Kaiser v. Cannon

• Decision Date: 27 June 1975
• Parties: Lloyd J. KAISER, Plaintiff-Appellant, v. Reid Edwin CANNON, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 235

529 S.W.2d 235

Lloyd J. KAISER, Plaintiff-Appellant, v. Reid Edwin CANNON, Defendant-Appellee.

Court of Appeals of Tennessee, Middle Section.

June 27, 1975 Certiorari Denied by Supreme Court Nov. 11, 1975.

Wilkes Coffey, Jr., Murfreesboro and Daniel B. Boone, Louisville, Ky., for plaintiff-appellant.

Schulman, McCarley, Hollins & Pride, Nashville, for defendant-appellee.

OPINION

DROWOTA, Judge.

This case presents the issue whether additur as applied to a non-consenting plaintiff violates the right to trial by jury guaranteed by Article 1, § 6 of the Tennessee Constitution.

Appellant filed suit in the Circuit Court for Rutherford County, Tennessee against Reid Edwin Cannon, seeking damages for injuries allegedly resulting from an accident involving automobiles driven by Cannon and by Stanley H. Kimmell. On the morning of May 11, 1970, appellant Kaiser was a passenger in an automobile being driven south on U.S. Highway 41 South by Stanley H. Kimmell. The automobile was leased from Perkins Leaning Company. Appellee Cannon was driving his automobile north on the same highway. At a point approximately seven miles south of the City of Murfreesboro, Cannon pulled into the southbound lane to pass an automobile pulling a trailer in front of him. When Cannon had pulled thirty or forty feet into the southbound lane, to a point even with the rear wheels of the trailer in the northbound lane, he observed the vehicle driven by Kimmell approaching in the southbound lane about 300 feet ahead. Unable to return to the northbound lane, Cannon applied his brakes and skidded toward the west side of the highway.

In an effort to avoid striking the Cannon automobile, Kimmell pulled his vehicle onto the shoulder of the road. The vehicle went into the ditch near the shoulder and proceeded 150 feet past the Cannon automobile, striking a tree in the front yard of a residence on the west side of the highway. Both Kimmell and Kaiser were injured.

Separate actions were filed against Cannon by Kaiser, Kimmell and Perkins Leasing Company. The cases were consolidated and tried before a jury. Kaiser offered evidence that as a result of the incident he had incurred special damages in the amount of $4,051.98 and a loss of earnings in the amount of $32,300.00. It was stipulated that Perkins Leasing Company had been injured in the sum of $100.00. Kimmell testified that he had been injured 'very slightly', and offered proof of $106.29 in special damages and lost earnings from missing three days of work.

The jury returned a verdict for Kaiser in the amount of $2,500.00 and for Perkins Leasing Company in the amount of $100.00 but found against Kimmell.

Kaiser and Kimmell each moved for a new trial. The grounds for Kimmell's motion are not revealed in the record. Kaiser contended a new trial was appropriate in his cause for three reasons: that the verdict was contrary to the weight and preponderance of the evidence; that the verdict clearly demonstrated the jury did not follow the court's instructions with reference to the loss of earning capacity and that the verdict was contrary to the weight and preponderance of the evidence with reference to special damages, loss of earning capacity, and temporary disability; and that the verdict was so small as to indicate passion, prejudice, or unaccountable caprice.

The Trial Judge granted Kimmell's motion for a new trial. By Order of April 29, 1974 the court found that Kaiser's motion for a new trial was well taken 'insofar as it attacks the inadequacy of the verdict.' Pursuant to T.C.A. § 20--1330 the court suggested an additur of $6,500.00 and ordered a new trial unless the defendant accepted the increase. The Order provided that 'if said suggestion be accepted the plaintiff(')s (m)otion for a new trial will be overruled in all respects and judgment will be rendered against the Defendant, Reid Edwin Cannon, for the total amount of $9,000.00 and the cost of this cause.'

The Order further reflects that the defendant 'did accept said additur in Open Court,' that the court granted judgment against defendant for $9,000.00 plus costs, and that 'the motion of the Plaintiff for a new trial in this cause is in all respects overruled.' Plaintiff's prayer for an appeal was granted in the same Order.

On April 29, 1974 appellant filed a motion to set aside the order and to grant a new trial on three grounds: that the court did not consider the effect of the 'tainted' verdict rendered in the Kimmell case on the verdict in this cause; that the court did not consider the effect of the 'inconsistent' verdicts rendered in the Kaiser and Perkins Leasing Company cases on the verdict in this cause; and that the court's action in suggesting an additur in the amount of $6,500.00 was error because a 'tainted' verdict cannot be corrected by additur. By Order of April 30, the Trial Court overruled the motion.

I.

