On Petition for Rehearing.
We have given thought to an earnest petition for rehearing in which appellees urge certain further considerations in the hope that they will persuade us to alter the conclusion we arrived at in our opinion handed down October 31, 1955. Appellees are realistic enough not to overstate their arguments to the extent of suggesting that our previous conclusion was inescapably and palpably in error in respect to the proper interpretation to be ascribed to the regrettably cloudy phraseology of the 1947 amendment to the Federal Tort Claims Act. In our opinion we stated that we were called upon “to ascertain the ‘intention of Congress,’ as the saying goes, in a matter with respect to which, unfortunately, the Congress has not expressed its intention with the clarity and precision which might be desired.” We pointed out that, both under the original terms of the Act and under the Act as amended, it was the basic scheme of the Federal Tort Claims Act not to enact a new comprehensive code of tort liability of the United States, but merely to withdraw the defense of sovereign immunity and to permit a recovery against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”, the United States to be held liable, in general, “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. §§ 1346(b), 2674. All we did was to reach a conclusion consistent with that basic pattern of the Act, in so far as the Act contained no explicit command to the contrary.
Suppose this accident had taken place in Illinois and suit had been brought against the United States based upon the Illinois Death Act, providing: “ * * * and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person * * * *392not exceeding $20,000 * * 111. Rev.Stat.1953, ch. 70, § 2. It would be conceded there that though the next of kin might be found to have suffered pecuniary damages to the extent of $60,-000, nevertheless the United States could not be held for more than $20,000. Similar maximum limits of recovery are specified in the statutes of about a dozen states whose Death Acts predicate liability upon a compensatory basis, and if any other of the 46 states whose Death Acts are similarly based should in the future insert a maximum monetary limit on recovery, then automatically the United States, if otherwise liable under the Federal Tort Claims Act, would be liable only up to the stipulated maximum. The policy of placing such a maximum limit upon recovery may be open to question, but the wisdom of such policy is for the local legislatures. Obviously the Congress did not concern itself with that. It was content that the United States should be subject to liability only to the top limit of recovery permitted by the local law as against a private employer under like circumstances. See Eastern Air Lines v. Union Trust Co. (United States v. Union Trust Co.) 1955, 95 U.S.App.D.C. 189, 221 F.2d 62, 80, affirmed on other grounds 76 S.Ct. 192.
It taxes our credulity to suppose that Congress, in enacting the 1947 amendment to permit recovery in Massachusetts and Alabama while assuring that damages against the United States under their acts should not be assessed on a punitive basis, intended thereby to compel the result that, in Massachusetts alone of all the states whose respective Death Acts contain a maximum limit of recovery, the United States might be held liable in an amount in excess of the maximum limit of recovery permitted against a private employer. In our original opinion we showed how full effect could be given to the purpose of the 1947 amendment, without at the same time reaching this surely unintended result.
We are well aware how far the peculiar terms of the Massachusetts Death Act, G.L.(Ter.Ed.) C. 229, § 1 et seq., as amended, depart from the conception of the original Lord Campbell’s Act, 9 & 10 Viet. C. 93. In Massachusetts, without regard to whether the next of kin suffered any pecuniary loss, and if they did, without regard to the extent thereof, a person who by his wrongful act, or by the wrongful act of his agents or servants while engaged in his business, causes the death of a person is subject to liability for “damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort.” The Supreme Judicial Court has recognized that the damages are thus to be assessed on a punitive basis, though the act may also serve a compensatory purpose in that the money is to be paid to the next of kin who, to the extent that they in fact suffered some pecuniary damages, are thereby recompensed in whole or in part for such loss. See Macchiaroli v. Howell, 1936, 294 Mass. 144, 146-147, 200 N.E. 905; Sullivan v. Hustis, 1921, 237 Mass. 441, 447, 130 N.E. 247, 15 A.L.R. 1360.
Appellees are quite inaccurate in their assertion that there is no maximum on the recovery for wrongful death in Massachusetts. This is belied by the very terms of the Massachusetts Death Act. What appellees evidently have in mind is quite a different thing, namely, that where two (or more) wrongdoers concur in proximately causing a single death, the personal representative of the decedent has a statutory cause of action against each individual wrongdoer which may proceed to judgment and satisfaction without reference to the other, and collection of the judgment against one wrongdoer does not extinguish pro tanto the liability of the other. This is because the statutory purpose was to impose punishment upon each wrongdoer on the basis of the degree of his personal culpability. See Porter v. Sorell, 1932, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159. As the court further explained in Arnold v. Jacobs, 1944, 316 Mass. 81, 84, 54 N.E.2d 922, 923: “The statute, fol*393lowing a pattern familiar in criminal and penal provisions, limits the penalty that can be imposed upon one person for causing one death. It does not limit the amount that can be collected from a number of wrongdoers for one death. Logically, as in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty.”
