Foster v. Amcon Intern., Inc.

• Decision Date: 08 September 1981
• Citation: 621 S.W.2d 142
• Parties: Gayle E. FOSTER, Plaintiff-Appellant, v. AMCON INTERNATIONAL, INC., Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 142

621 S.W.2d 142

Gayle E. FOSTER, Plaintiff-Appellant, v. AMCON INTERNATIONAL, INC., Defendant-Appellee.

Supreme Court of Tennessee.

Sept. 8, 1981.

Joel Porter, Burch, Porter & Johnson, Memphis, for plaintiff-appellant.

Lee A. Hardison & David M. Cook, Hardison, McCarroll, Cook & Cannon, Memphis, for defendant-appellee.

OPINION

DROWOTA, Justice.

We granted plaintiff's application for permission to appeal in order to determine whether the actions of the trial court in granting an additur, and the Court of Appeals in reinstating the jury verdict, were proper. The jury returned a verdict for the plaintiff in the amount of $500.00. The trial judge on plaintiff's "Motion for a New Trial or an Additur" increased the jury verdict to $15,000.00. The Court of Appeals reversed the judgment of the trial judge and restored the judgment of the jury.

Plaintiff contends that she sustained injuries and damages as a result of a severe electric shock while cooking on her stove at her apartment, which was furnished and maintained by the defendant. Defendant contends that it was not guilty of any negligence and that plaintiff sustained no damages.

There was a serious dispute and a substantial conflict in the evidence with regard to the negligence of the defendant with respect to its maintenance of the stove; however, liability is not an issue on this appeal. The sole issue concerns damages. On the issue of plaintiff's pre- and post-accident mental condition and the presence or absence of a claimed traumatic neurosis, the opinions of plaintiff's and defendant's psychiatrists were conflicting. It is apparent that the trial judge and the jury did not agree as to the credibility of the witnesses in their assessment of plaintiff's damages.

We must first determine whether the actions of the trial judge were proper in suggesting a substantial additur. We have never before been called upon to approve an additur some thirty (30) times that of the jury's verdict. The trial judge in commenting on the jury's verdict at the hearing on the motion for a new trial stated that under the proof the jury found liability on the part of the defendant and that it was his feeling that the lower limits for a verdict in this case would be $15,000.00. In overruling defendant's motion to reconsider the suggested additur, the trial judge stated, "under the proof the verdict is grossly below the lower limits of reasonableness."

The additur statute, T.C.A. § 20-10-101, ¹ states that in cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff, the trial judge may suggest an additur. The statute sets out no guidelines for the trial judge to follow in granting an additur. It further states that if the Court of Appeals is of the opinion that the verdict of the jury should not have been increased or that the amount of the additur is improper, the Court of Appeals may order remitted all or any part of the additur. The statute imposes no standard of review upon the appellate courts.

As stated in Smith v. Shelton, 569 S.W.2d 421, 426 (Tenn.1978), "(f)inding no express statutory language and no legislative intent or purpose to impose a standard of review upon the appellate courts, it follows that the issue is controlled entirely by case law." ²

Our appellate courts have consistently held that the amount of compensation in a personal injury case is primarily for the jury, and that next to the jury, the most competent person to pass on the matter is the trial judge who presided at the trial and heard the evidence. ³ The reason for the rule was well stated in Cumberland Tel. & Tel. Co. v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (1903):

... the circuit judge hears the testimony, just as the jury does, sees the witnesses, and observes their demeanor upon the witness stand; ... by his training and experience in the weighing of testimony, and the application of legal rules thereto, he is especially qualified for the correction of any errors into which the jury by inexperience may have fallen, whereby they have failed, in their verdict, to reach the justice and right of the case, under the testimony and the charge of the court; ... in our system, this is one of the functions the circuit judge possesses and should exercise as it were, that of a thirteenth juror. So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence; and, if he is dissatisfied with the verdict of the jury, he should set it aside. ... It would be, say the authorities, a hazardous thing for this court to attempt to review at large the testimony of witnesses whose evidence was given orally in the court below, and to reverse the action of a judge and jury thereon, who had seen the witnesses, and had had the opportunity of observing their demeanor and manner of testifying. But this view is based not only upon the supposition that the jury had considered and passed upon the facts; but also that the parties have had the benefit of the trained intelligence of the circuit judge as well.

