have told the master to do just what he did.
The administratrix is entitled to maintain this action, but the question remains: Upon whose behalf?
She claims in her own right, as widow, but I think that it is clear that she never was legally married to the deceased seaman. She first met him in the early part of 1943. At that time she had a husband, a man named Bochiccio, whom she had married a few months before she met Tetterton, who had been sent to jail for some offense, shortly after her marriage to him. In spite of her testimony that she relied upon advice given her by a patrolman on the beat to the effect that Bochiccio's jail sentence dissolved their marriage, I think she was fully aware that she could not legally marry another.
In June of 1943 Tetterton telephoned her from Florida and told her 'you don't really have to be married down here to live as husband and wife.' As a result she went to Florida and entered into a compact of some kind with him. Whether the parties really believed that they were making a valid marriage or intended to do so is doubtful. I think it is more likely that Maria understood no more than that she and Tetterton could live together in Florida without violating any law.
However, assuming that what they accomplished would have been a valid common-law marriage under the law of Florida if there had been no disability by way of Maria's existing marriage, she still did not become at any time a legal wife. She obtained an annulment of her marriage to Bochiccio in 1948. Such a decree did not relate back so as to validate an attempted subsequent marriage entered into by one of the parties prior to the rendition of the decree, 55 C.J.S., 'Marriage', § 68. There are decisions which hold that where parties to an agreement, which but for the existence of an impediment would have constituted a valid marriage, continue in the relationship in good faith, on the removal of the impediment, the law will establish a valid common-law marriage. The decisions cited by the libellant however agree that the common-law marriage so established dates from the removal of the impediment. The difficulty with the libellant's position in this respect is that when the impediment was removed she was, and has been ever since, domiciled in New York and New York does not recognize the validity of a common-law marriage entered into in that State since 1933. There is no proof that Maria and Tetterton were domiciled at any time in any state which permits common-law marriages. Virginia, where she and Tetterton visited his relatives, does not.
The father is clearly a party entitled to damages under the statute and I am of the opinion that the child, Diana, is also entitled. Middleton v. Luckenbach S.S. Co., Inc., D.C., 70 F.2d 326. The Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., being applicable to this action, recovery for pecuniary loss by the daughter does not exclude recovery of his loss by the father.
In allowing damages, one very important factor is that this is the case, not of a normal person but, of one suffering from a mental illness, the extent and probable duration of which is impossible to determine, one phase of which was suicidal. It is obvious that the probable earning capacity of such a man will be far below that of a normal individual.
I find that the daughter, Diana, has suffered pecuniary loss by reason of Tetterton's death in the amount of $ 4,000.
I find that the father, Claude Tetterton, has suffered pecuniary loss in the amount of $ 2,000.
I allow the sum of $ 2,000 for pain and suffering.
A decree may be entered in accordance with the foregoing against Arctic Tankers, Inc., and United Tankers Corporation and dismissing the libel against Sieling & Jarvis Corporation and Mathiasen's Tankers Industries.
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