# Massachusetts Bonding Insurance Company v. United States/Concurrence Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
United States Supreme Court
352 U.S. 128
Massachusetts Bonding Insurance Company v. United States
Argued: Nov. 8, 1956. --- Decided: Dec 10, 1956
Mr. Justice HARLAN, concurring.
Although I join in the Court's opinion in this case, the importance of the question impels me to add a word to what Mr. Justice DOUGLAS has written. The problem is not an easy one, and I do not think that inquiry can stop with a literal reading of the terms of the statute, plain though they may appear to be. Taking, as I think we should, § 2674(2) within the wider context of the purpose of the Tort Claims Act as a whole, I am still not convinced that Congress intended the $20,000 limitation in the Massachusetts punitive statute to apply to recoveries under the Tort Claims Act.
In applying that limitation, the underlying reasoning of the Court of Appeals was that § 2674(2) must not be read as subverting the overriding philosophy of the Tort Claims Act, that is, that the Government should be liable 'in the same manner and to the same extent' as a private individual under state law would be liable. It therefore argued that although § 2674(2) departed from this philosophy when it made recovery compensatory rather than punitive in instances where the state remedy was punitive, the section in every other respect should be construed harmoniously with this philosophy, and that therefore maxima in state statutes should apply to recoveries against the Government as well as private individuals, even though such a statute is punitive.
But it seems to me that the whole purpose and reason for the enactment of § 2674(2) was to differentiate between the Government and private defendants in the 'manner' and 'extent' of recovery in the particular cases where it applied, and I can find no good reason for giving the section only partial effect. In no case in Alabama or Massachusetts will a plaintiff recover from the Government 'in the same manner' as he would against an individual defendant, and in no case, except by fortuitous circumstance, will he recover to 'the same extent.' In both of these States if a highly culpable defendant causes small pecuniary injury, he will be 'punished' at a high figure, whereas the Government will merely pay the small amount of compensation. Or if a merely careless defendant causes high pecuniary damage, he is punished at a low figure under state law, while the Government must pay for the heavy damage done. In both cases, the effect of the statute is to make the Government liable in a different manner and to a different extent than a private individual under the same circumstances; this, indeed, was the very purpose of the amendment. I therefore do not see why this purposeful differentiation in 'manner' and 'extent' of recovery should stop at the problem of maximum recoveries. Since the Government is by the very statute made liable on a different basis than a private individual and will in every case pay a different amount than would a private individual, why does it offend the philosophy of the Act to make the Government liable for more than a private individual would pay? Thus, while it is true that in general the Tort Claims Act makes the United States pro tanto a private defendant, the very purpose of § 2674(2) was to prevent this assimilation in States where recovery is punitive. It seems to me, therefore, that there is no reason to re-establish the assimilation on this one matter of maximum allowable recovery.
Furthermore, I find it unlikely that Congress would have intended to subject plaintiffs to a maximum which was established for reasons of policy irrelevant to litigation under the Tort Claims Act. Massachusetts has decided that for reasons of policy possibly because of the danger of excessive jury verdicts in 'punitive' cases-recovery under its punitive statute should be limited to $20,000. The statute being penal, it embodies the judgment of the legislature that the highest punishment that should be imposed for nonhomicidal death is this figure. But as soon as punishment has nothing to do with the lawsuit-as it does not in suits under § 2674(2)-and as soon as recovery is for compensation of the victim rather than punishment, then the policy reasons on which the $20,000 limit are based vanish. Massachusetts might, of course, impose a limit on compensatory recoveries as well. It did so for a short time, but then repealed the statute. But it is clear that the limit embodied in this statute has nothing to do with a compensatory suit; the factors which led to the imposition of this maximum are irrelevant when damages are not punitive. It would therefore seem to me just as artificial to take the $20,000 limit of this statute and impose it on a Tort Claims Act recovery as it would be to use as a limit a maximum figure taken from a state criminal statute imposing a fine for negligent homicide. The limitation in the Massachusetts penal statute was arrived at under penal concepts, and should not be artificially imposed on a recovery from which penal considerations have been eliminated by congressional mandate.
The Court of Appeals suggests that if the Massachusetts 'punitive' maximum were not applicable, the Government would be put at a unique disadvantage in Massachusetts, since the death statutes of some twelve other States place limitations on recovery which concededly would be applicable to the United States under the provisions of the Tort Claims Act. But the limitations in these other States all relate to compensation statutes, and I do not, of course, suggest that such a limitation in Massachusetts would not also apply to the Government. The resulting lack of symmetry in the operation of the Act as between Massachusetts and the other States having death recovery maxima, seems to me no greater than it is as between such States and those which impose no monetary limitation on death recoveries. Moreover, symmetry in the first aspect can only be acieved at the expense of offending 'the general scheme of the Tort Claims Act to refer questions of liability of the United States to the provisions of 'the law of the place where the act or omission complained of occurred," since Massachusetts does not recognize compensatory actions.