But it is to be noted that if the two negligent actors whose concurring negligence causes a single death are each at the time acting in the scope of their employment for a common employer, then presumably the common employer could be liable only to a single maximum of $20,000, for, by the very terms of the Massachusetts Death Act, “a person who by his negligence * * * or by the negligence * * * of his agents or servants * * * causes the death of a person * * * shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants * * *.” Mass. G.L.(Ter.Ed.) C. 229, § 2C, as amended. In other words, “a person,” a single employer, who by the concurring negligence of no matter how many of his servants has caused the death of a person, is subject to but a single action of tort by the personal representative of the decedent, in which the maximum limit of recovery is $20,000.2
Though the facts of the instant case do not present the situation, we shall allude briefly to the possibility that a single culpable act might cause the death of two or more persons. Since the Massachusetts act is expressed in the singular, imposing a tort liability of from two to twenty thousand dollars whenever the wrongful act of “a person” causes the death of “a person,” it seems that the personal representative of each decedent has a wholly separate and independent cause of action against the wrongdoer, or his employer, for recovery of damages up to a maximum of $20,000. We take it that that is what was meant by the Supreme Judicial Court when it said, in Arnold v. Jacobs, 1944, 316 Mass. 81, 84, 54 N.E.2d 922, 923, that the Massachusetts Death Act “limits the penalty that can be imposed upon one person for causing one death.” In such a case, if several separate suits were brought against the United States, each suit would have to be disposed of as we think the case at bar must be disposed of — that is, the court would have to assess the pecuniary damages suffered by the next of kin of each decedent; where such damages are less than $20,000, the lesser amount so assessed is all that the particular plaintiff can recover from the United States; but where such damages are in excess of $20,000 the amount of recovery by the particular plaintiff must be scaled down to the statutory maximum of $20,000.
Appellees argue that when Congress in 1947 rejected the Massachusetts method of assessing damages on a penal basis, “it necessarily also rejected the limitations of minimum and maximum imposed solely under penal concepts. If it should be said that the Amendment, has rejected the minimum, then how can we reasonably say that the maximum is not likewise rejected?” We agree that the 1947 amendment has rejected the $2,000 minimum in the Massachusetts act, for if the death of a person entailed *394no economic loss to the next of kin, then to hold the United States liable for the $2,000 minimum would be imposing to that extent a purely punitive liability, which the Congress has expressly forbidden. 28 U.S.C. § 2674. But it does not follow that the maximum recovery permitted by the Massachusetts act should also be disregarded when the total pecuniary damages to the next of kin may be in excess of that amount. Appellees ask: “Can it be said that if Massachusetts had a purely compensatory death statute at the time of the accident that it would necessarily have included in such statute the same maximum limit of recovery as had been established as a punishment? Is this assumption not at best conjectural and in fact unlikely?” It can be answered that that is exactly what the Massachusetts legislature did, during the brief period in which its Death Act assessed damages on a compensatory basis. Compare Mass. Acts 1947, C. 506, § 1A, with Mass. Acts 1949, C. 427, § 3. Furthermore, the important thing is that Massachusetts chose to impose a maximum limit upon the liability of a private employer in a wrongful death case, not why it chose to do so.
It is suggested by appellees that we ignored “the vitally applicable aspects of government employee morale referred to in United States v. Gilman, 347 U.S. 507 [74 S.Ct. 695, 98 L.Ed. 898].” In the Gilman case the Supreme Court held that the United States, having been held liable under the Federal Tort Claims Act, could not maintain an action for indemnity against the negligent government employee; in the absence of a command from the Congress in- that respect, the Court thought it should not adopt and apply in favor of the United States, as a federal decisional rule, the common law rule that an employer held liable on the doctrine of respondeat superior for the tort of a servant is entitled to collect indemnity from the servant whose breach of duty to the employer cast that liability upon him. In the Supreme Court opinion reference is made to the improvement in employee morale which was expected to result from an enactment that would offer a liability of the United States for the torts of its agents or servants, with a provision that a judgment against the United States under -the Act would thereby extinguish the private tort liability of the government employee to the victim. No doubt such contribution ■to governmental employee morale was contemplated by the sponsors of the legislation as an incidental by-product. But the emphasis in the committee reports ■is on the elimination of the recognized inequity of governmental immunity in this field and on saving the Congress from the burden of processing so many private bills for relief.
