decided as amended april 1 1957.: March 14, 1957.
Before GOODRICH, KALOONER and HASTIE, Circuit Judges.
The actions in this litigation were brought against the United States under the Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674. The principal law question involved was the responsibility of the United States for injuries occasioned by the negligence of members of a District of Columbia National Guard unit while the guardsmen were engaged in military service. The injury took place in Delaware in July, 1950. This Court, reversing the trial court, held that the United States was responsible and sent the case back for trial. 3 Cir., 1953, 206 F.2d 912.
The case has now been tried and both parties have appealed. The trial judge made detailed findings of fact. His findings, so far as the negligence, contributory negligence and the extent of physical injuries are concerned, are not appealed from and indeed, hardly could be on this record. The United States denies liability under the Tort Claims Act. Its counsel, however, recognizes that our former holding is the law of the case and does not seek to reargue the question here but reserves the right to raise it again if the case goes further.The appeal from each party comes on the question of damages occasioned to Mrs. O'Toole under the Death By Wrongful Act statute of Delaware. The United States says they were excessive. Mrs. O'Toole claims that an error was committed in leaving out one element of recovery to which she is entitled.
The Government's claim will be considered first. The trial judge allowed $400,000. to the plaintiff as beneficiary under the Death By Wrongful Act statute. Del.Code Ann. tit. 10, § 3704(b) (1953). Obviously this is a large award. But it loses its breathtaking character when the factual background is understood. Thomas B. O'Toole in his lifetime was a phenomenally successful business man. He engaged in real estate and allied enterprises. There is adequate testimony from which the judge found he was making $250,000 a year at the time of his death. At the time of this fatal accident O'Toole was fifty-four years old and Mrs. O'Toole was fifty-seven. The trial judge had before him three life tables: the Commissioner's Standard Ordinary Mortality Table of 1941, United States Life Tables and Actuarial Table 1939-1941 which was a federal government table, and a table published by the Society of Actuaries called "Annuity Tables, Actuarial Functions." The tables give Mr. O'Toole an expectancy of 18.48, 20.2 and 22.99 years respectively.They indicate for Mrs. O'Toole an expectancy of 16.43, 18 and 24.59 years respectively.
It is recognized that life tables are a guide, not a formula which a judge or jury is compelled to apply. Holliday v. Pacific Atlantic S.S. Co., D.C.Del.1953, 117 F.Supp. 729, 734. The trial judge advertently refrained from making a prognosis of the expectancy of O'Toole's life. Dr. Aitken, the man who knew most about O'Toole's health refused to do so. One can hardly expect the trial judge to know more medicine than the physician.
There was evidence, too, showing the contributions which O'Toole had made to his wife in this lifetime.Of course they were not precise and one could not expect that they would be.But there was testimony that the contributions amounted to a sum between $35,000 and $40,000 yearly for the years preceding O'Toole's death.
O'Toole had an illness in March of 1950, a few months before his fatal accident. The nature of it is described in Judge Leahy's findings which are supported by the medical testimony, Here is what he said:
"O'Toole had a cerebral spasm caused by high blood pressure, essential hypertension. It was not a hemorrhage, occlusion, or stroke.O'Toole's illness was diagnosed and treated by Dr. Douglas Aitken, a defense witness, who specializes as a diagnostician and internist. Hospitalization was not required. The spasm and its symptoms cleared within several hours. Essential hypertension is classified from Grade 1 to 4 according to severity. O'Toole's condition after a searching and thorough medical examination was classified as Group 2, a moderate form, by Dr. Aitken.
"No other vascular disturbance or injury was found. The tests revealed O'Toole had not had high blood pressure 'for a very long time'. The doctor saw O'Toole at his home for five or six days, at his office on April 5, 1950, and periodically, about weekly, from April 5, until July 7, 1950. Blood pressure readings show that he had improved; his blood pressure on July 7, 1950 was 178 systolic over 86 diastolic, and the patient had lost thirty pounds. The doctor 'felt definitely that his blood pressure would come down further.'"
So far, so good. The government makes much of the trial judge's failure to make findings or comment upon testimony by a man named Thomas W. Reed, underwriting vice president and chairman of the risk committee of Continental American Life Insurance Company. Mr. Reed was not a medical man and did not pretend to be. He had a chart which purported to show the increase in risk for insured persons who have hypertension. This was not a medical chart; it was simply something to help an insurance company be on the conservative side and charge higher premiums in some cases. It did not take into account the actual cause of death of these persons who had hypertension and were covered by insurance and any conclusion drawn as to actual cause of death was necessarily a "post hoc ergo propter hoc" proposition. Mr. Reed's tables were not up to date on the basis of their statistics; he admitted that they had been criticized by other life insurance people and that he in no way professed to give medical but rather business advice. But even then, taking the government's argument, the reading of diastolic pressure showed that the most unfavorable showing indicated that Mr. O'Toole's life expectancy was only one-half that of other fifty-four year old men. That would give him at least ten years to live and ten years' earnings of $250,000 annually to show a fund from which a conclusion of $400,000 expectable support for his wife is not at all startling.
In other words, while the award is high there is ample evidence to justify it. It is not our function to substitute our judgment for that of the trial judge. Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Dubrock v. Interstate Motor Freight System, 3 Cir., 1944, 143 F.2d 304.
The government complains that the trial judge did not make specific and detailed factual findings as he should have under the teaching of Hatahley v. United States, 1956, 351 U.S. 173, 76 S. Ct. 745, 100 L. Ed. 1065. There is not much to say about this point except that it is not well taken. The judge made, as already said, detailed findings on all the points of evidence. He is not compelled to disclose the mental process of comparing the various life tables estimating probable expectancy more definitely than the medical witness could do and finally setting out ...