I think, therefore, that recovery of actual compensatory damages is, in this case, in full accord with the philosophy of the Tort Claims Act.
Mr. Justice FRANKFURTER, whom Mr. Justice REED, Mr. Justice CLARK, and Mr. Justice BRENNAN join, dissenting.
The scope of this case, though involving a general Act of Congress, is geographically constricted; the holding is applicable only to actions under the Federal Tort Claims Act arising out of wrongful deaths in Massachusetts. The Court, finding the words of the Federal Tort Claims Act clear, reversed the judgment of the Court of Appeals, which has special responsibility for interpreting federal law in matters unique to its circuit.
Underlying the Court's reasoning is the belief that the language of the 1947 amendment is so clear that it would require creative reconstruction of the amendment to limit the amount of the judgment to the maximum recoverable under the Massachusetts Death Act. On more than one occasion, but evidently not frequently enough, Judge Learned Hand has warned against restricting the meaning of statute to the meaning of its 'plain' words. 'There is no surer way to misread any document than to read it literally * * *.' Guiseppi v. Walling, 144 F.2d 608, 624, 155 A.L.R. 761 (concurring opinion). Of course one begins with the words of a statute to ascertain its meaning, but one does not end with them. The notion that the plain meaning of the words of a statute defines the meaning of the statute reminds one of T. H. Huxley's gay observation that at times 'a theory survives long after its brains are knocked out.' One would suppose that this particular theory of statutory construction had had its brains knocked out in Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 73 L.Ed. 170.
The words of this legislation are as plain as the Court finds them to be only if the 1947 amendment is read in misleading isolation. An amendment is not a repeal. An mendment is part of the legislation it amends. The 1947 amendment to the Federal Tort Claims Act of 1946 must be read to harmonize with the central purpose of the original Act. The central purpose of the original Act was to allow recovery against the United States on the basis and to the extent of recoveries for like torts committed by private tortfeasors in the State in which the act or omission giving rise to the claim against the United States occurred. The 1947 amendment filled the gap, a very small gap, that was disclosed in the scheme formulated by the 1946 Act.
The gap was the situation revealed in two of the forty-eight States, Alabama and Massachusetts. When the Federal Tort Claims Act was passed, the Death Acts of both Alabama and Massachusetts provided for assessment of the defendant's liability for damages on a punitive basis. In Alabama, however, there was no maximum limitation on the recovery, and the problem of this case-whether a recovery in excess of the statutory maximum recoverable against a private employer can be had against the United States-is therefore unique to recovery against the United States under the Massachusetts Death Act. In filling the gap, Congress was concerned only to provide for recovery against the United States for wrongful deaths in Massachusetts and Alabama and to provide for recovery, as did the original Act, on a compensatory not a punitive basis. There is nothing to indicate, and it is unreasonable to suppose, that Congress meant a recovery in Massachusetts to be unlimited in amount in the face of the State's statutory limitation at the same time that recoveries in the dozen other States with statutory limitations would be restricted. Such a construction not only takes Massachusetts plaintiffs out of the general scheme of the Federal Tort Claims Act. It does so by putting them in a better position than plaintiffs in the dozen other States with statutory ceilings. This imputes to Congress a desire to correct the inequity in the 1946 Act by creating an inequity in the 1947 amendment.
Of course the Massachusetts limitation is contained in a statute in which damages are related to a punitive rather than a compensatory basis. The purpose of the 1947 amendment was to allow recovery against the United States when the governing state statute measured damages on such a basis. With this sole exception that the state statute puts the recovery on a harsher basis, the state statute is the governing statute. It may well be that if Massachusetts were to enact a statute restricting recovery to compensatory damages, it would impose a different ceiling. But that is no reason for rejecting the ceiling in the present statute. It does not comport with good sense and reason to suppose that a State would impose a higher ceiling on a recovery based on compensatory damages than it does when it allows punitive damages. This common-sense assumption is supported by the fact that during the brief period from 1947 through 1949, when the Massachusetts statute did measure damages solely on a compensatory basis, the ceiling was fixed at $15,000. This was the same ceiling that was in the previous statute which measured damages on a combined punitive and compensatory basis and the same ceiling that was in the immediately subsequent statute which measured damages solely on a punitive basis. To deny effect to this common-sense assumption is to elevate the literal reading of the 1947 amendment above the central basis of the Federal Tort Claims Act, the assimilation of recovery under federal law to recovery under state law.
The Court of Appeals for the First Circuit, in an opinion by Chief Judge Magruder, construed the 1947 amendment in order to harmonize it with the central purpose of the Federal Tort Claims Act. Since elaboration of my reasons for agreeing with the interpretation of the Court of Appeals could only be a paraphrase of its opinion, I rest my dissent from the Court's judgment on what I regard as the substance of that opinion:
'In the process of enactment of the foregoing amendment (the 1947 Act), the committee reports in both the House and Senate, after pointing out that under the scheme of the Federal Tort Claims Act each case is determined 'in accordance with the law of the State where the death occurred,' made the following comment:
"This bill simply amends the Federal Tort Claims Act so that it shall grant to the people of two States the right of action already granted to the people of the other 46.
