Kalodner, Chief Judge and McLaughlin and Ganey, Circuit Judges.
On December 9, 1964, we affirmed, at 342 F.2d 232, the Judgment of the District Court in favor of the libellants and against the respondent on the issue of liability, and remanded the cause "with directions to grant a new trial restricted to the issue of damages in accordance with the opinion of this Court."
We premised the remand on our holding that the District Court had erred in fixing damages*fn1 in the respect that after having made the fact-finding that the libellants' decedent had "a life expectancy of 20 years during which time I conclude he would have worked actively ", it had only allowed damages for a 15-year period on its further fact-finding that the decedent "would probably have had no net income" during the first five years of his 20-year life expectancy. We ruled that fact-finding "was without evidential basis and wholly speculative and was therefore 'clearly erroneous,'" and that, moreover, the District Court had "disregarded" and "simply overlooked" testimony that the decedent would have earned "eighty-some thousand dollars" a year during the disallowed 5-year period. 342 F.2d 232, 239-240.
We also called attention to the fact that in finding that the decedent's total earnings during the five years preceding his death aggregated $348,000, the District Court had failed to include an additional $70,000 received by the decedent during that period, making the total of his earnings $418,000 and not $348,000.
In discussing the District Court's disposition on damages we pointed out that "the trial court in its fact-findings spoke of 'net income' and 'net earnings'" and that "the Death on the High Seas Act allows as damages 'fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought,'" and that "'pecuniary loss' is not measured in terms of, nor restricted to, 'net income' or 'net earnings.'"
We further stated that "it is not apparent from the trial court's opinion as to whether it disallowed or took into consideration" as an item of damages, interest for the seven-year period between the date of the decedent's death on June 20, 1956, and July 31, 1963, when judgment was entered in the sum of $387,387*fn2 and that the item of interest "should have been a factor in fixing damages" under the provisions of the High Seas Act, 46 U.S.C.A. 761, et seq. 342 F.2d 232, at 240.
Following the remand, counsel for the parties at a conference with the District Court on April 7, 1965, advised it that they did not desire to offer further evidence, and they then agreed that there remained only "the submission by each side of proposed findings of fact on the five years that are to be dealt with," pursuant to this Court's opinion.
The District Court, on July 15, 1965 entered a Decree, pursuant to an Opinion filed June 29, 1965, making a gross award of $492,500 to the libellant. The Opinion and Decree allocated $433,400 to the decedent's widow; $37,500 to his daughter Marsha, and $17,500 and $4,100, respectively to his daughters Sharon and Patricia. The damages awarded were stated to include "prejudgment interest at 4%."
The District Court's opinion stated that "In reestimating the damage figure, I bear in mind that in addition to Noel's annual earnings for the years 1951-1955, he earned $70,000 in consulting fees during this same period, that there was testimony by Frantz as to probable future earning capacity of from $100,000-$125,000 annually (including approximately $80,000 from the Venezuelan venture), that the disallowance of any earnings therefrom for the first five years amounted to sheer speculation, and that there is a difference between net income and 'fair and just compensation for the pecuniary loss. . . .'"
Libellants contend on this appeal that the District Court "violated" the scope of the remand in that it did not limit its consideration to the directed instructions in our Opinion, viz., allowance of damages, based on "pecuniary loss," for the five-year period which we had found it had erroneously disallowed at the first trial, and to the allowance of prejudgment interest from the date of the decedent's death on June 20, 1956. They also urge that the District Court further "violated" our mandate that it "capriciously disregarded its own prior findings as to the health expectancy of the deceased and the contributions the deceased would have made during the last fifteen years of his life expectancy." They say with respect to the expectancy aspect that while the District Court at the first trial had made the specific fact-finding that the decedent had "a life expectancy of 20 years during which time I conclude he would have worked actively,"*fn3 it found on the remand that he did not have such an expectancy, and that this finding resulted in a drastic and unjustified downgrading of the quantum of the libellants' pecuniary loss. They also say that the stated premise of the District Court's present finding that the decedent did not have a "good health" expectancy for 20 years, viz., that "on one occasion, due to extreme obesity and overwork, he had been ordered to take a 4 to 6 months vacation from work" and "this situation might . . . recur again on more than one occasion with consequent severe loss of earning power," had been considered by the District Court at the first trial and had then been assigned by it as the basis of its rejection of testimony that the decedent had a life expectancy of 25 years, and its fact-finding that he would only have had a 20-year expectancy during which "he would have worked actively."
In reply, the respondent urges in sum that the District Court was free, and indeed "required" to make a wholly new determination with respect to the overall issue of damages, and that it did not accordingly "violate" the mandate of this Court.
We do not subscribe to the respondent's contention.
It is settled that a trial court cannot deviate from the mandate of an appellate court. Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 92 L. Ed. 1403, 68 S. Ct. 1039 (1948), and that where a reviewing court in its mandate prescribes that the lower court should proceed in accordance with the opinion of the reviewing court, such pronouncement operates to make the opinion a part of the mandate as completely as though the opinion had been set out at length. Federal Home Loan Bank of San Francisco v. Hall, 225 F.2d 349, 370-371, note ...