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United States v. Nichols


September 18, 1963


Author: Schnackenberg; Wisdom

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.


Alphonso Nichols, defendant, has appealed from a judgment of conviction entered by the district court on an indictment charging violations of the United States narcotics laws, upon which he was sentenced to the custody of the attorney-general for a period of seven years on each of nine counts, to run concurrently.

Counts VIII and IX were dismissed on motion of the government. The various remaining counts respectively charged defendant with unlawful receipt, concealment, and sales of heroin in violation of 26 U.S.C.A. § 4705(a) and 21 U.S.C.A. § 174 both as amended by the Narcotic Control Act of 1956.

Defendant pleaded not guilty and was tried before a jury. His motion for a new trial was denied.

1. In this court defendant first contends that the district court did not tell the jury the details of what the indictment charged, but merely gave the indictment to the jury and told them that they were free to examine it "* * * if you like."

No objection based upon this alleged error was made at the trial, but we feel justified, in view of the nature of defendant's contention, to consider it in this court.

We have read the record and find that the jury was instructed, inter alia:

"Now, let's deal specifically with the charges that are contained in the counts of the indictment which you are going to consider.

"The defendant is charged in Counts I, III, V and X, that is, four counts, with violation of Section 4705(a) of the Internal Revenue Code of 1956, which reads as follows:

"'It shall be unlawful for any person to sell, barter, exchange or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged or given on a form to be issued in blank for that purpose by the Secretary of the Treasury or his delegate.'

"In Counts II, IV, VI and VII of the indictment, the defendant is charged that on April 5, 1961, April 10, 1961, April 19, 1961, May 12, 1961 and June 27, 1961, that he then and there, fraudulently and knowingly received, concealed and facilitated the transportation and concealment, after unlawful importation into the United States of a quantity of a certain drug, to-wit, under Count II, 15.9 grams, Count IV, approximately 16.6, Count VI, approximately 15.950 grams, Count VII, approximately 42.320 grams, Count XI, approximately 11.305 grams, knowing the same to have been imported into the United States contrary to law, in violation of Section 174, Title 21, of the United States Code, as amended by the Narcotic Control Act of 1956.

"The statute of the United States under which this violation is charged reads, in pertinent part, as follows:

"'Whoever fraudulently or knowingly receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug, after being imported or brought in, knowing the same to have been imported contrary to law, shall be,' et cetera.

"This is also part of the statute:

"'Whenever on trial for a violation of this section, the defendant is shown to have or have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.'

"In this instance, of course, the defendant has denied having possession of any narcotic drugs at any time."

In United States v. Jonikas, 7 Cir., 197 F.2d 675, we approved a conviction of defendant for possessing and passing counterfeit bills. At page 679 of 197 F.2d we discussed defendant's contention that the district court failed to instruct the jury in relation to certain charges in the indictment. We said:

"* * * Failure to describe more specifically the separate counts of the indictment did not deprive the defendant of any constitutional right nor deprive the court of jurisdiction to render the judgment."

We feel that the submission of the indictment to be examined by the jury, at its option, was of dubious value, although harmless.

We hold that the court's instructions as to the charges in the indictment were sufficient.

2. Defendant argues that the district court refused to properly consider the element of knowledge and the element of intent, in its instruction on the meaning of possession. We disagree.

For instance, the court properly charged:

"Now, what does possession of a thing mean? It means having it in one's control or under one's dominion. It is not necessary that possession be direct or immediate or exclusive.

"If you find from the evidence that the defendant, although he may have had the right to obtain physical control of a substance, did not know that such substance was narcotic drugs, then such possession of the narcotic is not that possession contemplated by the law. In other words, you have to have knowing possession of illegal or contraband products, such as narcotics, to constitute a violation of the law."

Moreover, we are satisfied that the jury was fully and correctly instructed on the law pertaining to reasonable doubt and presumption of innocence.

If anything, the court went out of its way to add the following instruction:

"For example, the presumption of innocence with which a defendant starts a trial is a presumption which the law requires you to make unless you find convincing evidence to the contrary. A presumption continues in effect until overcome or outweighed by evidence to the contrary. But if it is so outweighed, then you are to find whatever conclusion you draw from whatever evidence you have heard. If it is not so outweighed, you are bound to find in accordance with the presumption."

