UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
April 21, 1960
UNITED STATES OF AMERICA
Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT, 1960.CDC.52
EDNA G. RANDALL, Administratrix of the estate of FRANCIS D.
April 21, 1960.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
WILBUR K. MILLER, C. J.: When an Eastern Air Lines passenger plane was about to land at the Washington National Airport on the morning of November 1, 1949, it was struck and cut in two by a Bolivian military-type plane, and the 55 persons on board it were killed. *fn1 Among them was Francis E. Randall, an employee of the United States Government who was traveling on official business. He was childless and was survived by his widow, Edna G. Randall.
Generally, under the Federal Tort Claims Act, the United States is liable in damages to the personal representative of a decedent whose death was caused by negligence. But if the decedent was a Government employee whose death occurred during the performance of his duty, the United States is not liable in damages to his personal representative. In such a case, the Government's only liability is under the Federal Employees' Compensation Act, 5 U.S.C. § 760, 39 Stat. 744: to pay compensation at stipulated rates, first to the decedent's childless widow, and then in succession to persons of varying degrees of relationship; there is no provision for the payment of compensation to the decedent's personal representative.
Because of this statutory situation, the administratrix of the estate of Francis E. Randall did not follow the example set by most of the personal representatives of the victims who filed suit in the United States District Court for the District of Columbia against Eastern Air Lines, alleging negligence in the operation of its plane, and against the United States, alleging negligence on the part of its tower operators. Randall's administratrix sued Eastern Air Lines only, and did not complain against the United States because, as we have seen, the Government is not liable in damages under the Federal Tort Claims Act or otherwise for the death of its employee during the performance of his duty, even though the death was caused by the negligence of the United States.
From the many suits filed as a result of the accident, four cases were selected to be tried to determine liability, *fn2 and it was stipulated in all other actions that they should be governed as to liability by the final result of those chosen to be tried. Among the cases included in the stipulation was that presently before us, which had been filed October 26, 1950, by Edna G. Randall, Administratrix of the Estate of Francis E. Randall, against Eastern Air Lines.
The test cases resulted in a final determination that Eastern Air Lines and the United States were liable in damages for the deaths of the persons on the Eastern plane. Union Trust Co. v. United States, 113 F.Supp. 80 (D.D.C. 1953); Eastern Air Lines v. Union Trust Co., 95 U.S. App. D.C. 189, 221 F.2d 62 (1955); United States v. Union Trust Co., 350 U.S. 907 (1955); Eastern Air Lines v. Union Trust Co., 99 U.S. App. D.C. 205, 239 F.2d 25 (1956), cert. denied 353 U.S. 942 (1957). After the final determination of its liability, Eastern Air Lines negotiated a settlement with Randall's administratrix for the sum of $37,500, which was approved by the District Court.
Soon after the fatal accident, Randall's widow had filed a claim for compensation on account of his death with the United States Employees' Compensation Commission. An award was entered May 8, 1950, giving the widow monthly compensation of $292.50 from November 3, 1949, *fn3 until her death or marriage. When she remarried August 31, 1954, she had received compensation in the aggregate sum of $17,165.50.
Having paid the widow compensation in that sum on account of Randall's death, the United States claimed it was entitled to be reimbursed therefor out of the sum of $37,500 which Eastern Air Lines had agreed to pay to the administratrix in settlement of her suit against it, and was entitled to a lien thereon. Because the Government was claiming a lien upon the sum it had agreed to pay to the administratrix, Eastern Air Lines prayed for and obtained permission to pay the sum of $37,500 into the registry of the District Court to await disposition of the Government's claim. Therefore, the Government filed, in the proceeding by the administratrix against Eastern Air Lines, a petition to enforce its alleged lien; it averred that the "Plaintiff, Edna G. Randall, Administratrix of the estate of Francis E. Randall, deceased, received the sum of $17,165.50 under the provisions of the Federal Employees' Compensation Act as the widow of Francis E. Randall. . . ."
After answer by the administratrix, the question was submitted on cross-motions for summary judgment. The District Court granted the motion of the Government and directed that, of the money deposited in the registry of the court, the sum of $17,165.50 be paid to the Government. The court stayed the execution of its order pending this appeal by the administratrix, which immediately followed.
Seizing on the fortuitous circumstance that Mrs. Randall was the widow and also the administratrix, the Government claims it is entitled to reimbursement from the damages paid the administratrix by Eastern for the compensation it paid the widow, because of Section 27 of the Federal Employees' Compensation Act, 5 U.S.C. § 777, 39 Stat. 747. That statutory provision and the related Section 26, 5 U.S.C. § 776, 39 Stat. 747, 64 Stat. 1271, are reproduced in the margin. *fn4
In our view, the flaw in the Government's position is that the widow, who personally received compensation from the United States, had no right of action against Eastern, and the suit against Eastern was not brought on her behalf. It was brought by a fiduciary - the administratrix - on behalf of Randall's estate. The coincidence that both the widow and the fiduciary were Edna G. Randall confers no right on the United States. The Government is no more entitled to recover from the fiduciary the compensation which it paid the widow than it would be if the fiduciary happened to be a trust company.
In preparing its petition to enforce its alleged lien, the Government apparently recognized this difficulty and attempted to evade it by alleging that the plaintiff administratrix received compensation of $17,165.50 "as the widow of Francis E. Randall." Standing alone, this allegation is manifestly incorrect, as the statute does not authorize the payment of compensation to a personal representative. But the allegation does not stand alone; for exhibits attached to the Government's petition, consisting of documents from the files of the Compensation Board, show that the claim for compensation was asserted by "Edna G. Randall, an unremarried widow," that the award and payments were made to her and not to the administratrix. Thus the exhibits attached to the petition of the United States contradict its averment that the administratrix received the payments of compensation.
When there is a disparity between the allegations of a pleading and an exhibit attached to it, the exhibit will control. 1 BARRON AND HOLTZOFF § 325 (1950); Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812 (5th Cir. 1940). From this it follows that the Government's allegation, as controlled by its exhibits, really was that the administratrix did not receive compensation as the widow. With the allegation so read, the Government's petition to enforce its alleged lien was vulnerable when attacked by a motion to dismiss or for summary judgment.
Moreover, as has already been suggested, the administratrix could not have claimed or been awarded compensation, which is an allowance to the widow or next of kin, according to the statute. Only funeral and burial expenses, not in excess of $400, may be paid to the personal representative. 5 U.S.C. § 761.
If, after Randall's debts are paid, his widow personally becomes entitled either to part or all of the remainder of his estate, it will still be true that she never had a claim against Eastern. As we have said, the fiduciary suit against Eastern was not brought on her behalf, and the reimbursement provisions on which the United States relies therefore have no application. Accordingly, the Government had no lien on the money paid into the registry by Eastern Air Lines; its petition to enforce its supposed lien should have been denied, and the motion of the administratrix for summary judgment should have been granted.
Reversed and remanded for proceedings consistent with this opinion.