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 *135that 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 *136manner 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 *137statute 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 achieved 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.
*138I think, therefore, that recovery of actual compensatory damages is, in this case, in full accord with the philosophy of the Tort Claims Act.
227 F. 2d 385, 391.