The court's solicitude for the rights of the defendant was emphasized by its concluding remarks to the jury:

"Let me reiterate, the defendant is presumed to be innocent unless you find beyond a reasonable doubt that the Government has established his guilt as to one or more counts of the indictment."

3. Asserting that the "most significant issue presented to the jury lay in the relationship between the defendant and the deceased known as Dorothy Nichols," defendant now concedes that drug addicts conducted transactions at defendant's home, but that he had no knowledge thereof. He points out that count VII relates to narcotics kept in a safe-deposit box which only Dorothy entered. However, it was stipulated at the trial that this box at a Chicago bank was leased to three persons, who were defendant, Dorothy and one Charles A. Ross.

In support of the testimony of certain witnesses, the government relied, inter alia, on evidence that a gun, government's exhibit F, was found in said box and the testimony of government witness Mack, who stated that, in April of 1961, he possessed an Italian 25 caliber silver pistol with scroll work on the side and a pearl handle; that about the middle of April, the exact date being unknown, he gave the weapon to defendant at his home. Mack, when asked to identify exhibit F, answered:

"To the best of my knowledge, I believe this is the same weapon."

He added that, on the previous day, he had seen the weapon in the prosecutor's office, and had described it to agent Taylor at the time of his arrest.

On cross-examination, his attention was called to an inscription "made in Spain" on the gun and he stated that he had never read that inscription before.

The gun having been received in evidence over objection, defendant's motion for a mistrial was denied.

Witness Mack was thoroughly cross-examined about the gun by defense counsel.

In this court defendant asserts:

"It is incredible that anybody could profess to reasonable assurance that the gun which Mack claims to have given the defendant was the same gun introduced in evidence." (Italics ours.)

Inasmuch as counsel for defendant expressly grounds his argument upon the basis of incredibility, he tacitly admits that the question of the identity of the gun found in the box as being the same as the weapon which he gave to defendant, was a question of fact for the jury. We hold that there was sufficient evidence to support the finding of fact by the jury, implicit in its verdict, that the gun found in the box was the gun that Mack had given to defendant.

4. Defendant argues that there was no showing that the substance allegedly received by Mack from defendant was heroin. We disagree.

On May 11, 1961, Mack telephoned the defendant and asked whether he could buy "two spoons of stuff", the word "stuff" meaning heroin to the witness. After telephoning, and, pursuant to arrangements made with defendant, he went to the latter's home and gave him $270 and then, not hearing from defendant for four hours, he again went to his home and was told by defendant that he was not ready. Thereupon, on the next morning, May 12, 1961, defendant called Mack and directed him to meet Dorothy Nichols at 63rd and Halsted streets. Going there he waited until she arrived and gave him a tin foil package containing a powder, which he took home and some of which he injected into his arm with a hypodermic needle. His reaction thereto he described to the court and jury. He received the same reaction from the injection of this powder that he always did.

Bank records showed that an entrance ticket to the box was issued on May 12, 1961 at 9:58 A.M. and it was signed by Dorothy.

A chemist in the government's internal revenue laboratory who examined a white powder found in the box, following the death of Dorothy, ascertained that the powder was heroin. She died June 13, 1961.

We are convinced that, from the evidence in the record, the jury was justified in finding beyond all reasonable doubt that the substance involved in the transactions covered by the indictment was heroin. Generally in support of our conclusion are Toliver v. United States, 9 Cir., 224 F.2d 742, 745 (1955), and United States v. Agueci, 2 Cir., 310 F.2d 817, 828 (1962).

5. In proof of several counts, the government relied at the trial on testimony of Steve Spaulding that, after receiving a substance from defendant on April 5, 1961 and April 19, 1961, and from his wife on April 10, 1961, he returned to his home and diluted the packages with milk sugar and what is termed "mannitte". Defendant contends there resulted a lack of proof that the substance obtained from him and his wife was heroin.

Defendant admits that the chemist confirmed that the resulting mixture was a narcotic, but insists that it does not follow that defendant gave a narcotic substance to Spaulding.