"This bill, with the committee amendment, will not authorize the infliction of punitive damages against the Government, and as so amended, it is reported favorably by a unanimous vote.
"Its passage will remove an unjust discrimination never intended, but which works a complete denial of remedy for wrongful homicide.' H.R.Rep.No. 748, Committee on the Judiciary, 80th Cong., 1st Sess.; Sen.Rep.No. 763, Committee on the Judiciary, 80th Cong., 1st Sess.
'Under the provisions of the Federal Tort Claims Act as they now appear in Title 28 of the Code (28 U.S.C.A.) it is still true that Congress has not enacted a new comprehensive code of federal tort liability. It is still true that the Act in general calls for an application of the law of the state where the wrongful act or omission occurred. Also, the generalization is still in the law that the United States is to be held liable in tort 'in the same manner and to the same extent as a private individual under like circumstances.' The exceptional situation covered by the second paragraph of 28 U.S.C. § 2674 (28 U.S.C.A. § 2674) (that is, the 1947 amendment) applies only to two of the 48 states, for in 46 of the states recovery under their respective Death Acts rests upon a compensatory basis. In about a dozen of these 46 states, the local Death Act contains some maximum limit on the amount of recovery. * * * In these states, as the plaintiffs are bound to concede, the United States could not be liable for more than the statutory maximum permitted by state law in suits against private employers. Such is the clear mandate of the first paragraph of 28 U.S.C. § 2674 (28 U.S.C.A. § 2674).
'As suggested above, the 1947 amendment to the Tort Claims Act did make a partial break in the original pattern of the Act in that, wherever the amendment was applicable, it became possible (1) that the United States might be held liable for a greater sum of damages, assessed on a compensatory basis, than might be assessed under the local Death Act against a private employer in cases in which the wrongdoer was deemed to have been guilty of the minimum degree of culpability, and (2) the United States might be liable for no substantial damages at all, where the plaintiff failed to prove any pecuniary injury to the next of kin * * * though under the local Death Act a private employer might be subject to large damages assessed on a punitive basis. Thus in either of these situations the United States would not be liable 'to the same extent' as a private employer under like circumstances, which is the generally applicable standard in the first paragraph of 28 U.S.C. § 2674 (28 U.S.C.A. § 2674.)
'But we think it is unnecessary to construe the 1947 congressional amendment, which was intended to remove what was deemed to be a discrimination in a very narrow situation, so as to effectuate a far greater discrimination and incongruity. If the contention of the plaintiffs were accepted, then in Massachusetts alone of all the states whose respective Death Acts contain a maximum limit of recovery, the United States may be held liable in an amount in excess of the maximum limit of recovery permitted against a private employer. (Footnote omitted.)
'The plaintiffs would have us read literally, and in isolation, the language of the second paragraph of 28 U.S.C. § 2674 (28 U.S.C.A. § 2674) that, in lieu of punitive damages, 'the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought.' It is argued that since the damages, so computed, have been found to be $60,000, and since the Congress has imposed no maximum limit of recovery, then necessarily, by the very command of the Congress, the judgment against the United States here must be in the sum of $60,000.
'The trouble with the foregoing argument is that the Federal Tort Claims Act, as amended, must be read as an organic whold. In 1947, when the Congress enacted the amendment, it demonstrated no objection to that portion of the Massachusetts Death Act which contained a maximum limit of recovery. That was purely a matter of local legislative policy, and if a private employer could not be held for more than $20,000, then the Congress, in waiving the governmental immunity of the United States, had no reason to impose a liability upon the United States in excess of the maximum limit applicable to a private employer. What the Congress did not want was to have damages assessed against the United States on a punitive basis. We give full effect to the language of the congressional amendment if we assess damages against the United States on a compensatory basis measured by the pecuniary injuries resulting to the next of kin. Having done that, and if the amount so computed is in excess of $20,000, it is in no way inconsistent to cut down the larger sum to $20,000, the maximum amount recoverable under the terms of the Massachusetts Death Act. All of the $20,000 to be recovered in such a case would be compensatory damages-not one cent of it would be punitive damages-and thus there would be achieved the congressional objective of preventing the infliction of punitive damages against the United States. In other words, except where Congress has clearly provided otherwise, it is the general scheme of the Tort Claims Act to refer questions of liability of the United States to the provisions of 'the law of the place where the act or omission complained of occurred.' Thus we must look to the local law to see who is entitled to sue, and for whose benefit; we must look to the local law on whether contributory negligence of the decedent, or a release by him during his lifetime, bars the action for wrongful death; and we must also apply the provision of the local law as to the maximum amount of recovery, for in none of these particulars is there any inconsistent provision in the federal Act.' 227 F.2d 385, 388 391.

## Notes

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