Phelps v. Magnavox Co. of Tennessee

• Decision Date: 17 October 1972
• Citation: Phelps v. Magnavox Co. of Tennessee, 497 S.W.2d 898 (Tenn. App. 1972)
• Court: Tennessee Court of Appeals
• Parties: Bertha PHELPS, Appellee, v. The MAGNAVOX COMPANY OF TENNESSEE and Johnson City Power Board, Appellants. . *

Page 898

497 S.W.2d 898

Bertha PHELPS, Appellee, v. The MAGNAVOX COMPANY OF TENNESSEE and Johnson City Power Board, Appellants.

Court of Appeals of Tennessee, Western Section. ^*

Oct. 17, 1972.

S. J. Milligan, Greeneville, and Alfred W. Taylor, Johnson City, for appellant, Magnavox Co. of Tennessee.

Walter L. Price, Johnson City, and Ernest F. Smith, Kingsport, for appellant, Johnson City Power Board.

Todd & Dossett, Kingsport, for appellee.

NEARN, Judge.

This is the second time that this case has reached the Court of Appeals. On the first appeal, the Trial Judge's action in directing a verdict for the defendants at the close of plaintiff's proof was reversed by the Court of Appeals and a new trial ordered. Certiorari was denied by the Supreme Court and the opinion of this Court on that appeal is reported as Phelps v. Magnavox Company of Tennessee, Inc., et al. (1970 E.S.), Tenn.App., 466 S.W.2d 226.

The pleadings alone in this case constitute some one hundred-forty pages of the record and the case at one time or another involved other defendants. However, we do not intend to review all the pleadings in this opinion. For our purposes, suffice it to say that the issues were tried with Bertha Phelps, widow of William Martin Phelps as plaintiff, and The Magnavox Company of Tennessee, Inc. and Johnson City Power Board as the defendants. The defendants will be referred to in this opinion as Magnavox and the Power Board.

William Martin Phelps suffered death by electrocution on February 1, 1967, while employed as a roofer for Industrial Decking and Roofing Company of Bristol, Virginia. Industrial was the subcontractor of the prime contractor Boles & Hite Construction Company. Magnavox had contracted with Boles & Hite for the construction of a dry kiln and a building housing same. Magnavox maintains a large manufacturing plant in Johnson City, Tennessee and the new construction was a separate addition to the existing facility of Magnavox. All electrical service lines, poles and electrical transmission equipment located on the Magnavox premises were the property of Magnavox. This electrical equipment was supplied and installed by the Power Board on the basis of cost of material plus ten per cent and labor at actual cost.

On November 1, 1966, prior to the construction of the new addition but in contemplation thereof, Magnavox requested the Power Board to relocate within the Magnavox premises, one utility pole and its lines in order that they would clear the proposed addition. The relocated lines were three-phase and between phase carried approximately 12,500 volts. It was from the relocated lines that Phelps received a fatal shock.

Plaintiff's two count declaration sets out the relationship of the parties and charges both defendants with gross negligence in the failure to exercise their common law duty and the violation of certain city ordinances and applicable electrical codes.

The defendants denied all negligence and averred contributory negligence on the part of the deceased as the proximate cause of his deaty and therefore a bar to recovery.

On the second trial of the case, the matter was permitted to go to the jury and that body returned a verdict in favor of the plaintiff against both defendants in the amount of $130,000.00. It is from that judgment that appeal has been now perfected to this Court.

Counsel for Magnavox has made seven Assignments of Error in this Court and counsel for the Power Board has made eight. Because of the nature of the case and the proof adduced, on appeal, both defendants find themselves more or less occupying the same boat and although different verbiage is used by respective counsels in making their Assignments of Error, their complaints fairly well follow the same pattern. Also, the number of Assignments of Error is not particularly significant, as some are simply additional reasons by the writer why a previous Assignment of Error should be sustained. Therefore, we will regulate all the Assignments of Error into four issues. These issues are:

I

Did the Trial Court err in refusing to permit the defendants to show the fact of the remarriage of Bertha Phelps to the Jury?

II

As to the defendant Magnavox, did the Trial Court err in allowing the discovery deposition of Myron L. Newton to be read into evidence?

III

Did the Trial Court err in failing to direct a verdict for the defendants at the close of all the proof?

IV

Is the verdict excessive and did the Trial Judge approve it?