There is evidence showing that on April 5, 1961, Spaulding called defendant and told him he wanted to "make up", which to him meant "buy some drugs". Arriving at defendant's home, he said that he wanted "two spoons of stuff", which to him meant heroin. He gave defendant $220 and received from him two glassine packages, which he wrapped up in tin foil and handed to Spaulding. On April 10, 1961 he received two glassine packages from defendant's wife. On April 19, 1961, he called defendant, told him he wanted to "make up" and upon arriving at defendant's home he was admitted by Dorothy Nichols and paid her $220. She went upstairs and returned with two packages which she began to wrap, when defendant entered and inquired whether anyone had followed Spaulding. Defendant looked out the window and saw a white man standing outside, whereupon he told his wife to return the money to Spaulding who left and went to a movie. After the movie he called defendant to "make up", returned to defendant's basement and gave him the $220. Defendant then gave him two glassine envelopes and told him to be careful. The jury might well have drawn an inference that Spaulding, the defendant and his wife, did not go through these involved and guarded maneuvers in order to deliver some innocuous powder to Spaulding, who would then return to his own basement and add the heroin, which was subsequently found in the chemical analysis. In fact a failure by the jury to draw such an inference would be surprising. None of these facts in evidence is inconsistent with a finding that the substance received by Spaulding from the defendant contained heroin.

6. Contrary to defendant's argument that the evidence did not suffice to prove guilt beyond a reasonable doubt, we are required to apply to the evidence in the record the rule that the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; United States v. Frierson, 7 Cir., 299 F.2d 763, 767 (1962). We hold that the evidence in the record meets this test beyond a reasonable doubt as to the guilt of defendant.

For these reasons we affirm the judgment from which this appeal was taken.

Judgment affirmed.

Before HUTCHESON, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is an appeal by the plaintiff, the widow of W. E. Simpson, from an award of damages in a wrongful death action which she contends is grossly inadequate.

On November 30, 1960, Simpson, while changing a flat tire, was struck and killed by a drunken government employee driving a government vehicle. Suit was brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). The trial judge, hearing the case without a jury, found that both parties were negligent, but that there was insufficient proof to show by a preponderance of the evidence that the decedent's negligence was a proximate cause of his death. He awarded the plaintiff $14,000.

At the time of his death, Simpson, a farmer in Crosby County, Texas, was sixty years old and had a stipulated life expectancy of sixteen years. He and his wife, who was five years his junior, had been married thirty-six years and had four children, ranging in age from thirty-five to twenty-four. He was a good provider for his family and had furnished his children with an education for "as long as they would go" to school. Although his older son had not finished figh school, Simpson had sent both daughters to Texas State College for Women at Denton for a period, and, at the time of the accident, the youngest child, a son, was attending Sul Ross College at Alpine. Mrs. Simpson testified that her husband frequently helped her around the house and she had relied upon him heavily for business advice.

Simpson's income tax returns for the years 1954 to 1960 showed a gross income ranging from $24,139.55 in 1958 to $14,059.97 in 1954. His net income was $4,501.25 in 1954, $5,239.29 in 1955, $9,783.16 in 1956, $5,342.81 in 1957, $7,456.90 in 1958, $6,013.65 in 1959, and $5,046.88 in 1960. The average net income for the seven year period was approximately $6,200. This was derived from farming two tracts of land. The larger one, 640 acres, was leased by Simpson and devoted primarily to growing cotton, and smaller amounts of wheat and maize. He owned the smaller, 80 acre tract, which, except for a 17 acre field planted with cotton, he used for raising stock. He did most of the work on the farm himself. His wife testified that he "drove the tractor, checked the irrigation wells, did all the tending to the stock and things like that." He also kept milk cows, chickens, and hogs, primarily for consumption on the farm, and tended to them himself. He was in excellent health and, according to the testimony of his older son, worked about twelve hours a day.

The year following her husband's death, Mrs. Simpson attempted, with the aid of her two sons, to continue her husband's farming operations. Under her agreement with them, the son in college was to help during the summer and receive the produce from twenty-five acres of cotton plus $900 from the wheat and maize crops; Mrs. Simpson and the older boy would then divide the rest of the crop equally between them. As a result of overstraining herself while trying to keep the cattle fed during the winter, Mrs. Simpson was briefly hospitalized, and from then on was unable to do any hard physical labor on the farm. She was thus forced to sell the stock, and had to engage a hired hand to do the heavy work. It was estimated at the trial that in 1961 the cotton crop would yield a gross income of about $19,000 and a net income of $4,357.56, of which Mrs. Simpson's share would be $2,178.80. The wheat and maize crops each grossed over $2,000 and raised the total income of the partnership to $5,952.13. However, out of her total share of $2,976.06, Mrs. Simpson had to pay personal business expenses of $1,594.57 for the hired hand and cattle feed. Thus, her actual net income was $1,381.49.

