Taylor v. Pre-Fab Transit Co., PRE-FAB

• Decision Date: 05 March 1980
• Docket Number: No. 79-1133,PRE-FAB,79-1133
• Citation: 616 F.2d 374
• Parties: Danny Varlon TAYLOR and Norma Jean Taylor, Appellees, v.TRANSIT CO., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 374

616 F.2d 374

Danny Varlon TAYLOR and Norma Jean Taylor, Appellees, v. PRE-FAB TRANSIT CO., Appellant.

No. 79-1133.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1979.

Decided March 5, 1980.

William H. Kennedy, III, Rose, Nash, Williamson, Carroll, Clay & Giroir, Little Rock, Ark., argued, Webb Hubbell, Little Rock, Ark., on brief, for appellant.

Bernard Whetstone, Whetstone & Whetstone, Little Rock, Ark., for appellees.

Before BRIGHT, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

Defendant-appellant Pre-Fab Transit Co. appeals from a judgment of the United States District Court for the Eastern District of Arkansas awarding plaintiff Danny Varlon Taylor $95,786.31 for his injuries and plaintiff Norma Jean Taylor $2,500.00 for loss of consortium. On appeal defendant does not question liability, but rather argues that the award to Danny Varlon Taylor is excessive and based on speculation and sympathy.

On July 22, 1976 plaintiff Danny Varlon Taylor was injured in a traffic accident while riding as a passenger in a truck owned by his employer, the Jackson Cookie Company. The accident occurred when a truck driven by Thomas Beck, while in the course and scope of his employment with the Pre-Fab Transit Co., struck the rear of the Jackson Cookie Company truck. As a result of the collision plaintiff Taylor was thrown about the vehicle and hit his head on the windshield. Although property damage was minor, Taylor was taken by ambulance to a nearby hospital where he was examined and released. Later, however, Taylor experienced neck pain due to the accident and had to return to hospitals on three separate occasions for additional care as well as various tests including a myelogram and an electromyogram.

At trial Taylor testified that he has suffered constant pain as a result of the accident. Further, Taylor's physician, an orthopedic specialist named Thomas Rooney, testified by deposition that an electromyogram test revealed that the accident caused a nerve irritation problem known as a "cervical disc syndrome" probably resulting from a bulging or ruptured disc in his neck. Dr. Rooney also testified that plaintiff had a functional disability of 10% in the use of his neck and it was concluded that Taylor's condition and the resultant pain would likely be permanent.

Taylor's condition since the accident has not only caused him discomfort, but also has affected his work performance. At the time of the accident, Taylor was earning $178.00 a week and had worked steadily for the Jackson Cookie Company for a year and a half after previous employment for two years with another company. Since the accident, however, Taylor has become an undependable employee, not due to lack of motivation, but rather to the pain he experiences as a result of the accident. Moreover, Taylor has missed many days of work because of his neck problem. The parties stipulated that Taylor missed seven weeks of work in 1976 (a loss of $1,246.00 income to Taylor), forty weeks of work in 1977 (a loss of $7,120.00), and eight weeks of work in 1978 (a loss of $1,424.00).

Following a bench trial at which these facts were developed, the district court, as indicated, awarded damages in the amount of $95,786.31 to plaintiff Danny Varlon Taylor and damages in the amount of $2,500.00 to plaintiff Norma Jean Taylor, plus interest and costs.

On appeal defendant contests the overall size of the damage award and also argues that certain items which comprise the district court's total award, namely damages in the amount of $6,994.97 for future medical expense, $9,790.00 for lost past wages, $54,082.75 for lost future income, and $15,000.00 for pain, suffering and mental anguish, are excessive and completely unsupported by the evidence.

It is well established that the amount of damages in a nonjury case is within the discretion of the trial court and cannot be overturned unless clearly erroneous. Hysell v. Iowa Public Service Co., 534 F.2d 775, 786 (8th Cir. 1976); Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242-43 (8th Cir. 1971). See generally, 6A J. Moore, Federal Practice § 59.05(3) at 59-68 (2d ed. 1974). Indeed, an appellate court will not reverse the trial court findings unless it is "left with the definite and firm conviction that a mistake has been committed." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), quoting United...