UNITED STATES of America, Defendant, Appellant, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY et al., Plaintiffs, Appellees, 227 F.2d 385

MAGRUDER, Chief Judge. A complaint under the Federal Tort Claims Act was filed in the United States District Court for the District of Massachusetts, seeking recovery against the United States of money damages on account of the death of Jeremiah C. Crowley. The death was caused by the alleged negligent operation of traveling cranes by various government employees at the Watertown Arsenal, Watertown, Mass., while acting within the scope of their employment. The plaintiffs named in the complaint, as amended, were the administratrix of the estate of Jeremiah C.

Crowley, suing on behalf of the statutory next of kin pursuant to the Massachusetts Death Act, and the insurer of Crowley’s employer who, having paid compensation to the decedent’s dependents, was empowered to sue the tortfeasor under a subrogation provision of the Massachusetts Workmen’s Compensation Act. Mass.G.L.(Ter.Ed.) c. 152, § 15.

After trial, the district court made findings and conclusions to the effect that under the facts disclosed the United States was liable for compensatory damages on account of Crowley’s death, and that the resulting pecuniary injuries to Crowley’s widow and children, who were his statutory next of kin, amounted to the aggregate sum of $60,000. These findings as to the liability of the United States and the amount of pecuniary injury to the next of kin are not now challenged on this appeal.

But the district court went on to rule, as a matter of law, that the compensatory damages to be paid by the United States were not subject to the limitation upon recovery specified in the Massachusetts Death Act. Accordingly, judgment was entered against the United States in the amount of $60,000, from which judgment this appeal has been taken, presenting to us the sole question whether the damages in this case recoverable against the United States may exceed the statutory maximum of $20,000 contained in the Massachusetts Death Act.

We are called upon to interpret and apply the provisions of the Federal Tort Claims Act, to ascertain the “intention of Congress,” as the saying goes, in a matter with respect to which, unfortunately, the Congress has not expressed its intention with the clarity and precision which might be desired. The Federal Tort Claims Act was first enacted in 1946, 60 Stat. 842. The key

section was § 410(a), reading as follows: “Subject to the provisions of this [Act], the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * * sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claim for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred.

Subject to the provisions of this [Act], the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages. * * * [Italics added.] Thus the

section did not amount to the creation of a new comprehensive code of federal tort liability. Its purpose was not “the creation of new causes of action but acceptance of liability under circumstances that would bring private liability into existence.” Feres v. United States, 1950, 340 U.S. 135, 141, 71 S.Ct. 153, 157, 95 L.Ed. 152. The liability so accepted on behalf of the United States has been referred to as a liability on principles of “respondeat superior.” National Mfg. Co. v. United States, 8 Cir., 1954, 210 F.2d 263, 278.

Ordinarily this means that the employer has to respond in damages where some employee, acting within the scope of his employment, has subjected himself to a tort liability under the applicable local law. However, there may be exceptional cases in which the employee who committed the wrongful act has a personal immunity from any tort liability to the particular plaintiff, yet where, under the local law, his employer, if a private person, may have to respond in damages to the injured individual. See Schubert v. August Schubert Wagon Co., 1928, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293; O’Connor v.

Benson Coal Co., 1938, 301 Mass. 145, 16 N.E.2d 636; Am.L. Inst., Rest, of Agency § 217(2). No doubt, under such circumstances, there might be a liability against the United States under the Tort Claims Act, though the injured person was disabled from recovering any damages against the wrongdoing employee. See United States v. Hull, 1 Cir.1952, 195 F.2d 64, 68.

Under the original statutory scheme of § 410(a), as set forth above, we think it is accurate to say that the United States could never be liable for a greater amount than that for which its wrongdoing employee would be liable under the local law, except in the one situation, just noted, where the injured individual could recover nothing from the employee only because the latter had a personal immunity from such tort liability. As we pointed out in United States v.

Hull, supra, 195 F.2d at page 67, the waiver of sovereign immunity under the Tort Claims Act is not unlimited; the Congress has not thrown the door wide open to suits against the United States in tort in all cases where the United States, if it were a private individual, would be liable in like circumstances under the applicable local law. See also the exceptions specifically listed in § 421 of the original act, 60 Stat. 845-846, now found in 28 U.S.C. § 2680. So, too, under § 410(

a) of the original act, the United States, if liable at all, was liable “to the same claimants, in the same manner, and to the same extent” [italics added] as a private employer under like circumstances; yet this generalization was subject to the qualification or exception “that the United States shall not be liable for interest prior to judgment, or for punitive damages.” Thus, even though under the statutory law of some states a private defendant in a tort action might be liable for interest, from the date the action was instituted, on the amount of damages ultimately determined, see Moore-McCormack Lines, Inc., v.