Because of her inability to perform the hard labor entailed in farming, Mrs. Simpson was forced after this one year to drop the lease on the 640 acres which her husband had been farming for the preceding nineteen years. She sold her farming equipment to her two sons and moved to the eighty acre tract. This then became her sole means of support. The cotton aceage here netted approximately $780 in 1961, and Mrs. Simpson testified that about 30 additional acres could be planted in maize. She would be unable to do all the labor in growing these crops herself, however, and the record gives no indication that her income from this small tract would approach even the $1,381.49 which she made in 1961. She testified that she might be able to supplement her income by getting a job clerking in a dry goods store in Ralls, a nearby town, on busy days, but that she would be unable to get into town on rainy days because there was no paved road leading to the farm.

In view of all this testimony, none of which was contradicted, the $14,000 award to the plaintiff for her pecuniary loss is shockingly small. Appellee urges, however, that the amount of damages in such a case is for the determination of the trier of fact and should not be disturbed upon appeal. In an action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), the law of the state where the cause of action arose "is binding as to measure of damages, as well as other features under the Tort Claims Act." United States v. Sutro, 9 Cir., 1956, 235 F.2d 499. See United States v. Compania Cubana De Aviacion, S.A., 5 Cir., 1955, 224 F.2d 811; Cook v. United States, 2 Cir., 1960, 274 F.2d 689; United States v. Hatahley, 10 Cir., 1958, 257 F.2d 920; Knecht v. United States, 3 Cir., 1957, 242 F.2d 929; United States v. Brooks, 4 Cir., 1949, 176 F.2d 482. Cf. Hoyt v. United States, 5 Cir., 1961, 286 F.2d 356. Thus we must look to the rule as enunciated by the Texas courts for the compoents and measure of damages in a wrongful death action under Art. 4677, Vernon's Ann.Texas Civ.Stat.

In Louisiana & A. Ry. v. Chapin, Tex. Civ.App.1949, 225 S.W.2d 614, 616, the Texas Court of Civil Appeals stated:

"The statute in such cases provides that for wrongful injuries resulting in death 'the jury may give such damages as they think proportionate to the injury resulting from such death.' Art. 4677, R.S. The difficulties of proof in such matters are well known to the legal profession. No rule is prescribed for making the calculations. Exact ascertainment is obviously not possible. Juries from their own knowledge, experience and sense of justice are called upon to fix the compensation with reference as far as possible to conditions existing at the time of death."

It is well settled that neither pecuniary benefits nor care and guidance "can be measured in dollars and cents with either mathematical or legal certainty." Union Transports, Inc. v. Braun, Tex.Civ.App. 1958, 318 S.W.2d 927, 938; Texas & N.O.R. v. Landrum, Tex.Civ.App., 264 S.W.2d 530, 539. But these and similar statements by the Texas courts, see, e.g., Texas Consolidated Transportation v. Eubanks, Tex.Civ.App.1960, 340 S.W.2d 830; Rowan & Hope v. Valadez, Tex. Civ.App.1953, 258 S.W.2d 395 must be considered in the context in which they arose. In each of these cases, the courts have used language indicating the wide discretion of the trier of fact to set awards under Article 4677, Vernon's Ann. Texas Civil Statutes, in order to justify awards which were not limited strictly to a computation of provable pecuniary loss. In Texas Consolidated Transportation Co. v. Eubanks awards totalling $162,500 to the widow and minor daughter of a sixty-three year old railroad engineer who was earning $9,076.87 per year were upheld. Again, in Union Transports, Inc. v. Braun, the plaintiff was awarded $65,000 for the death of his wife and their two minor children received smaller awards. In commenting upon the objection that the award to deceased's husband was almost twice as much as he would have received had his wife continued doing secretarial work for the remainder of his expected life span and paid her entire salary to him, the court pointed out that "[the] earning capacity of the deceased * * * is not the sole basis for damages in such cases" and that the award was not out of line with those given in similar cases. (Emphasis supplied.) 318 S.W.2d at 937. Similarly, the court in Rowan & Hope v. Valadez, upheld an award of $22,924 to the widow of a fifty-nine year old ranch laborer who contributed about fifty dollars a month in cash and twenty-five dollars per month in rations to his family's upkeep. The court stated:

"The sum of $50 per month for eighteen years, the life expectancy of the deceased, will not total the sum awarded by the jury, but the members of the jury in fixing the pecuniary loss were not restricted to a mathematical formula. They could properly consider and credit the evidence that Jose Maria B. Valadez had maintained a family for a period of twenty-five years, provided for the sustenance of the members thereof, counseled and advised with his wife and children and had provided educational facilities for the latter, as their needs required. They were authorized to estimate the value of these contributions and services." 258 S.W.2d at p. 400.