It is not disputed that the plaintiff was the wife of the deceased at the time of his death, but, prior to trial the defendant moved the Court to require the plaintiff to amend her pleadings to show that the plaintiff had remarried and that her present name was Bertha Rasnick. The Plaintiff countered with a motion for an order restraining defense counsel from in any way referring to the fact that plaintiff had remarried since the first trial on the grounds that the fact of remarriage is not material or relevant to the issues. The Trial Judge overruled the defendant's motion, sustained the plaintiff's motion and ordered that defense counsel be restrained from in any way referring to the fact of plaintiff's remarriage. This act of the Trial Judge is alleged to be error by both defendants and is the basis of the first issue.

In a suit for wrongful death, the recovery sought is for the pecuniary value of the life of the deceased At the time of death. There can be no recovery for the mental suffering occasioned by the widow of the deceased. The action is the deceased's for his death. Because he is unable to speak for himself, by statute his right survives for the presentation by another. No new right is created in the wife. She simply acts in his stead. The fact of her remarriage has no bearing on her husband's death or the responsibility therefor. Memphis Street Railway Company v. Cooper (1958), 203 Tenn. 425, 313 S.W.2d 444.

It is argued that in this case the proper procedure would have been for the Trial Judge to direct the plaintiff to reveal her married name when on oath as a witness rather than permit her to be identified as 'Mrs. Bertha Phelps', and then, the Court in its charge to the jury, instruct them that they were not to consider such fact in any deliberation on the amount of damages or liability. We are unable to perceive the logic behind admitting into evidence that which is not germane to the issue in order that the jury can be instructed not to consider it. See Lancaster v. Arendell (1871), 49 Tenn. 434.

It is also argued the Court's admonitions to a jury in its charge, that they must not engage in sympathy often falls on deaf ears when a 'widow' is the plaintiff. Therefore, defendants should have been permitted to prove that she was not at the time of trial a widow.

This argument presupposes that a jury will violate its oath and not follow the instructions of the Court when the interests of a widow are involved. We can make no such presupposition or assumption. The presumption is to the contrary. If that which is not germane to the issues is to be allowed in evidence on the assumption that the jury will not follow the instructions of the Court, then, the rules of evidence would be jettisoned beyond all recall. In Memphis St. Ry. Co. v. Cooper, supra, the truth of this fact was observed when the Court copied with approval from counsel's brief as follows:

'There are certain conclusive presumptions that must be indulged in if there is to be a government under law and the fact that some of those presumptions are generally known to be fictional does not lessen the necessity of their observance and conclusive acceptance. Once we admit that a widow has a better chance of establishing liability than a more remote relative, we admit the possibility that a pretty woman is a more favored litigant than one who is homely, or that a preacher is a more favored suitor than a gambler, and so on Ad infinitum. No matter how persuasive these ideas may be to laymen, and no matter how much lawyers may be convinced of their factual correctness in individual cases, to base a judicial decision upon such consideration is to move from the realm of law into chaos.'

The majority of American jurisdictions which have considered this question have held that the remarriage of a surviving spouse does not affect the damages recoverable and that evidence of such remarriage is inadmissible. See annotations found on the subject in 87 A.L.R.2d 252 and at page 163 of the Later Case Service. It would seem that only the British Commonwealth, Australia and two of our states have held to the contrary. At one time the State of Michigan held to the minority view. See Sipes v. Michigan C.R. Co. (1925), 231 Mich. 404, 204 N.W. 84. However in Bunda v. Hardwick, 376 Mich. 640, 138 N.W.2d 305, the Michigan Court expressly overruled their previous stand on the question and adopted the majority rule. We are of the opinion that the majority rule is the better rule, not because the majority of states have adopted it, but because it is the more reasonable rule. First, the cause of action arises at the time of death and damages are determinable as of that time. Second, the only reason that the fact of remarriage could be introduced would be to mitigate the widow's damages and she has none in this case. It is the pecuniary value of the life of the deceased, had he lived, that is to be determined. Further, we see no reason why a defendant should profit from the remarriage of a widow any more than he should profit from what she might receive from policies of insurance on his life.

We are of the further opinion that this State has long followed the majority rule, at least since Memphis St. Ry. Co. v. Cooper, supra. Why this fact has escaped the attention of various annotators on the subject, in view of the reported Memphis St. Ry. Co. case, we are at a loss to explain. We hold that Tennessee has and does follow the majority rule....