Before Lumbard, Chief Judge, Swan and Magruder,*fn* Circuit Judges.
SWAN, C.J.: This is an appeal by the executors of the estate of Helen E. Hokinson, who lost her life on November 1, 1949 when an Eastern Airlines plane in which she was a passenger was struck by a Bolivian military type plane, while both were attempting to land at the Washington National Airport in Virginia. The decedent's executors seasonably brought two actions for wrongful death in the District Court for Connecticut. The action now on appeal was brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). It alleged that negligence of Government employees in the control tower at the Airport was a contributing cause of the accident. In this action the executors were awarded damages of $15,000, the maximum amount permitted by the applicable Virginia Wrongful Death Act (1950 Code of Virginia §§ 8-633 et seq.). They have appealed because the court refused to itemize the damages to show what, if anything, was allowed for pecuniary loss, for consortium and for solatium, respectively.
The companion action was brought against Eastern Airlines and the Bolivian pilot. The complaint charged that negligence of both pilots was a contributing cause of the accident. In that action, tried to a jury, the executors obtained judgment against Eastern Airlines for $37,820, under the Wrongful Death Act of the District of Columbia. Subsequently they obtained payment of that judgment, reserving their rights against the United States.*fn1
Trial of the two Connecticut actions was postponed to await determination of the issue of liability in so-called "Miller test cases" brought in the District of Columbia by the personal representatives of other passengers who were killed in the same accident.*fn2 The result of the Miller cases established liability of the United States under the Virginia statute because the negligence of the Government employees occurred in that state, and liability of Eastern Airlines under the District of Columbia statute, because the negligence of Eastern's pilot occurred there. Pursuant to stipulation by the parties to the Connecticut litigation this left nothing but damages to be determined in the Connecticut cases.*fn3 Under the District of Columbia statute damages are measured only by the pecuniary loss sustained by the decedent's next of kin and are unrestricted in amount. Under the Virginia statute, as construed by state decisions, damages may include not only pecuniary loss sustained by the statutory beneficiary (in the present case the decedent's mother) but also compensation for loss of society of the decedent and for mental anguish occasioned by the decedent's death.*fn4 However, the total award of damages is limited to $15,000.
The Connecticut cases were consolidated for trial, the action against Eastern Airlines to be heard by a jury and the action against the United States to be heard by the court, as required by 28 U.S.C.A. § 2402. Testimony as to the mother's pecuniary loss was heard by court and jury. Additional evidence as to the mother's grief and loss of companionship was heard by the court alone. The judgment awarded plaintiffs by the court was for $15,000. The final paragraph of Judge Moore's memorandum of decision, dated January 7, 1959 and not officially reported, reads as follows:
"Decedent's mother is her closest next-of-kin. Considering all factors which under Virginia statutes and case law should enter into a determination of 'fair and reasonable compensation' it is obvious that this amount would substantially exceed the statutory limit of $15,000. Therefore, judgment is awarded in favor of plaintiffs and against the United States of America in the sum of $15,000."
On January 21, 1959 Judge Moore denied plaintiffs' motion to open the judgment and for correction and clarification.*fn5
The appellants claim that the court erred in refusing to itemize the amounts recoverable for the loss of decedent's care, attention and society (consortium) and for the pain and suffering occasioned by her death (solatium) "when the result of such refusal is to preclude any recovery of those two elements of damage." A majority of the court are of the opinion that no error was committed in this respect and that the judgment should be affirmed.
The appellants' contention that under the Virginia statute they are entitled to recover damages from the United States for the loss of society and solatium fails to give recognition to the $15,000 limitation on recovery for all elements of damage to $15,000. In the absence of any authority to control our determination, we think the Virginia statute should be construed to foreclose appellants from recovering additional damages for loss of society and solatium when they have already recovered from a joint tortfeasor an amount greater than that permitted under Virginia law. It does not matter that in determining the amount of the prior recovery the jury did not consider as elements of damage loss of society and solatium. There is nothing in the Virginia law to suggest that these elements must be considered when recovery already exceeds the statutory limit; a contrary interpretation would do violence to the plain meaning of the statute. What is significant is that the appellants have already recovered an amount greater than that which the Virginia legislature has decreed to be permissible in a wrongful death action. We conclude that under the controlling Virginia law the appellants may not recover any additional amount from the United States. It follows that it would be an empty gesture to require the district court to itemize the elements of damage, whether Virginia or federal law be deemed to control the obligation of the court to itemize damages.
Since we think the foregoing discussion sufficient to dispose of the appeal, it is unnecessary to consider the other contentions of the parties.
MAGRUDER, Circuit Judge (dissenting):
This is an altogether unusual case as to which I do not find any precedents to guide me. The common law rules applicable to joint tortfeasors developed in a situation where the law of a single jurisdiction imposed upon two or more persons a liability for a single indivisible injury. Of course in that situation the items of recoverable damage would be the same as to all the joint tortfeasors.
In the case of joint tortfeasors each liable for the same wrongful death, the interpretation usually placed by the courts upon the so-called death acts is that the death act of the jurisdiction wherein the tortious impact takes place is the applicable one, rather than the death act of the jurisdiction wherein a wrongful act is performed or the jurisdiction wherein the wrongful death actually occurs. See discussion in 35 Yale L.J. 395, 401-04 (1926). But in an international sense there is no doubt that the state in which a wrongful act occurred would have a recognized power to impose liability on the basis of a death resulting in another state from such wrongful act.
From the previously decided cases and from the stipulation of the parties filed in this case, we must take it that, in enacting the Federal Tort Claims Act, the Congress had in mind the exercise of that peculiar power. It was held by a majority of a panel of the Court of Appeals for the District of Columbia Circuit in Eastern Airlines, Inc. v. Union Trust Co., 221 F.2d 62 (1955), that the United States was liable for the negligence of government personnel in the control tower, but that, because this negligence occurred in the State of Virginia, the death act of Virginia applied, which limited the amount of recovery to $15,000. The Supreme Court denied ...