Kalodner, Chief Judge, and McLaughlin, Staley, Hastie, Ganey, Smith and Freedman, Circuit Judges. Kalodner, Chief Judge (dissenting).
WILLIAM F. SMITH, Circuit Judge.
This is an action for personal injuries under section 33 of the Merchant Marine Act of 1920, 46 U.S.C.A. § 688, which incorporates by reference and makes applicable the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. The present appeal by the plaintiff is from a judgment entered on a jury verdict in his favor. The only issue raised is one of damages which must be decided under the cited statutes and the common law principles as interpreted and applied by the federal courts. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361, 72 S. Ct. 312, 96 L. Ed. 398 (1952); Pittsburgh National Bank v. Pennsylvania Railroad Co., 315 F.2d 606, 608 (3rd Cir. 1963) and the cases therein cited. The question is whether the prospective curtailment of one's life expectancy by injury, independent of the economic loss sustained as a result of such curtailment, is a separate and distinct item of the damages recoverable in such an action.
At the time of his injury the plaintiff, an employee of the defendant, was 52 years of age and had a normal life expectancy of approximately 18 years. Early in the morning of November 5, 1958, while aboard ship, he suffered a myocardial infarction, an irreversible heart injury, which shortened his normal life expectancy. Admittedly this injury was not caused by any act or omission of the defendant. The claim for damages was based solely on the ground that subsequent to the heart attack the defendant's servants and agents were guilty of negligent conduct which aggravated the myocardial infarction. There is evidence in the record from which the jury could have found, as it apparently did, that the heart injury was aggravated, as alleged and that this aggravation was the proximate cause of a further curtailment of the plaintiff's life expectancy.
The plaintiff contended in the court below that the diminution of his life expectancy was a compensable injury in and of itself and therefore includable as a separate element of the recoverable damages. Over the objection of the defendant, and pursuant to the written request of the plaintiff, the issue of damages was submitted to the jury on this theory.
The trial judge instructed the jury in pertinent part as follows:
"Then the plaintiff contends that though the heart attack would have foreshortened his life expectancy, that the aggravation that he contends he suffered has further shortened it, and that for the period for which it was further shortened he claims damages.
"If you so find that it was aggravated, that is the pre-existing damage to his heart, and that that foreshortened his life expectency beyond that period of foreshortening which resulted from the heart attack unaggravated, then you will include in the total of your answer to Question 4 fair and reasonable compensation for such further foreshortening of life expectancy.
"In that respect I will read and affirm plaintiff's point 12.
'If you find that the plaintiff is entitled to damages and that as a result of the defendant's negligence plaintiff has suffered a shortening of his life expectancy then you may award the plaintiff a fair and reasonable sum as in your best judgment will compensate him for the shortening of his life expectancy.'
That I affirm in the context of what I have just said to you a moment ago."
The issue of damages was submitted to the jury on carefully framed interrogatories as authorized under rule 49, Fed.Rules Civ.Proc., 28 U.S.C.A.*fn1 The jury made a general award of $86,900, which included a special award in the amount of $25,000*fn2 for the prospective diminution of the plaintiff's life expectancy. On motion of the defendant the trial judge modified the verdict by eliminating therefrom the special award and entered judgment on the verdict as modified. Downie v. United States Lines Company, D.C., 231 F. Supp. 192. The plaintiff argues that this modification of the jury verdict was error.
The plaintiff here contends, as he did in the court below, that the reduction of one's life expectancy is in and of itself compensable and therefore a proper element of the recoverable damages. He cites no cases, either federal or state, to support this view and we have found none. The plaintiff relies primarily on a line of English and Canadian cases, the first of which was decided in 1935. Flint v. Lovell, 1 K.B. 354, 97 A.L.R. 815. Therein it was held that the shortening of one's life expectancy by reason of injury constitutes an element for which damages may be recovered. Apparently the rule has not proved satisfactory and the English courts have experienced considerable difficulty in its application. See Annotation, 131 A.L.R. 1351-1356; Comments, The Measure of Damages for a Shortened Life, 22 U.Chi.L.Rev. 505, 513 (1954). The rule was modified in later cases and as modified limits the amount of recovery. Ibid.
The novel doctrine of the English cases has failed to gain acceptance in the courts of this country. Thus far the state courts which have considered the doctrine have rejected it for various reasons which are not relevant here. Rhone v. Fisher, 224 Md. 223, 167 A.2d 773 (1961); Ham v. Maine-New Hampshire Inter. Bridge Authority, 92 N.H. 268, 30 A.2d 1 (1943); Lake Erie & W.R. Co. v. Johnson, 191 Ind. 479, 133 N.E. 732 (1922); Ramsdell v. Grady, 97 Me. 319, 54 A. 763 (1903); Richmond Gas Co. v. Baker, 146 Ind. 600, 45 N.E. 1049, 36 L.R.A. 683 (1897). The federal courts have similarly rejected it in two cases which involved the application of state law. Farrington v. Stoddard, 115 F.2d 96, 131 A.L.R. 1344 (1st Cir. 1940); O'Leary v. United States Lines Co., 111 F. Supp. 745 (D.Mass. 1953).
A comprehensive analysis of the English cases may be found in Annotations, 97 A.L.R. 823-826 and 131 A.L.R. 1351-1356. See also Rhone v. Fisher, supra. The rule of these cases appears to be predicated on the theory that the shortening of one's life expectancy is per se a compensable element of damages in an action for personal injury. We believe that the rule is not feasible because of the incalculable variables which may enter into any attempt to place a value on life; absent some workable criteria, a damage award would be base speculation. Although we are unwilling to adopt the per se theory it does not follow that damages for the curtailment of one's life expectancy, based on measurable components of injury, are not recoverable. We believe that a fair and just result can be achieved by resort to the rules of damages usually applied in tort actions.
It is the general rule that a seaman who has been injured by the tortious conduct of his employer, or his employer's servants, is entitled to an award in damages commensurate with the nature and extent of his injuries. He is entitled to reimbursement for his loss of earnings, past and prospective, any impairment of his earning capacity, medical expenses incurred and to be incurred, and any other economic loss he may have sustained or is likely to sustain. Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 916 (2nd Cir. 1960), cert. den. 359 U.S. 1000, 79 S. Ct. 1138, 3 L. Ed. 2d 1030. In addition, he is entitled to redress for his physical injury, including the effects thereof, such as pain, suffering, mental anguish, discomfort and inconvenience. These are the items customarily taken into consideration in an award of damages.
If the injuries are permanent in nature and result in an impairment of earning capacity, a seaman is entitled to reimbursement for such impairment including, but not limited to, his probable loss of future earnings. Wiles v. New York, Chicago and St. Louis Railroad Co., 283 F.2d 328, 332 (3rd Cir. 1960), cert. den. 364 U.S. 900, 81 S. Ct. 232, 5 L. Ed. 2d 193; Vickers v. Tumey, 290 F.2d 426, 434, 435 (5th Cir. 1961); See Tullos v. Corley, 337 F.2d 884, 887 (6th Cir. 1964). Damages resulting from the impairment of earning capacity and the probable loss of earnings must be measured on the basis of life expectancy at the time of injury. Ibid. The award must be based upon the probable pecuniary loss reduced to its present net worth. Conte v. Flota Mercante Del Estado, 277 F.2d 664, 669 ...