Appellant contends that the trial court's substitution of an additur in an amount unsatisfactory to plaintiff for the granting of a new trial, where the trial judge as the thirteenth juror finds that the jury verdict is inadequate, constitutes a denial of the right to trial by jury guaranteed by Article 1, § 6 of the Constitution of the State of Tennessee.

In McCall v. Waer, 487 S.W.2d 308 (Tenn.1972), the Supreme Court expressly left open that issue. In McCall a defendant challenged the constitutionality of the additur statute, T.C.A. § 20--1330. The Court found that since the additur is conditioned on the defendant's acceptance he may refuse the additur with the result that a new trial will be ordered in which a jury will be available. Consequently, the Court held the statute constitutional as applied to defendants. It noted, however, that 'should a plaintiff disagree with the amount of the additur, and demand a new trial . . . a serious question would be presented.' 487 S.W.2d at 310--11.

Before turning to the Tennessee Constitution, an examination of the additur practice in other jurisdictions is in order. In many of the early cases in which additur was considered it was held unconstitutional, at least in instances in which the plaintiff did not consent. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. (1935); Shjanahan v. Boston & N. St. Ry. Co., 193 Mass. 412, 79 N.E. 751 (1907); Lorf v. City of Detroit, 145 Mich. 265, 108 N.W. 661 (1906); Mohr v. Williams Case, 95 Minn. 261, 104 N.W. 12 (1905); Bradwell v. Pittsburg, etc. R. Co., 139 Pa. 404, 20 A. 1046 (1891), relied upon in Raymond L. J. Riling, Inc. v. Schuck, 346 Pa. 169, 29 A.2d 693 (1943). A number of more recent cases are in accord. See, e.g., Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604 (1952); Sarvis v. Folsom, 114 So.2d 490 (Fla.App.1959); In re Ohio Turnpike Comm'n, 101 Ohio App. 474, 140 N.E.2d 328 (1955). The courts reasoned that additur was unknown at common law, and substituted a judicial decision on damages for that of a jury.

A number of jurisdictions have permitted additur only where damages are liquidated. See, e.g., Yep Hong v. Williams, 6 Ill.2d 456, 128 N.E.2d 655 (1955); Rudnick v. Jacobs, 39 Del. 169, 197 A. 381 (1938); Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565 (1935); Fall v. Tucker, 113 Kan. 713, 216 P. 283 (1923); E. Tris Napier Co. v. Gloss, 150 Ga. 561, 104 S.E. 230 (1920). In such cases there can be no argument that the province of the jury is invaded because no jury could properly have awarded more to the plaintiff than is provided for by the additur. Similarly, in cases of unliquidated damages, some courts have allowed the substitution of an additur for a new trial only where the trial judge suggests a recovery in the highest amount allowable as a matter of law. See O'Connor v. Papertsian, 309 N.Y. 465, 131 N.E.2d 883 (1956). Other courts have required that the suggested award of damages be set at the lowest amount that an unprejudiced jury could find for the plaintiff, who is given the option of either accepting it or a new trial. See, e.g., Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127 (1933). Still others have given plaintiff the option of stipulating to the lowest estimate of damages made by defendant's witnesses or accepting a new trial. See Bingaman v. City of Seattle, 139 Wash. 68, 245 P. 411 (1926).

Beginning in the late 1950's an apparent trend developed in the state courts in favor of the constitutionality of the additur practice as applied to plaintiffs in cases of unliquidated damages. See Jehl v. So. Pac. Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988 (1967), Overruling Dorsey v. Barba, supra; Bodon v. Suhrmann, 8 Utah 2d 42, 327 P.2d 826 (1958) (dictum); Caudle v. Swanson, 248 N.C. 249, 103 S.E.2d 357 (1958); Fisch v. Manger, 24 N.J. 66, 130 A.2d 815 (1957); Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854 (1957), Overruling Mohr v. Williams Case, supra. The courts reasoned that the plaintiff could not be prejudiced since he was receiving more than the jury had given him, and emphasized the practical advantages of additur.

In Tennessee, the Article 1, § 6 guarantee 'that the right to trial by jury shall remain inviolate' was incorporated into the Constitution of 1870 from the Constitution of 1796. It protects the right of trial by jury as it existed at common law. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); State v. Sexton, 121 Tenn. 35, 114 S.W. 494 (1908); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447 (1906).

Whether additur violates the constitutional guarantee cannot be determined without inquiry into the historic powers of the jury. At common law at the time the right to trial was written into the first Tennessee Constitution a jury verdict in personal tort cases could not be disturbed, and a new trial granted, merely because the judge found the damages as assessed to be either excessive or inadequate. ¹ Sedgwick on Damages, § 349 at 688--89 (9th ed. 1912).

In 1864 the English Court of Common Pleas unanimously rejected the proposition that...