McCall v. Waer
| Decision Date | 20 November 1972 |
| Parties | Elizabeth McCALL, Appellee, v. Carolyn Marie WAER and Richard Waer, Appellants. W. H. McCALL, Appellee, v. Carolyn Marie WAER and Richard Waer, Appellants. |
| Court | Tennessee Supreme Court |
Merle Johnson, Knoxville, for appellants.
R. T. Mann, James W. Justice, Privette & Mann, Knoxville, for appellees.
Elizabeth McCall and her husband, W. H. McCall, sued Carolyn Waer and Richard Waer, in companion suits, for personal injuries allegedly received by Mrs. McCall in an automobile collision, and medical expenses, loss of services and consortium suffered by W. H. McCall as a result of Mrs. McCall's injuries. The Waers admitted that thier negligence had caused the accident, but denied that Mrs. McCall had sustained the injuries she alleged: a fractured rib, and neck and back injuries. Mrs. McCall's proof was to the effect that the accident either activated and aggravated a pre-existing cervical spine condition, or caused the injury. She supported these allegations by expert medical evidence. The Waers offered no contradictory proof.
The cases were submitted to the jury only on the issues of injury and damages. Although the evidence was that following the collision Mrs. McCall received medical attention which resulted in approximately $1,500.00 in medical expenses to Mr. McCall, the jury returned a not guilty verdict. Both plaintiffs moved for new trials or in the alternative for additurs. Without specifically stating the grounds, the trial judge found the motions for additur were good, and granted an additur of $1,500.00 in each case.
Defendants neither refused the additurs subject to a new trial, nor accepted under protest, but appealed to the Court of Appeals, assigning as error that the trial court erred in awarding additurs where the verdicts of the jury had been for the defendants. The Court of Appeals reversed, holding that the effect of the trial judge's action was to direct a verdict for the plaintiffs, thereby denying the defendants their right to a jury trial. As the additur statute is comparatively new, and has not been considered by this Court we granted certiorari.
Two questions are presented: (1) Were the Waers' right to a jury trial violated by the additur? (2) Was the action of the trial judge in ordering the additurs, within the scope of his authority under T.C.A. § 20--1330?
The additur statute, § 20--1330 T.C.A. (Supp.1967) reads as follows:
'In cases where, in the opinion of the trial judge a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as he deems proper To the compensatory or punitive damages awarded by the jury, or both such classes of damages, and if such additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.
'In all jury trials had in civil actions, after the verdict has been rendered, and on motion for a new trial, when the trial judge is of the opinion that The verdict in favor of a party should be increased, and an additur is suggested by him on that account, with the proviso that in case The party against whom the verdict has been rendered refused to make the additur a new trial will be awarded, the party against whom such verdict has been rendered may make such additur under protest, and appeal from the action of the trial judge to the Court of Appeals; and 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, but that the judgment of the trial court is correct in all other respects, the case shall be reversed to that extent, and the Court of Appeals may order remitted all or any part of the additur.' (Emphasis added)
The answer to the first question must be that, since an additur is conditioned on the consent of the defendant, the statute provision being that he can refuse the additur and have a new trial, his right to a jury trial under the constitution is not impinged upon.
The right of trial by jury, as such, has not been considered to be involved in the exercise of the discretion imposed in the trial judge to grant a new trial because the verdict is excessive, or because it is inadequate. The function of the jury is discharged by its verdict, which then is subject to the approval of the judge. Historically, the power of the trial judge was so plenary that the legislature considered it necessary to limit it by the enactment of the present statute, § 27--202 T.C.A., providing that not more than two new trials can be granted to the same party in an action at law. This unlimited power of the trial judge as a thirteenth juror to grant new trials was such a fixed concept that the constitutionality of the statute limiting it was attacked in Railway Company v. Mahoney, 89 Tenn. 311, 15 S.W. 652; with the result that the statute was upheld.
The practice of ordering remittiturs in damage suits has been authorized by statute in Tennessee since the enactment of Chapter 29, Acts 1911, as amended by Chapter 253, Acts 1949, without, so far as I can find, any question being made as to its constitutionality and, the additur statute being no more than the converse of the remittitur statute, and resting on the same premise, that the trial, judge as the thirteenth juror must agree with the amount of the verdict and that if he does not he can order a new trial, it is our opinion the additur statute does not deny the right of a trial by jury.
Others who have cnsidered the question have disagreed with the proposition that the power to increase a verdict is a concomitant of the power to decrease one. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150; State Highway Com. v. Schmidt, 143 Mont. 505, 391 P.2d 692. Other authorities, however, hold to the contrary. Jehl v. Southern Pacific Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988, disagreed with other grounds Alberton v. Superior Court of San...
To continue reading
Request your trial
-
McClay v. Airport Mgmt. Servs., LLC
...disagreeing with the jury’s determination of damages—which is a question of fact" required to be decided by the jury); McCall v. Waer , 487 S.W.2d 308, 310 (Tenn. 1972) (stating that additur does not impinge on the defendant’s constitutional right to a jury trial because a defendant can ref......
-
Kaiser v. Cannon
...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, ......
-
Spence v. Allstate Ins. Co.
...against whom the additur is to be entered. Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935); McCall v. Waer, 487 S.W.2d 308, 310 (Tenn.1972); Kaiser v. Cannon, 529 S.W.2d 235 (Tenn.App.1975). The rationale for requiring such consent is that when the trial court g......
-
Boggs v. Rhea
...being a verdict in favor of that plaintiff ... [i]f there are no such damages awarded, there cannot be an additur.” McCall v. Waer, 487 S.W.2d 308, 311 (Tenn.1972). The jury awarded zero damages to Plaintiffs in this case. The issue of damages was the only issue tried. Thus, there was no ve......