Amirault, 1 Cir., 1953, 202 F.2d 893, nevertheless the Congress has stipulated that the United States shall not be liable in such eases “for interest prior to judgment.” Likewise, though under the law of some states a private employer, particularly a corporate employer, might be liable for punitive damages where the wrongdoing employee, because of the flagrant character of his wrong, might be subject to liability for punitive as well as compensatory damages, see 61 Harv.L.Rev. 119-21 (1947), yet the Congress chose to prescribe in § 410(

a) that the United States shall not be liable for “punitive damages.” It was brought to the attention of the Congress that this flat prohibition against the recovery of “punitive damages” produced the unintended effect of precluding all liability of the United States for wrongful death in two states of the Union.

The Death Acts of Alabama and Massachusetts, departing from the Lord Campbell’s Act prototype, provided or had been construed to provide that, in suits for death by wrongful act, the amount of liability of the defendant should be assessed, not with reference to the amount of pecuniary loss suffered by the next of kin, but rather on a punitive basis with reference to the degree of culpability of the wrongdoer. The Congress was understandably unwilling on this account to repeal outright the provision of law forbidding the assessment of punitive damages against the United States.

But the Congress did not merely make an amendment to the effect that such prohibition against punitive damages should not apply to suits against the United States under the Death Act of any state which provided, as against a private employer, for the amount of liability to be assessed purely on a punitive basis. If it had done the latter, the Congress would have preserved the symmetry of the Act by permitting recovery against the United States only to the extent permitted by the local law as against a private employer. Instead, on August 1, 1947, the Congress added the following proviso to the language of § 410(

a) above quoted, 61 Stat. 722: “Provided, however, That in any case wherein death was caused, where the law of the place where the act or omission complained of occurred, provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons, respectively, for whose benefit the action was brought, in lieu thereof. * * *” In the process of enactment of the foregoing amendment, the committee reports in both the House and Senate, after pointing out that under the scheme of the Federal Tort Claims Act each case is determined “in accordance with the law of the State where the death occurred,” made the following comment: “This bill simply amends the Federal Tort Claims Act so that it shall grant to the people of two States the right of action already granted to the people of the other 46. “This bill, with the committee amendment, will not authorize the infliction of punitive damages against the Government, and as so amended, it is reported favorably by a unanimous vote. . “Its passage will remove an unjust discrimination never intended, but which works a complete denial of remedy for wrongful homicide.” H.R.Rep.

No. 748, Committee on the Judiciary, 80th Cong., 1st Sess.; Sen.Rep. No. 763, Committee on the Judiciary, 80th Cong., 1st Sess. The substantive provisions of § 410 (a), as thus amended, have since been split up and reenacted in separate sections of Title 28, U.S. Code, as follows: “§ 1346. United States as defendant ****** “(

b) Subject to the provisions of

chapter 171 of this title, the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. * * * ” “§ 2674.

Liability of United States “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. “If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.” Under the provisions of the Federal Tort Claims Act as they now appear in Title 28 of the Code, it is still true that Congress has not enacted a new comprehensive code of federal tort liability.

It is still true that the Act in general calls for an application of the law of the state where the wrongful act or omission occurred. Also, the generalization is still in the law that the United States is to be held liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” The exceptional situation covered by the second paragraph of 28 U.S.C. § 2674 applies only to two of the 48 states, for in 46 of the states recovery under their respective Death Acts rests upon a compensatory basis.

In about a dozen of these 46 states, the local Death Act contains some maximum limit on the amount of recovery. See Note, 26 Ind. L.J. 428, 440 n. 40 (1951). In these states, as the plaintiffs are bound to concede, the United States could not be liable for more than the statutory maximum permitted by state law in suits against private employers. Such is the clear mandate of the first paragraph of 28 U.S.C. § 2674.

As a matter of fact, the Congress and its committees were mistaken in supposing, when the 1947 amendment was enacted, that the Massachusetts Death Act at that time provided for the imposition of damages solely on a punitive basis. Such for many years had been so, but on June 7, 1947, the legislature had amended the statute so as to provide solely for compensatory damages of not less than two thousand nor more than fifteen thousand dollars, “to be assessed with reference to the pecuniary loss sustained by the parties entitled to benefit hereunder.” Mass. Acts 1947, C. 506, § 1A.

