GILLESPIE, ADMINISTRATRIX v. UNITED STATES STEEL CORP.
No. 10.
Argued October 13, 1964.
Decided December 7, 1964.
Jack G. Day argued the cause for petitioner. With him on the brief was Bernard A. Berkman.
Thomas V. Koykka argued the cause for respondent. With him on the brief were McAlister Marshall and Robert B. Preston.
Mr. Justice Black
delivered the opinion of the Court.
The petitioner, administratrix of the estate of her son Daniel Gillespie, brought this action in federal court against the respondent shipowner-employer to recover damages for Gillespie’s death, which was alleged to have occurred when he fell and was drowned while working as a seaman on respondent’s ship docked in Ohio. She claimed a right to recover for the benefit of herself and of the decedent’s dependent brother and sisters under the Jones Act, which subjects employers to liability if by negligence they cause a seaman’s injury or death. She also claimed a right of recovery under the Ohio wrongful death statute because the vessel allegedly was not seaworthy as required by the “general maritime law.” The complaint in addition sought damages for Gillespie’s pain and suffering before he died,, based on the Jones Act and the general maritime law, causes of action which petitioner said survived Gillespie’s death by force of the Jones Act itself and the Ohio survival statute, respectively. The District Judge, holding that the Jones Act supplied the exclusive remedy, on motion of respondent struck all parts of the complaint which referred to the Ohio statutes or to unseaworthiness. He also struck all reference to recovery for the benefit of the brother and sisters of the decedent, who respondent had argued were not beneficiaries entitled to recovery under the Jones Act while their mother was living.
Petitioner immediately appealed to the Court of Appeals. Respondent moved to dismiss the appeal on the ground that.the ruling appealed from was not a “final” decision of the District Court as required by 28 U. S. C. § 1291 (1958 ed.). Thereupon petitioner admin-istratrix, this time joined by the brother and sisters, filed in the Court of Appeals a petition for mandamus or other appropriate writ commanding the District Judge to vacate his original order and enter a new one either denying the motion to strike or in the alternative granting the motion but including also “the requisite written statement to effectively render his said order appealable within the provisions of 28 U. S. C. A. § 1292 (b),” a statute providing for appeal of certain interlocutory orders. Without definitely deciding whether mandamus would have been appropriate in this case or deciding the “close” question of appealability, the Court of Appeals proceeded to determine the controversy “on the merits as though it were submitted on an appeal”; this the court said it felt free to do since its resolution of the merits did not prejudice respondent in any way, because it sustained respondent’s contentions by denying the petition for mandamus and affirming the District Court’s order. 321 F. 2d 518. Petitioner brought the case here, and we granted certio-rari. 375 U. S. 962.
I.
In this.Court respondent joins petitioner in urging us to hold that 28 U. S. C. § 1291 (1958 ed.) does not require us to dismiss this case and that we can and should decide the validity of the. District Court’s order to strike. We agrée. Under § 129Í an appeal may be taken from any “final” order of a district court. But as this Court often has pointed out, a decision “final” within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545. And our casés long have recognized that whether a ruling is “final” within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a “practical rather than a technical construction.” Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 546. See also Brown Shoe Co. v. United States, 370 U. S. 294, 306; Bronson v. Railroad Co., 2 Black 524, 531; Forgay v. Conrad, 6 How. 201, 203. Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 511, pointed out that in deciding the question of finality the most important competing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Such competing considerations are shown by the record in the case before us. It is true that the review of this case by the Court of Appeals could be called “piecemeal”; but it does not appear that the inconvenience and cost of trying this case will be greater because the Court of Appeals decided. the issues raised instead of compelling the parties to go to trial with them unanswered. We cannot say that the Court of Appeals chose wrongly under the circumstances. And it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the ease back with those issues undecided. Moreover, delay of perhaps a number of years in having the brother’s and sisters’ rights determined might work a great injustice on them, since the claims for recovery for their benefit have been effectively cut off so long as the District. Judge’s ruling stands. And while their claims are not formally severable so as to make the court’s order unquestionably appealable as to them, cf. Dickinson v. Petroleum Conversion Corp., supra, there certainly is ample reason to view their claims as severable in deciding the issue of finality, particularly since the brother and sisters were separate parties in the petition for extraordinary relief. Cf. Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 688-689; Gumbel v. Pitkin, 113 U. S. 545, 548. Furthermore, in United States v. General Motors Corp., 323 U. S. 373, 377, this Court contrary to its usual practice reviewed a trial court’s refusal to permit proof of certain items of damages in a case not yet fully tried, because the ruling was “fundamental. to the further conduct of the, case.” For these same reasons this Court reviewed such a ruling in Land v. Dollar, 330 U. S. 731, 734, n. 2, and Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 685, n. 3, where, as here, the case had not yet been fully tried. And see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 545-547. We think that the questions presented here are equally “fundamental to the further conduct of the case.” It is true that if the District Judge had certified the case to the Court of Appeals under 28 U. S. C. § 1292 (b) (1958 ed.), the appeal unquestionably would have been proper; in light of the circumstances we believe that the Court of Appeals properly implemented the same policy Congress sought to promote in § 1292 (b) by treating this obviously marginal case as final, and appealable under 28 U. S. C. § 1291 (1958 ed.). We therefore proceed to consider the correctness of the Court of Appeals’ judgment.
II.
In 1930 this Court held in Lindgren v. United States, 281 U. S. 38, that in passing § 33 of the Merchant Marine Act, 1920, now 46 U. S. C. § 688 (1958 ed.), commonly called the Jones Act, Congress provided an exclusive right of action for the death of seamen killed in the course of their employment, superseding all state death statutes which might otherwise be applied to maritime deaths, and, since the Act gave recovery only for negligence, precluding any possible recovery based on a theory of unseaworthiness. A strong appeal is now made that we overrule Lindgren because it is said to be unfair and incongruous in the light of some of our later cases which have liberalized the rights of seamen and nonseamen to recover on a theory of unseaworthiness for injuries, though not for death. No one of these cases, however, has cast doubt on the correctness of the interpretation of the Jones Act in Lindgren, based as it was on a careful study of the Act in the context of then-existing admiralty principles, decisions and statutes. The opinion in Lindgren particularly pointed out that prior to the Jones Act there had existed no federal right of action by statute or under the general maritime law to recover damages for wrongful death of a seaman, though some of the States did by statute authorize a right of recovery which admiralty would enforce. Congress, the Lindgren Court held, passed the Jones Act in order to give a uniform right of recovery for the death of every seaman. “It is plain,” the Court went on to say, “that the Merchant Marine Act is one of general application intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, and necessarily supersedes the application of the death statutes of the several States.” 281 U. S., at 44. Thirty-four years have passed since the Lindgren decision, and Congress has let the Jones Act stand with the interpretation this Court gave it. The decision was a reasonable one then. It provided the same remedy for injury or death for all seamen, the remedy that was and is provided for railroad workers in the Federal Employers’ Liability Act. Whatever may be this Court’s special responsibility for fashioning rules in maritime affairs, we do not believe that we should now disturb the settled plan of rights and liabilities established by the Jones Act.
Petitioner argues further that even if the only available remedy for death is under the Jones Act, the District Judge erred in refusing, to hold that the Jones Act provides for damages for death for the benefit of the brother and sisters of the decedent as well as for the mother. Their right of recovery, if any, depends on § 1 of the FELA, 45 U. S. C. § 51 (1958 ed.), which provides that recovery of damages for death shall be:
“for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee . . . .”
In Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 163, this Court, speaking through Mr. Justice Brandéis, held that this provision creates “three classes of possible beneficiaries. But the liability is in the alternative. It is to one of the three; not to the several classes collectively.” We are asked to overrule this case so as to give a right of recovery for the benefit of all the members of all three classes in every case of death. Both courts below refused to do so, and we agree. It is enough to say that we adhere to the Wells-Dickey holding, among other reasons because we agree that this interpretation of the Act -is plainly correct. Cf. Poff v. Pennsylvania R. Co., 327 U. S. 399.