At any rate, the Federal Tort Claims Act does not undertake to relieve the anxiety of the wrongdoing employees by directly extinguishing whatever causes of action may have been created by local law against such employees. Presumably Congress could not constitutionally do this. What it did do, in effect, was to offer to the injured person an alternative remedy against the United States, subject to the condition that, if the plaintiff should choose to pursue that remedy to judgment against the United States, he would thereby relinquish his claim against the employee. But the plaintiff remains free to pursue the employee rather than the United States; and in some eases he might find it expedient to do so, where the employee is able to respond in damages or is adequately insured, instead of suing the United States in a federal district court sitting without a jury. So far as concerns the peculiar situation in Massachusetts with reference to wrongful death, it might well be preferable for the plaintiff to sue the employee, with the possibility of recovering $20,000 on a punitive basis, rather than to sue the United States, against whom he might recover nothing, if he was unable to prove any pecuniary damages. See Heath v. United States, D.C.N.D.Ala. 1949, 85 F.Supp. 196. And in the situation where a death has been caused by *395the concurring wrongful acts of several employees of the United States, it might be expedient for the plaintiff to pursue his separate actions of tort against each of the wrongdoers, for under Porter v. Sorell, 1932, 280 Mass. 457, 182 N.E. 837, he would have the possibility of recovering and collecting in the aggregate a maximum of $20,000 from each wrongdoer, whereas if he enforced his single action of tort against the United States as the common employer he would recover only such damages as he might prove of a pecuniary nature, which in any event could not exceed the maximum of a single $20,000 judgment.
On the whole, we do not perceive that either the holding or the language in United States v. Gilman, 1954, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898, has much bearing on the case at bar.
Some point is made by appellees based on the assumption that the Federal Tort Claims Act as now interpreted “allows an employee to interplead the United States as a party defendant in a State Court action,” citing United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. We are not sure that we understand the point ap-pellees are trying to make in this connection; but in any event the assumption upon which the argument is based is wholly mistaken. United States v. Yellow Cab Co., supra, did not decide that the government employee sued in a state court action could “interplead” the United States as a defendant therein. This could not be, because under the Federal Tort Claims Act the United States has consented to be sued only in a federal court, without a jury. In United States v. Yellow Cab Co., the legal representative of a decedent had brought suit in a federal court against the Yellow Cab Co. for damages attributable to a death which may have been caused by the concurrent wrongful acts of a servant of the cab company and of an employee of the United States. The Supreme Court held that the waiver of governmental immunity was broad enough to permit the Yellow Cab Co. to implead the United States as a defendant in that action in the federal court, to enforce whatever right to contribution the company might have had under the local law against the United States as a joint tortfeasor. But though United States v. Gilman, supra, has held that the United States, after being subjected to liability under the Federal Tort Claims Act, cannot sue its negligent employee for indemnification, it certainly does not follow that the government employee, if sued in the federal court in a diversity case, could implead the United States and insist that the United States as his employer must indemnify him from the consequences of his own wrongful act.
Finally, appellees argue that the interpretation which we have put upon the Federal Tort Claims Act, as amended, presupposes that the Congress attempted in the 1947 amendment to reject the entire Massachusetts Death Act “with the sole exception of the maximum because that alone is favorable to the United States.” Of course the Congress did not attempt to reject the whole of the Massachusetts Death Act. In fact it is only by virtue of the Massachusetts Death Act that the United States may be liable at all for the wrongful death in Massachusetts. If the Massachusetts legislature should repeal its whole act, the United States would be under no liability, since the United States, if a private person, would not then be “liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). As we said in our original opinion: “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.”
*396After full reconsideration of the case, in the light of the petition for rehearing, we are satisfied that our original disposition was correct.
The petition for rehearing is denied.
. This point is not presented for decision in the present case. Though the complaint charged negligent acts on the part of several government employees at the Watertown Arsenal, the findings of the district court pinned liability on the United States only on the basis of the wrongful acts of a single employee. Of course it would be a matter of local law what the maximum recovery could be against a private employer when the concurring negligence of two or more of his servants causes a death. If the Massachusetts courts, contrary to what seems to be the effect of the state act, should hold that a private employer in such a case might be liable to a maximum of $20,000 for each servant of his guilty of actionable negligence, the only result would be, on our theory, that the same maximum limit would be applicable to the liability of the United States under like circumstances.