McCullough v. Johnson Freight Lines, Inc.

• Decision Date: 06 December 1957
• Citation: 308 S.W.2d 387,6 McCanless 596,202 Tenn. 596
• Parties: , 202 Tenn. 596 Louise McCULLOUGH v. JOHNSON FREIGHT LINES, Inc., et al. Watty Ann FREULER, etc. v. JOHNSON FREIGHT LINES, Inc., et al.
• Court: Tennessee Supreme Court

Page 387

308 S.W.2d 387

6 McCanless 596, 202 Tenn. 596

Louise McCULLOUGH v. JOHNSON FREIGHT LINES, Inc., et al.

Watty Ann FREULER, etc. v. JOHNSON FREIGHT LINES, Inc., et al.

Supreme Court of Tennessee.

Dec. 6, 1957.

Cunningham, Crutchfield & Summitt, Chattanooga, for plaintiffs in error.

Spears, Moore, Rebman & Williams, Chattanooga, for defendants in error.

NEIL, Chief Justice.

These consolidated suits for personal injuries and property damage were tried to a jury in the Circuit Court of Hamilton County, Tennessee, resulting in separate verdicts for the plaintiffs.

In Mrs. McCullough's case she sued for damages for (1) personal injuries, (2) for property damages (damaged automobile) and (3) for loss of services of her adopted daughter, Watty Ann Freuler, and also expenses incurred in the latter's behalf, to wit, medical and hospital expenses. In Watty Ann Freuler's case the sued for personal injuries only. Since she was sixteen (16) years of age her suit was instituted by her mother, Mrs. Louise McCullough as next friend, etc.

The jury returned the following verdicts: (1) in favor of Mrs. Louise McCullough the amount of $2,678, representing $2,250 personal injuries, $428 property damages; (2) in favor of Watty Ann Freuler the sum of $200.

The declarations in each of the cases charged the defendants with the same act of proximate negligence, viz., the truck of the defendant was traveling at an exceedingly fast and reckless rate of speed and crashed into the rear of plaintiff's jeep with such force as to cause same to leave the road, go into a ditch, become completely demolished and cause the plaintiff and her daughter serious and painful injuries (describing them). Certain specific acts of negligence are charged, relating to unlawful speed, reckless driving, failing to have the vehicle under reasonable control, etc., in violation of the statute.

The defendants plead the general issue, and also filed special pleas denying any act of negligence as charged in the declaration, and that the plaintiff was guilty of contributory negligence in that she suddenly stopped her car without giving any signal of an intention so to do, and in failing to give any signal of her intention to turn off the highway as required by the statute.

Upon the issues thus made in the pleadings, and the evidence introduced at the trial, the jury returned the verdicts above referred to.

The plaintiffs moved the court for a new trial complaining (1) that the verdict was not supported by the evidence; (2) that the verdict was incomplete; (3) that the amount of the verdict for each of the parties plaintiff was so manifestly inadequate as to indicate passion, prejudice and caprice on the part of the jury; and (4) that the trial judge over-emphasized the importance of plaintiff's alleged contributory negligence. All of the foregoing grounds for a new trial were made the basis of assignments of error in the Court of Appeals. The defendants did not appeal.

It is clear from the briefs filed in the Court of Appeals that the issue of contributory negligence and the inadequacy of the verdicts were stressed before that court.

The Court of Appeals reversed the trial court on the ground that the verdicts were wholly inadequate.

The defendants filed a petition for certiorari which we granted for the purpose of hearing oral argument on the issue that was decided, and the related question of contributory negligence which was pretermitted by the court.

The counsel for the defendants, petitioners here, earnestly contend that the court erred in its opinion because the question of unliquidated damages was one for the jury's consideration and not subject to review because there was material evidence to support it; that there was material evidence to prove contributory negligence by Mrs. Louise McCullough.

On the contrary the plaintiffs say the opinion fully disclosed the inadequacy of the verdicts and in a proper case, such as the case at bar, it was the duty of the court to reverse and remand for a new trial.

We have heretofore made specific reference to assignments of error in the Court of Appeals by counsel for the plaintiffs (respondents here to the petition for certiorari), to wit, (1) the jury's verdict was inconsistent and incomplete; (2) the trial judge over-emphasized the defense of contributory negligence.

Following the oral argument in this Court the respondents filed certain cross-assignments of error. But we cannot consider them for the reason that the time for so filing under the statute has long since expired. Section 27-823, T.C.A.

Coming now to the petitioner's contention that the Court of Appeals was in error in reversing the trial court on the ground that the amount of the verdict in each case was inadequate, our cases hold without exception that an award by the jury will not be disturbed when there is material evidence to support it.

When are we justified in reversing the trial judge because of inadequacy of the award in personal injury cases? In responding to this issue the Court of Appeals held, as follows:

'The rule is well settled that where the amount awarded by the jury in a personal injury case is manifestly insufficient to compensate plaintiff for impaired strength and loss of earning power, to say nothing of compensation for mental anguish and physical suffering, it should be set aside as the result of passion, prejudice or unaccountable caprice. W. T. Grant Co. v. Tanner, 170 Tenn. 451, 95 S.W.2d 926; Burkell v. [Memphis] Street Railway Co., 2 Tenn.Civ.App. 576; City of Nashville v. Fox, 6 Tenn.App. 653; Flexer v. Crawley, 37 Tenn.App. 639, 269 S.W.2d 598, 600.'

In W. T. Grant & Co. v. Tanner, supra, [170 Tenn. 451, 95 S.W.2d 927] the Court of Appeals has set aside a verdict of $500 for personal injuries. On petition for certiorari, which was granted, this Court (opinion by Green, C. J.) concurred, saying: 'It seems to us that the reasoning of the Court of Appeals justified its action in setting aside the verdict. If the plaintiff is entitled to damages at all, she is entitled to more than recovered.' It does not appear upon what ground the case was reversed for inadequacy of the verdict. The crucial point in the case was whether, upon the remand, the case should be tried upon all issues or merely to assess the damages. If the case was reversed on the ground that the verdict was the result of passion, prejudice and caprice we would agree.

The case of Burckell v. Memphis Street Railway Co., supra, cited as authority for the reversal in the case at bar is not controlling because the court expressed the following view regarding the verdict: 'While we ascribe this verdict to unaccountable caprice, we really might say that it had its origin in the errors of law committed by the Court.'

Neither is the case of Flexer v. Crawley, supra, applicable because the question of the plaintiff's contributory negligence was not involved. The same is true in City of Nashville v. Fox, supra. Adverting to Flexer v. Crawley, there was no dispute as to the nature and extent of the plaintiff's injuries, all of which resulted from the defendant's negligence. It is distinguishable from the case at bar in that, says Judge Carney in his able opinion [37 Tenn.App. 639, 269 S.W.2d 600]: 'There is no evidence before the jury or charge by the Court concerning contributory negligence on the part of plaintiff justifying or requiring a mitigation of plaintiff's damages.'

In the case at bar there is material evidence to prove remote contributory negligence on the part of the plaintiff, thus justifying, or...