One other aspect of this case remains to be mentioned. The complaint sought to recover damages for the estate because “decedent suffered severe personal injuries which caused him excruciating pain and mental anguish prior to his death.” Petitioner contends that the seaman’s claim for páin and suffering survives his death and can be brought on a theory of unseaworthiness by force of" the Ohio survival statute. The District Judge struck the reference to the Ohio survival statute from the complaint, and the Court of Appeals held that there was “no substantial basis, in this case,” for a claim for pain and suffering prior to death. There is,, of course, no doubt that the Jones Act through § 9 of the FELA, 45 U. S. C. § 59 (1958 ed.), provides for survival after the death of' the seaman of “[a]ny right of action given by this chapter,” i. e.j of his claim based on a theory of negligence. And we may assume, as we .have in the past, that after ■ death of the injured person a' state survival statute can preserve the cause of action for unseaworthiness, which would not survive under the genéral maritime law. In holding that petitioner had not stated a claim entitling her to recovery for the decedent’s pain and suffering the Court of Appeals relied on The Corsair, 145 U. S. 335, 348, a case brought in a federal court to recover damages under a Louisiana survival statute for alleged, pain and suffering prior to death by drowning where there was an interval of “about ten minutes” between the accident and death. The Court held shch damages could not be recovered there, saying:
“. . . there is no averment from which we .can gather that these pains and sufferings were not substantially cotemporaneous with her death.and inseparable as matter of law from it.”
Plainly this Court did not hold in The Corsair that damages cannot ever be recovered for physical and mental pain suffered prior to death by drowning. The case held merely that the averments of the plaintiff there did not justify awarding such damages in an action under the Louisiana survival statute. The Court’s language certainly did not preclude allowance of such damages in all circumstances under other laws, or even under the Louisiana statute in a case where pain and suffering were “not substantially cotemporaneous with . . . death and inseparable as matter of law from it.” In this day of liberality in allowing amendment of pleadings to achieve the ends of justice, the issue whether the decedent’s estate could recover here,for pain and suffering prior to death should not have been decided finally by the Court of Appeals on the basis of mere pleading. Therefore the question whether damages can be recovered for pain and suffering prior to death on the facts of this case will remain open. In all other respects the judgment of the Court of Appeals is
Affirmed.
41 Stat. 1007, 46 U. S. C. § 688 (1958 ed.):
“Any seaman who shall suffer personal injury in the course of his employment may; at his election,- maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”
Ohio Rev. Code § 2125.01.
Ohio Rev. Code §2305.21.
“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.”
Section 1292 (b) provides:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit . an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless .the district judge or the Court of Appeals or a judge thereof shall so order.”
321 F. 2d 518,532.
No review is sought in this Court of the denial of the petition for mandamus»
See, e. g., The Tungus v. Skovgaard, 358 U. S. 588, 595, n. 9; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Mahnich v. Southern S. S. Co., 321 U. S. 96.
Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; The Harrisburg, 119 U. S. 199; cf. The Osceola, 189 U. S. 158.
Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Western Fuel Co. v. Garcia, 257 U. S. 233; cf. The Hamilton, 207 U. S. 398.
35 Stat. 65, as amended, 45 U. S. C. §§51-60 (1958 ed.).
See Fitzgerald v. United States Lines Co., 374 U. S. 16, 20-21, and cases there cited.
36 Stat. 291, 45 U. S. C. § 59 (1958 ed.):
“Any right of action given by this chapter to a person suffering ' injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children- of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin. dependent upon .such employee, but in such cases there shall be only one recovery for. the same injury.”
“Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent’s death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman’s right.” Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4. See also Curtis v. A. Garcia y Cia., 241 F. 2d 30, 36-37. (C. A. 3d Cir.); Holland v. Steag, Inc., 143 F. Supp. 203, 205-206 (D. C. D. Mass.).
Cf. Just v. Chambers, 312 U. S. 383.
Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367.
See Fed. Rules Civ. Proc. 15; Foman v. Davis, 371 U. S. 178; United States v. Hougham, 364 U. S. 310; cf. Conley v. Gibson, 355 U. S. 41.
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