dissent- Chief 848): ing). legal right his life “A man has a that disagree majority’s with the view by the tortious should not be shortened wrongful shortening one’s life that the expectancy act another. His normal is not value, thing temporal of life is a damages in a Jones Act1 case. something impairment that is so given. opinion láw ac- be am that should .1 * * * right enjoyment, cords a and its “Psychic 1. of One’s Interest in Continuation § 46 U.S.C.A. Life; Legal Recognition Protec- Own tion”, Pennsylvania University Smith, Law Re- Hubert Director Winston University; view, 98, page 781, Institute, note Tulane Yol. Law-Science money Baker, that no “In it is true In Richmond one sense Gas Co. v. compensation can for life Ind. 45 N.E. be 36 L.R.A. 683 enjoyment life, (1897), holding that sense the court’s that impossible compensation to fix is could not recover shortening premised But it is life. her life was specious assumption can do. It be best law would since that give paradoxical person if law refused death could not com- be any compensation plained legal wrong none at all because aas in a civil adequate.” law, could action at be common curtailment of life injury. ap- is not an actionable It English refusing subscribe parent persuaded that the court was majority fed- has cited two doctrine the by precedents resting upon its view sup- court eral and several state authority Bolton, Camp. of Baker v. port. (1808) where it was said: it must With to the state cases “In a civil immediately they court the death of human be with- said being complained could not precedential of as out value since this is a injury.” an applies. Jones Act case and federal law “remedial, for Act is the bene- Jones equally apparent It is (1) сourt protection of who are fit and seamen did not Camp- consider the fact that Lord admiralty. peculiarly Its wards permitted bell’s Act of so- enlarge protection, purpose towas actions, called survival had made obsolete * * * provi- Its to narrow it. holding, (2) Baker Bolton’s * * * sions, liberally con- are to be it did not seem aware fact to attain Arizona struеd that end.” The Phillips court in Anelich, 110, 123, 56 S.Ct. U.S. *6 Railway London and South Western 707, 711, 80 L.Ed. 1075 Company, supra, damages had allowed plaintiff to Farrington cases, for his shortened life. v. Stod federal (1 dard, F.2d 131 1344 115 A.L.R. In Lake R. Erie & W. Co. John- O’Leary 1949) and United ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍States (1922), son, 191 Ind. 133 N.E. 732 (D.Mass. F.Supp. 111 Lines 745 damages where was also that are held 1953) inapposite for rea here these are life, for a shortened the recoverable (1) sons: was action neither case the discussion, court, premised without its by person had whose life instituted the holding on its earlier decision Rich- shortened; wrongfully (2) been neither mond Gas. Act; (3) case was one under the Jones Fisher, Rhone v. 224 Md. A. 167 local in both cases it that the was held (1961), 2d some measure 773 affords state survival and death did not statutes position. majority’s nourishment to the damages, permit to recover estates There, court to to refused subscribe se, per for a shortened life. English doctrine, and ruled that To with what has been said earlier recover, living plaintiff cannot inapplicability of to the the state separate item, damages for a shortened majority by court decisions cited ruling court, is, life. The how may be added: ever, say, by down”, so to its “watered Hampshire In In- judge prop Ham v. Maine-New statement that had the trial Bridge Authority, erly charged they might 92 N.H. terstate “that (1943), Grady, relating 30 A.2d 1 Ramsdell and consider evidence (1903), considering 97 Me. A. 763 actions of life ‘in by were not one whose life had been seriousness of and the con estate, shortened, sequent pain suffering fur- but his and and the men sought ther, recovery anguish, any, plaintiff for was tal neither if to whiсh the independent subjected ele- has will shortened life as been and be ” damages. ment future.’ specifies val- the trial which it In the instant case ascertainable ue, charged properly could but that the fabric and structure total wrong compensate plaintiff for the has no life itself ascertainable shortening of ful value. He as a element of this land have time and The courts from the he later struck erred when jury’s again damages are ruled recoverable $25,000 its allowance verdict enjoyment of life. loss of plaintiff’s life for span. curtailment of the Haynes Ry., In v. Waterville & O. St. reverse with directions would (1906), 101 Me. A. where jury’s to verdict ren reinstate the young boy amputated, the had his hand dered it.3 great court stated that loss took a ruling majority’s thе shorten- enjoyment boy’s pro deal out of ing span se a is not one’s life “ver earning spective loss of * * * power no means the was extent variables because of the incalculable injury. any attempt may into enter King’s In Billiard Co. v. Win- Indiana place a life” in irreconcilable value ters, Ind.App. 110, 106 N.E.2d 713 conflict its simultaneous declara- with fixing (1952), “damages tion for the curtailment injuries personal required con- was expectancy” one’s life' award- plaintiff deprived sider that the ed when “based on measurable com- enjoyment privileges loss of common injury” ponents of such curtail- since men of class. injury”, “permanent ment is a and “the States, F.Supp. recovery Sox v. United denial of curtailment for this (D.Del.1960), the court re- expense allowed benefits the tort feasor at the “deprivation covery normal life ex- of his victim”. (p. pectancy” 469) to an infant components of in- “measurable grievously who was maimed for life in jury” majority “prov- lists as preg- month sixth of her mother’s elements”, opin- able in footnote 3 nancy. ion, “inability dance, bowl, swim Michigan Supreme engage As the Court ac- similar recreatiоnal tivities; inability customary said: perform *7 chores; inability and, household to en- course, aware, that there “We gage family in the usual activities.” say are those who the life of a being value, impossible cannot subscribe to a doctrine which human to is “inability compensation although mightily grapple sanctions dance, to we will engage bowl, horse, swim or similar life of with the value of the a mules, recreational but denies com- of a team of we will aloof activities” stand pensation assign right for the loss of the to where a human is concerned and itself; right enjoy life to com- no value whatever. This kind of ones; panionship right delicacy prevent of loved to would the distribution glorious sunset, starving see the dawn and to food to the because feel hunger sight sickening. gentle But or the in- is so breezes caress problem vigorating sting winds, shirk we cannot this difficult winter to hear coming idling to of valuation. In the the murmur of the brook and birds, warbling our us a life been taken and is smell music can, put duty, fragrance flowers, val we a fair nature’s best the sweet Wycko Gnodtke, 361 uation on it.” and to diet of itself. taste the 118, 122 331, 105 Mich. N.W.2d majority’s The distilled essence rejecting greater doctrine part is than doctrine is that fragments a whole; of life is F.Supp. (E.D.Pa.1964). reported opinion at the District Court

3. The damages, and distinct element of majority ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stead enunciates guidelines instructions a open

which will Pandora’s Box. a One readily appellate

can envision resort when trial in strict

review, ad- majority’s guidelines,

herence fails charge to include in his of “measurable

components injury”, component such right

as, example, the loss of the parent whose life has been shortened upbringing

to share in the of his child

or children. only workable basis of considera-

tion of the issue of value of a shortened span is its submission tо peers one’s as a dam- ages. can be counted on to

bring to bear in its consideration of such

an element the consensus of the common members, of its sense their collective ex-

perience judgment, pano- and their sweep aspects

ramic of all of the issue. only point One need to the fact jury’s

the instant case the award for the 8-year span plaintiff’s shortened $25,000- ap- the amount of — proximately $3,000 year sum mod- —a proportions. erate in its

Judge joins STALEY in this dissent. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍MEYER, INC., al., Petitioners,

FRED et *8 COMMISSION,

FEDERAL TRADE Respondent.

No. 18903. Appeals

United States Court of

Ninth Circuit.

March

Rehearing June Denied