UNION STEAMBOAT CO. v. FITZGIBBONS, 261 F. 768

ALSCHULER, Circuit Judge (after stating the facts as above). 1. Appellant insists that appellee’s claim is barred by laches through failure to present it for so many years. It appears that suit was duly commenced within two years, as required by the Illinois “Wrongful Death” statute. Prosecution of that suit was prevented by the monition of 1894 issued by the District Court.

The administrator died shortly thereafter, and whether or not the appointment of an administrator de bonis non would be advisable, for the purpose of further prosecuting the claim, might in large measure depend on the outcome of the other claims of the same general nature, arising out of the same accident, which were then in process of adjudication, but which, of course, were not necessarily conclusive upon this claimant. Einal adjudication of those other claims was not had until 1913, when this court decided the appeal. The claim in the suit at bar was filed shortly thereafter.

True, a long time had passed since the occurrence; but from the record it would appear that appellant is by far more blamable than appellee for prolonging the litigation. The proceedings to limit liability were not even begun till nearly three years after the accident, and for the inordinately long pendency of the proceedings thereunder, appellant, in the entire absence of any exculpating circumstances appearing of record, must bear its full share of responsibility, while for this delay no part of the blame attaches to appellee.

Appellee’s suit was begun in proper time, and for aught that appears to the contrary is still pending. The record does not show that the usual notice to claimants to present their claims was given at any time before appellee’s claim was filed in the District Court. In this state of facts the claim is not barred by laches. 2. It is urged that the decree of 1911 terminated the limitation proceedings, and that consequently the court had no jurisdiction in the instant case. The answer is that at least sufficient of the fund to meet this claim is still undisposed of and within the jurisdiction of the court.

So long at least as any of that fund remains within its jurisdiction, it seems plain that the court may entertain claims, which, if allowed, would be payable out of that fund. 3. The contention is made that the damages awarded are manifestly grossly excessive. Deceased was 19 or 20 years old at the time he was killed and was earning about $30 per month, part of which he sent to his parents. He left surviving him his mother, who died about a year after he did, and his father, who died about three years after. There was also a brother,' last known of about three years before the explosion on the Tioga.

Under all these circumstances, the damages awarded are not excessive. 4. Error is assigned on the allowance of interest from date of the commissioner’s report on the other claims (December 1, 1906), and in support appellant invokes the general rule that no interest is allowable on claims in tort for personal injury until they have been liquidated. Appellee maintains that allowance of interest in admiralty is discretionary with the court.

Cases were cited where, if the fund deposited in the court was insufficient to pay the claims, the court, in its discretion, might require the owner who thus took the vessel, to add to the fund interest thereon, upon the theory that, having had the use of the vessel, it would be equitable to require him to pay interest on the fund.

Interest on claims has been awarded, where they arose under contract or were for the value of property destroyed; but the case at bar does not fall within any of such classes, and no cases are cited, and we find none, where on claims such as this interest prior to liquidation was allowed. No reason is apparent for applying to this claim any different rule than that ordinarily prevailing in tort claims for personal injury, viz., that interest is not allowable until damages are liquidated. The Argo, 210 Fed. 872, 127 C. C. A. 456 (9 C. C. A.); Union Steamboat Co. v. Chaffin’s Adm’r, 204 Fed. 412, 122 C. C.

A. 598 (7 C. C. A.); Burrows v. Lownsdale, 133 Fed. 250, 66 C. C. A. 650 (9 C. C. A.). Did the commissioner’s report of December 1, 1906, upon the other claims liquidate the claim here in issue?

It is readily conceivable that, notwithstanding the general similarity'of all these death claims, and th$ likelihood that the legal rule of liability governing one would govern them all, yet even as to the question of liability, the facts concerning one or some of the decedents might be such that an entirely different rule of liability would prevail, and that as to some of the cases there might be liability and as to others not.

But if it were conceded that the finding of liability in respect to the other claims determined the question of liability in this one, yet there remained unadjudicated and unliquidated, the amount of damages to which the claimant is entitled.

This in every case depends upon the facts of the particular case — the áge and earning power of the deceased, whether he leaves next of kin, the extent to which he contributed or was liable to* contribute to their support — all matters of fact entering into the liquidating and fixing of the damages, and it cannot be said that the commissioner’s finding on the other cases liquidated the. damages as to this one. Surely the long delay in the presentation of this claim, while not constituting laches that will bar it, does not raise in its favor any legal or equitable right to interest because of the delay.

We conclude that the District Court did not err in fixing the damages at $2,500, but that there was error in allowing interest from December 1, 1906, and that interest at the lawful rate (5 per cent.) is allowable on the damages from the date of the tommissioner’s report on this claim, May 11, 1917. The decree is reversed, with costs, with direction to the District Court to enter a decree in favor of appellee for $2,500 damages, with interest at 5 per cent, from May 11, 1917.