Dobson v. Bacon Transport Co.

• Decision Date: 23 October 1979
• Docket Number: No. 79-1166,79-1166
• Parties: Mrs. Amy DOBSON, Individually, and as Administratrix of the Estate of Floyd Dobson, Jr. and as next friend of Monte Dobson, a minor, and Lloyd Dobson and Jerry Dobson, Appellants, v. BACON TRANSPORT COMPANY and Donald L. Kreger, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 805

607 F.2d 805

Mrs. Amy DOBSON, Individually, and as Administratrix of the Estate of Floyd Dobson, Jr. and as next friend of Monte Dobson, a minor, and Lloyd Dobson and Jerry Dobson, Appellants, v. BACON TRANSPORT COMPANY and Donald L. Kreger, Appellees.

No. 79-1166.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1979.

Decided Oct. 23, 1979.

Nicholas H. Patton, Young, Patton & Folsom, Texarkana, Ark., and Michael W. Perrin, Fisher, Roch & Gallagher, Houston, Tex., filed brief for appellants.

Victor Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, Tex., filed brief for appellees.

Before BRIGHT and HENLEY, Circuit Judges, and REGAN, Senior District Judge. ^*

HENLEY, Circuit Judge.

In this wrongful death action, the wife (administratrix), minor son, and adult sons of the deceased brought suit to recover damages allegedly sustained as a result of the death of Floyd Dobson in a traffic accident. The accident occurred as the deceased, traveling in the eastbound lane of U. S. Highway 70, began to slow down and move off the road. Before the deceased had completely left the highway, a tractor-trailer driven by Donald L. Kreger, an employee of Bacon Transport Company, tried to pass the Dobson vehicle in an authorized passing zone. But as Kreger maneuvered into the westbound lane, deceased initiated a left hand turn towards a gravel road to the north. This maneuver placed the Dobson vehicle directly in the path of Kreger's tractor-trailer and the collision resulted in the death of Floyd Dobson and his passenger.

In the legal action that followed, the appellants brought suit against the driver, Donald L. Kreger, as well as his employer, Bacon Transport Company, for mental anguish sustained as a result of defendants' negligence. The district court, however, directed a verdict against the adult sons of the deceased, and entered judgment, based on jury findings, against the remaining plaintiffs. On appeal plaintiffs contend that the district court erred in granting the directed verdict and in giving allegedly repetitious and prejudicial jury instructions.

In determining whether a trial court erred in issuing a directed verdict, we note at the outset that both this court and the Arkansas courts review the record under the well established principle that the evidence must be considered in the light most favorable to the nonmoving party and he must be given the benefit of all legitimate inferences. Compare Parker v. Seaboard Coastline R.R., 573 F.2d 1004, 1007 (8th Cir. 1978); Lisa-Jet, Inc. v. Duncan Aviation, Inc., 569 F.2d 1044, 1046 (8th Cir. 1978); Barclay v. Burlington Northern, Inc., 536 F.2d 263, 267 (8th Cir. 1976); With Love v. H. F. Constr. Co., 261 Ark. 831, 552 S.W.2d 15, 17 (1977); Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307, 309 (1969). A directed verdict should be upheld if the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion. Parker, supra, 573 F.2d at 1007. ¹

Applying these principles to the present case, we are satisfied that the district court did not err in directing a verdict against the adult sons of the deceased. It seems to be conceded that under Arkansas law, plaintiffs may only recover for mental anguish in this wrongful death action if they show that they have suffered "more than normal grief." Vickers v. Gifford-Hill & Co.,534 F.2d 1311 (8th Cir. 1976); Missouri Pac. R.R. v. Ward, 252 Ark. 74, 477 S.W.2d 835 (1972). ²

Appellants contend that evidence of the close and continuous relationship between the deceased and the adult sons as well as the sorrow exhibited by the adult sons two years after their father's death was sufficient to warrant jury consideration of whether they suffered "more than normal grief." Because the adult sons were financially independent, the decedent had no legal obligation to support the adult sons, and the sons had not truly demonstrated that they suffered greater than normal grief due to the loss of their father, the district court directed a verdict in favor of defendants. We have carefully reviewed the record and find no evidence to support the appellants' claim that the adult sons made out a prima facie case of compensable mental anguish or that the district court improperly directed a verdict.

We are also unpersuaded by appellants' contention that even if the adult sons did not establish "more than normal grief," the trial judge should not have directed a verdict against the adult sons prior to the submission of the claims of the remaining plaintiffs to the jury. Appellants argue that this action prejudiced the jury by creating an inference that the remaining claims had no merit.

We note that the trial judge has traditionally been accorded broad discretion in the conduct of his trial and that an appellate court will not retroactively substitute its discretion for that of the trial judge unless there has been a showing of abuse of discretion. Aetna State Bank v. Altheimer, 430 F.2d 750 (7th Cir. 1970); Skogen v. Dow Chem. Co., 375 F.2d 692 (8th Cir. 1967). We will not speculate that granting a directed verdict adversely affected the claims of the other plai...