McCandless v. Beech Aircraft Corp.

• Citation: 779 F.2d 220
• Decision Date: 10 December 1985
• Docket Number: No. 84-1621,84-1621
• Parties: Ouida McCANDLESS, et al., Plaintiffs-Appellants Cross Appellees, v. BEECH AIRCRAFT CORPORATION, Defendant-Appellee Cross Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 220

779 F.2d 220

Ouida McCANDLESS, et al., Plaintiffs-Appellants Cross Appellees, v. BEECH AIRCRAFT CORPORATION, Defendant-Appellee Cross Appellant.

No. 84-1621.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 1985.

John Howie, Darrell Panethiere, Dallas, Tex., for plaintiffs-appellants cross appellees.

R. Brent Cooper, Michael W. Huddleston, Dallas, Tex., for defendant-appellee cross appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before: GARZA, JOHNSON and JERRE S. WILLIAMS, Circuit Judges.

GARZA, Circuit Judge:

This appeal stems from a wrongful death action brought by the widow and surviving adult children of John T. McCandless. McCandless, a fifty year-old student pilot, was killed while flying a single-engine airplane on January 12, 1979, near Acuff, Texas.

At the time of the accident, McCandless owned and operated or had acquired interests in several businesses, including a ranching operation, a cattle sale barn, a cattle feed lot and an aviation school. The testimony at trial indicates that the McCandless family had been a close, tightly-knit family unit and that John T. McCandless had acquired each of his businesses for the benefit of his children. In fact, on the date of his accident, McCandless had acquired an interest in "Sandene Aviation" with the intention of providing his youngest son, Louis T. McCandless, with a business following college.

It appears from the testimony that McCandless purchased a Beech Baron 95-B55 airplane in December 1978. On January 12, 1979, McCandless left home to take his "check ride," a test by which a student pilot attains a pilot rating. James A. Ridpath, a designated pilot examiner, accompanied McCandless to supervise the check ride. At or about 3:10 p.m. the plane crashed; both McCandless and Ridpath were killed.

The plaintiffs, Ouida McCandless and her children, brought suit in diversity against Beech Aircraft Corporation ("Beech"). The plaintiffs alleged that Beech designated, manufactured, tested, sold, and delivered the airplane in question in a defective and dangerous condition. A jury trial was had and a verdict rendered against Beech. The verdict apportioned comparative causation ¹ of 90 percent to Beech, 10 percent to Ridpath and zero percent to McCandless. The jury awarded damages as follows:

The district court entered judgment against Beech for 90 percent of the damages found. ²

Beech subsequently filed a Motion for Judgment Notwithstanding the Verdict pursuant to Federal Rule of Civil Procedure 50(b). Beech claimed that there was no evidence offered at trial to support most of the jury's awards. Specifically, Beech argued that the plaintiffs failed to introduce any evidence of pecuniary loss; of physical injury or manifestation thereof that would entitle them to an award for mental anguish; and of loss of society and companionship sustained by all or some of them.

The district court, in its Order of May 24, 1984, granted Beech's motion with respect to the jury's award of $200,000 to Ouida McCandless for the loss of her husband's support and services and set aside the award. However, the court denied Beech's motion in every other respect. The plaintiffs appeal the district court's Order granting Beech's motion in part. Beech cross-appeals the court's Order denying its motion in part. We conclude that the district court erred in granting Beech's motion with respect to the jury's award to Ouida McCandless for the loss of her husband's support and services and in denying Beech's motion with respect to the jury's awards, as to all plaintiffs, for mental anguish and suffering.

Standard of Review

In a diversity case, state law determines the kind of evidence that must be produced to support a verdict; however, "the sufficiency or the insufficiency of the evidence in relation to the verdict is indisputably governed by a federal standard." Fairley v. American Hoist & Derrick Co., 640 F.2d 679, 681 (5th Cir.1981) (per curiam); Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 523 (5th Cir.1984). The standard of review for a motion for judgment n.o.v. "is firmly established in this Circuit." McCormack v. Noble Drilling Corp., 608 F.2d 169, 171 (5th Cir.1979). In determining whether a judgment n.o.v. should be granted,

the Court should consider all the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc) (footnote omitted).

See also, Thornton v. Gulf Fleet Marine Corp., 752 F.2d 1074, 1076 (5th Cir.1985); International Therapeutics, Inc. v. McGraw-Edison Co., 721 F.2d 488, 491 (5th Cir.1983).

A verdict must be supported by substantial evidence and may not rest on speculation and conjecture. Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir.1984); Fenner v. General Motors Corp., 657 F.2d 647, 651 (5th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In determining whether there was substantial evidence to support the jury's verdict, we are mindful that "our function is limited to determining whether there is a conflict in substantial evidence sufficient to create a jury question." Two Rivers Co. v. Curtiss Breeding Service, 624 F.2d 1242, 1249 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 348 (1981). See also, Crowe v. Lucas, 595 F.2d 985, 989 (5th Cir.1979) ("[A] court's task is not to re-evaluate the evidence to form its own conclusion regarding the correctness of the jury verdict. Rather, Boeing requires us to determine whether reasonable men could, on any theory submitted to the jury, have resolved the dispute as the jury did").

Evidence Supporting Ouida McCandless' Claim for Loss of Her Husband's Support and Services

The plaintiffs argue that more than adequate evidence of Ouida McCandless' economic loss was presented to the jury. However, our review of the record discloses only the testimony of one witness as bearing directly on the question of economic loss. Bundy Campbell, a rancher of forty years and a neighbor and friend of the McCandless family, testified that it would cost Ouida McCandless $50,000 to hire a "young boy" to replace the decedent. ³

The district court relied on Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117 (1959) in concluding that there was no "probative evidence to support the $200,000.00 award" to Ouida McCandless for the loss of her husband's support and services. In Bonney a self-employed watch repairman sustained injuries that included a partial loss of vision. The Supreme Court of Texas held:

[W]here a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible.... This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so.

Id. 325 S.W.2d at 121.

The court reversed the jury's award of $25,000 because Bonney failed to demonstrate "either the amount of [his] earnings or a monetary measure of his earning capacity prior to the injury." Id.

The plaintiffs contend that the district court erred in relying on Bonney and that the Texas Supreme Court's subsequent decision in King v. Skelly, 452 S.W.2d 691 (Tex.1970), is controlling. In King a self-employed contractor who was injured in an automobile accident did not offer any evidence concerning his earnings or profits prior to the accident. Nonetheless, the court held that evidence of what King could have earned in the employ of another constituted a sufficient monetary measure of earning capacity:

King's testimony shows that he could, by performing the same tasks in the employ of another which he performed while self-employed, earn from $14,000.00 to $17,000.00 per year. We hold that such evidence is a sufficient monetary measure of his earning capacity prior to the date of injury and meets the requirements announced in the Bonney case.

Id. at 694.

We think that King modifies Bonney insofar as a self-employed worker is concerned. Unlike King, the case at bar involves a wrongful death action rather than a suit for personal injuries. We conclude, however, that the cost of hiring another to perform the duties previously performed by the decedent follows from the holding in King. Thus, under our analysis of King, the plaintiffs have adduced probative evidence of Ouida McCandless' claim for loss of her husband's support and services.

We do not agree with Beech's assertion that it was necessary for the plaintiffs to call an expert witness who had been deposed or to introduce additional documentary evidence probative of Ouida McCandless' economic loss. While...