Guyton v. Solomon Dehydrating Company
Decision Date | 04 May 1962 |
Docket Number | No. 16885.,16885. |
Citation | 302 F.2d 283 |
Parties | Dolly GUYTON, Appellant, v. SOLOMON DEHYDRATING COMPANY, Incorporated, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Warren C. Schrempp, of Schrempp & Lathrop, Omaha, Neb., and Henry C. Rosenthal, Jr., Omaha, Neb., on the brief, for appellant.
Kenneth H. Dryden, Kearney, Neb., for appellee.
Before VOGEL and RIDGE, Circuit Judges, and DEVITT, District Judge.
Dolly Guyton, plaintiff-appellant, brought this action against Solomon Dehydrating Company, Inc., defendant-appellee, to recover money damages because of her loss of the right to her husband's society, companionship, consortium and services. The husband, Clarence R. Guyton, was seriously injured as the result of an accident between a Greyhound Bus which he was driving and a truck driven by an employee of the Solomon Dehydrating Company, Inc. See Solomon Dehydrating Co. v. Guyton, 8 Cir., 1961, 294 F.2d 439, certiorari denied 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192. Plaintiff's complaint herein with reference to liability alleged:
The trial court granted the motion dismissing plaintiff's complaint but wrote no opinion and failed to indicate the reasons or grounds therefor.
In appealing from such dismissal, counsel for the plaintiff, not being certain as to the basis therefor, suggest that two possible facets may have been raised: (1) That the manner of pleading liability on the part of the defendant was thought to be inadequate or insufficient; and (2) that a wife's claim for loss of consortium was thought not to be enforceable under the laws of Nebraska. With reference to the latter point, however, counsel direct attention to the fact that, the Supreme Court of Nebraska not having spoken on the subject, the late Chief Judge Donohoe in Cooney v. Moomaw, D.C.Neb., 1953, 109 F.Supp. 448, 450, after an exhaustive review and analysis of the law of Nebraska, concluded that:
"* * * consistency within the state would seem to indicate that Nebraska would allow the wife, as well as the husband, a right of action for loss of consortium."
Of course, Judge Donohoe, as a federal judge, could not authoritatively say with exactitude what the law of Nebraska was. He, nevertheless, in the absence of an expression from the Nebraska courts, had the right — and it was his duty — to express his views as to what the Supreme Court of Nebraska would hold if and when the legal question were presented to it. Judge Donohoe's statements in Cooney v. Moomaw, supra, have been considered as representing a correct statement of the law of Nebraska. This court followed such holding and, speaking through Judge John Sanborn in Luther v. Maple, 8 Cir., 1958, 250 F.2d 916, said at page 922:
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