So, under our system of jury trials, the parties have the benefit, in the first instance, of the deliberations of the jury upon the facts, guided as to the law by the instruction of a trial judge learned in the law; next, on a motion for a new trial, or mero motu, the benefit of the deliberations of the circuit judge himself, upon the whole case, in determining whether the verdict of the jury shall stand; ....

112 Tenn. at 468-70, 79 S.W. 803.

It has thus been well established that a verdict of a jury is subject to the supervision of the trial court. The power of a trial judge to disturb a verdict because of his dissatisfaction with the amount of damages rests in this state on more than a century of precedent and practice.

Over fifty-five years ago in response to a request by counsel for plaintiffs to restore $3,500.00 remitted at the suggestion of the trial court, Justice McKinney stated "(t)his is only done where it appears that the trial court has abused his discretion, which is not the case here." Pryor Brown Transfer Co. v. Gibson, 154 Tenn. 260, 272, 290 S.W. 33 (1926). Since that time the scope of appellate review, where a remittitur or additur has been used, traditionally has been limited to the inquiry whether the trial judge "abused his discretion." ⁴

In 1973, however, the Middle Section of the Court of Appeals for the first time purported to adopt a different standard the de novo standard of review. Speight v. Newport, 503 S.W.2d 202 (Tenn. App. 1973). For the next four years that court at times used the abuse of discretion standard, and at times the de novo standard. ⁵ On August 26, 1977, a majority of that court in Smith v. Shelton used the de novo standard of review, and in a concurring opinion a member of that court expressed the hope that the Supreme Court would resolve the four year old conflict as to which standard was proper abuse of discretion or de novo review. This Court granted certiorari to specifically address that question. Smith v. Shelton, 569 S.W.2d 421 (Tenn.1978).

In Smith v. Shelton, this Court expressed its dissatisfaction with both standards of review. It overruled the de novo review standard of Speight v. Newport, supra, holding that additur and remittitur cases do not fit the mold of nonjury cases. 569 S.W.2d at 424, 427. Without specifically overruling a half century of case law in support of the abuse of discretion standard, ⁶ the Court did point out the weakness of this standard in providing proper guidelines for appellate review of additurs and remittiturs.

The chief difficulty with "abuse of discretion," as the Court in Smith v. Shelton noted, is that it has meant different things to different courts. Appellate courts have used "abuse of discretion" interchangeably with "shocking the judicial conscience." See: Jones v. Cocke County, 61 Tenn.App. 555, 563, 565-67, 456 S.W.2d 665 (1970); Graham v. Smith, 46 Tenn.App. 549, 555, 330 S.W.2d 573 (1959); Yellow Cab Co. v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17 (1958). The term has too often implied intentional wrong, bad faith or misconduct on the part of a trial judge. In our view, "abuse of discretion" was never intended to carry such a meaning, nor to reflect upon the trial judge in any disparaging manner. To us the phrase simply meant an erroneous conclusion or judgment on the part of the trial judge a conclusion that was clearly against logic (or reason) and not justified. Given the confusion surrounding the term "abuse of discretion," we feel the better course of action is to abandon it as unworkable in the additur-remittitur context. Henceforth the standard of appellate review will be simply to ascertain whether the trial judge's actions in increasing or decreasing a verdict were justified, giving due credit to the jury's decision on the credibility of the witnesses and that of the trial judge in his capacity as thirteenth juror.

Our adoption of this new standard is guided by the intentions of Smith v. Shelton. Shelton was written with a view to providing the appellate courts with guidelines, rather than hard and fast rules in reviewing additurs and remittiturs. The wisdom of this approach is readily apparent when one considers the numerous types of cases and fact situations to which additurs and remittiturs apply.

This Court in Smith v. Shelton established guidelines which it hoped would simplify the process for trial or appellate judges in considering additurs and remittiturs. These guidelines have now been amplified and explained in subsequent cases. Shelton tells the appellate courts that "appellate review of a trial judge's actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof. The upper and lower limits of that range just be determined by a reasoned examination of the credible proof...