These and other decisions make it abundantly clear that although the jury is not limited in wrongful death actions to a computation of pecuniary loss based upon the projection into the future of deceased's past earnings, this is the basic or primary element of such awards. The authorities cited by the appellees make the same point:

"When a wife sues for wrongful death of her husband, the measure of damages in such sum of money as, if presently paid, will reasonably compensate her for the pecuniary loss sustained through death, excluding any allowance for loss of companionship or as a solace for grief." (Emphasis supplied.) 17 Tex.Jur.2d p. 602. "Every father and husband has for his wife and children a pecuniary value beyond the amount of his earnings by his labor or vocation." 17 Tex.Jur.2d p. 613. See Industrial Fabricating Co. v. Christopher, Tex. Civ.App.1949, 220 S.W.2d 281, 290. Thus the Texas courts have reversed as inadequate awards which did not properly take this factor of past earnings into account. See e.g., Burns v. Merchants' & Planters' Oil Co., 1901, 26 Tex.Civ.App. 223, 63 S.W. 1061. Cf. Davis Transport, Inc. v. Bolstad, Tex.Civ.App.1956, 295 S.W.2d 941.

This is not to say that there is a fixed rule which requires an award in a case such as this to equal, at the minimum, the deceased's past income projected for his life expectancy. Indeed, some Texas courts do not require the jury to utilize mortality tables in making its award, see, e.g., Texas Consolidated Transportation Co. v. Eubanks; but see Union Transports, Inc. v. Braun. At the very least, however, the award should bear some ascertainable relation to the pecuniary benefits which the decedent's spouse or child might reasonably have expected to receive had the wrongful death not occurred.

Except for a relatively brief bout with an ulcer over 20 years before his death, Simpson had always been in perfect health and had no intention of retiring from farming. His income averaged about $6,200 a year, and the undisputed evidence is that all of this went toward the upkeep of his home and farm. His wife, therefore, could have expected to count on approximately this amount for living expenses for some time to come. At the very minimum, however, she was entitled under Texas community property law to consider half this sum, or $3,100 a year, hers. Thus, even if she could continue to make by her own efforts as much as she cleared in 1961 - i.e. about $1,400 - which is highly doubtful, she would still have lost more than $1,700 per year in her own personal income. This figure, of course, is far removed from the actual cash income which she would have received for use in running the household had her husband not been killed, and it ignores the very important consideration that she would still have to work herself in order to raise the $1,700 to the $3,100 per year which, before her husband's death, was legally hers. Moreover, this calculation of damages does not even purport to take into consideration her loss of her husband's counsel and guidance, which is compensable under Texas law, e.g., Texas Consolidated Transportation Co. v. Eubanks; Rowan & Hope v. Valadez, or the amount added to her real income by her husband's activities in raising animals for farm consumption, see e.g., Davis Transport, Inc. v. Bolstad, or the value of his services around the house, see e.g., Union Transports, Inc. v. Braun. More important, it does reduce the calculation of her pecuniary loss by the amount of income which she herself can earn, although this is normally an improper factor to take into consideration. Welch v. Ada Oil Co., Tex.Civ.App.1957, 302 S.W.2d 175, 180. Thus, even computed as conservatively as possible, the absolute minimum amount which could compensate Mrs. Simpson for the pecuniary loss entailed by the death of her husband would be $27,000.

Texas courts have long recognized the extent of their supervisory authority over the fairness of verdicts under Art. 4677, Vernon's Ann.Tex.Civ. Statutes, stating that

"In case of abuse and the return of a grossly excessive or inadequate award, this Court will intervene, in accordance with recognized principles of law." Rowan & Hope v. Valadez, Tex.Civ.App.1953, 258 S.W. 2d 395, 401.