If the local Death Act had remained in this form, then the 1947 amendment of § 410(

a) of the Federal Tort Claims Act (now the second paragraph of 28 U.S.C. § 2674) would have had no application; and clearly the United States could not have been held liable for more than the statutory maximum which, under the local Death Act, could have been assessed against a private employer. However, the Massachusetts legislature soon changed its statute again, and when the tortious act occurred in the present case, and at all times thereafter, the local Death Act contained the-following terms, Mass.G.L.(Ter.ed.) C. 229, § 20, as amended: “§ 2C.

Damages for Death by Negligence, etc.; General Provisions. * * * a person who by his negligence or by his wilful, wanton or reckless act or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort, * * * to be distributed as provided in

section one.” Mass.Acts 1951, c. 250. Therefore, the plaintiffs were quite right in contending that the second paragraph of 28 U.S.C. § 2674 applied to the case at bar.

As suggested above, the 1947 amendment to the Tort Claims Act did make a partial break in the original pattern of the Act in that, wherever the amendment was applicable, it became possible (1) that the United States might be held liable for a greater sum of damages, assessed on a compensatory basis, than might be assessed under the local Death Act against a private employer in cases in which the wrongdoer was deemed to have been guilty of the minimum degree of culpability, and (2) the United States might be liable for no substantial damages at all, where the plaintiff failed to prove any pecuniary injury to the next of kin, as was the case in Heath v.

United States, D.C.N.D.Ala.1949, 85 F.Supp. 196, though under the local Death Act a private employer might be subject to large damages assessed on a punitive basis. Thus in either of these situations the United States would not be liable “to the same extent” as a private employer under like circumstances, which is the generally applicable standard in the first paragraph of 28 U.S.C. § 2674.

But we think it is unnecessary to construe the 1947 congressional amendment, which was intended to remove what was deemed to be a discrimination in a very narrow situation, so as to effectuate a far greater discrimination and incongruity. If the contention of the plaintiffs were accepted, then in Massachusetts alone, of all the states whose respective Death Acts contain a maximum limit of recovery, the United States may be held liable in an amount in excess of the maximum limit of recovery permitted against a private employer.

The plaintiffs would have us read literally, and in isolation, the language of the second paragraph of 28 U.S.C. § 2674 that, in lieu of punitive damages, “the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought.” It is argued that since the damages, so computed, have been found to be $60,000, and since the Congress has imposed no maximum limit of recovery, then necessarily, by the very command of the Congress, the judgment against the United States here must be in the sum of $60,000.

The trouble with the foregoing argument is that the Federal Tort Claims Act, as amended, must be read as an organic whole. In 1947, when the Congress enacted the amendment, it demonstrated no objection to that portion of the Massachusetts Death Act which contained a maximum limit of recovery. That was purely a matter of local legislative policy, and if a private employer could not be held for more than $20,000, then the Congress, in waiving the governmental immunity of the United States, had no reason to impose a liability upon the United States in excess of the maximum limit applicable to a private employer.

What the Congress did not want was to have damages assessed against the United States on a punitive basis. We give full effect to the language of the congressional amendment if we assess damages against the United States on a compensatory basis measured by the pecuniary injuries resulting to the next of kin. Having done that, and if the amount so computed is in excess of $20,000, it is in no way inconsistent to cut down the larger sum to $20,000, the maximum amount recoverable under the terms of the Massachusetts Death Act.

All of the $20,-000 to be recovered in such a case would be compensatory damages — not one cent of it would be punitive damages — and thus there would be achieved the congressional objective of preventing the infliction of punitive damages against the United States.

In other words, except where Congress has clearly provided otherwise, it is the general scheme of the Tort Claims Act to refer questions of liability of the United States to the provisions of “the law of the place where the act or omission complained of occurred.” Thus we must look to the local law to see who is entitled to sue, and for whose benefit; we must look to the local law on whether contributory negligence of the decedent, or a release by him during his lifetime, bars the action for wrongful death; and we must also apply the provision of the local law as to the maximum amount of recovery, for in none of these particulars is there .any inconsistent provision in the federal Act.

The judgment of the District Court is vacated and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. . This is so because in Alabama, though damages under its Death Act are assessed on a punitive basis, there is no maximum limit on the amount of recovery. See Heath v. United States, D.C.N.D.Ala. 1949, 85 F.Supp. 196. In all the other states whose acts contain a maximum limit, the damages are assessed upon a compensatory basis, so the second paragraph of 28 U.S.C. § 2674 is inapplicable.