Nor have the Texas courts been hesitant to exercise this supervisory intervention. See, e.g., Continental Bus System, Inc. v. Toombs, Tex.Civ.App.1959, 325 S.W. 2d 153 (judgment of $50,000 excessive by $20,000), Union Transports, Inc. v. Braun (two remittiturs of $12,500 ordered), Davis Transport, Inc. v. Bolstad, (remittitur ordered by trial judge was improper; judgment reformed to accord with original award), Burns v. Merchants' & Planters' Oil Co. (grossly inadequate jury award reversed and remanded for a new trial).

This Court is no more powerless than a state court to order a remittitur for a grossly excessive verdict or to correct a grossly inadequate one. We pointed out in Sanders v. Leech, 5 Cir., 1946, 158 F.2d 486, 487, which involved the adequacy of a trial judge's award in a personal injury action, that the Court could reverse such a finding of fact

"(1) where the findings are without substantial evidence to support them; (2) where the court misapprehended the effect of the evidence; and (3), if, though there is evidence which if credible would be substantial, the force and effect of the testimony considered as a whole convinces that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case."

We believe this case falls within the second exception listed above. The trial judge, in rendering his award, apparently thought that the plaintiff would lose no more than $990 a year in income because of the death of her husband. If only her net profit on the cotton crop for 1961 is considered and no deduction is allowed for the hired man's wages, this is the net loss arrived at. The confusion in the record, which at one point mistakenly indicates that $2,178.80 was Mrs. Simpson's total net income lends credence to the appellant's suggestion that this was, in fact, the method used. If so, the verdict was clearly based upon a misapprehension of the facts, and therefore subject to corrective action by this Court.

The question remains whether the case should be remanded to the trial judge or whether this Court can itself reform the award. This is not a new problem in this Circuit. In United States v. Compania Cubana De Aviacion, S.A., which was likewise a wrongful death action heard without a jury under the Federal Tort Claims Act, we raised two awards by $10,000 each because the Court, after reading the record, was left "with the definite and firm conviction that in making [the awards] the district judge misapprehended the law or the evidence or both." While agreeing with the government that, under the Florida decisions there applicable, "no fixed pattern [for awards] may be set, no rule of thumb measurement employed, and that the district court has wide discretion in reaching an informed judgment in cases of this kind," we were nonetheless "of the opinion that in making the awards in these cases the district judge has measured over meagerly, has too greatly minimized the favorable, too greatly manified the unfavorable, considerations controlling here and that, if his judgments were reformed to award in the deSalas case $25,000 and in the Pacheco case $30,000, they would more nearly approximate what is right and just under the evidence in this case." 224 F.2d at 823-824.

Where there are firm guidelines establishing the basic elements of the award and it can be computed with some degree of certainty as easily by the appellate court as by the trial judge, it would be mere wasted motion to remand the cause for new findings. Thus the Ninth Circuit, in raising a judgment from $12,525.05 to $35,092.05 for damages incurred as a result of a subcontractor's default, stated:

"As a further preliminary statement to our discussion of this case we observe that ordinarily we would remand the matter back to the trial judge for more explicit findings. However, as this case is now before us we feel that we are in as good a position to determine the issues involved on the record before us as would be the trial judge on remand. Those issues arise out of and are concerned with figures and arithmetical calculations. In view of the foregoing, and to the end that useless motion and delay be eliminated we will determine the case at this time on its merits, being of the opinion that no good would be served by directing a remand for further and more specific findings." Dale Benz, Inc., Contractors v. American Casualty Co., 9 Cir., 1962, 303 F.2d 80, 82.

In the present case, we do have guidelines which permit us to arrive at an award with some degree of assurance. The trial judge, in his discretion, assigned no monetary value to the loss of Mrs. Simpson's counsel and advice and other farming or household activities which produce no actual cash income. Insofar, therefore, as the award was to be based only upon the loss of monetary income - and this confined strictly to what was legally Mrs. Simpson's - we have as complete a record before us as the trial judge and have been able to make the same mathematical calculations. As we indicated above, the minimum award which is consonant with the pecuniary benefits the plaintiff might reasonably have expected to receive is $27,000. The trial judge allowed $2,317.75 for funeral expenses which are uncontested. The cause is therefore remanded with directions to enter judgment for $29,317.75.


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