Poole v. Kroger Co.

• Decision Date: 08 September 1980
• Citation: 604 S.W.2d 52
• Parties: Dorothy Jean POOLE, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 52

604 S.W.2d 52

Dorothy Jean POOLE, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.

Supreme Court of Tennessee.

Sept. 8, 1980.

Thomas L. Reed, Jr., Reed, Rogers & Trail, Murfreesboro, for plaintiff-appellee.

John R. Rucker, Richard W. Rucker, Murfreesboro, for defendant-appellant.

OPINION

FONES, Justice.

Plaintiff's suit for personal injuries sustained when she fell on defendant's premises resulted in a jury verdict of $10,000, an amount approved by the trial judge. On appeal the majority of the Court of Appeals' panel set aside the verdict "because of extreme inadequacy . . . evidencing misconduct by the jury," and remanded for a new trial on the issue of damages only. The dissenting judge was of the opinion that material evidence existed in the record to support the jury award approved by the trial judge and would have affirmed the judgment of $10,000. We agree with the dissent.

I.

Plaintiff took her father to the Kroger Store in Murfreesboro to shop for her parents and pick up a few items for herself. Her father completed his shopping and was taking the cart to the check-out stand while plaintiff went to the frozen food case to get some "beef things." Defendant's employees had discovered a water leak from one of the frozen food compartments earlier in the day, had periodically mopped up the water, and had left a mop bucket sitting in the area of the water leak. The mop bucket was approximately two feet wide and two and one-half feet tall and had a mop standing in it. On one side of the mop bucket were the words, "Wet Floor-Caution," but no one could say in which direction that side of the bucket was facing at the time plaintiff fell.

In approaching the frozen food counter plaintiff "rounded an aisle" and slipped and fell, injuring her right knee. She denied seeing the mop bucket and mop or water on the floor prior to falling, but testified that her dress was wet when she arose from the floor.

Following the fall, on July 22, 1977, plaintiff was hospitalized for a period of seven days. On August 25, 1977, she returned to the hospital where a surgical incision of a torn cartilage was performed. She was admitted to the hospital again on September 8, 1977, with a diagnosis of thrombo phlebitis. After a twelve day stay in the hospital, she had therapy three times a week for a period of time. Plaintiff adduced expert medical testimony that the torn cartilage and thrombo phlebitis were causally related to the injury she sustained in the fall at defendant's store. Doctor McInnes testified that in his opinion she had a permanent partial disability of the right lower extremity of ten percent.

It was stipulated that her medical expenses were $5,947.28 and that her life expectancy was 42.82 years. Plaintiff was not working at the time of the injury. She testified that she had quit her job at Cloverbottom Hospital but intended to go back to work at the end of the summer when her children returned to school. She could not recall her rate of pay at the Cloverbottom Hospital but at the time of the trial she was employed and earning $3.73 an hour. She contended, and there was supporting medical evidence, that her period of disability extended from the date of the accident to May 1, 1978.

II.

We recently gave extensive consideration to the effect of the trial judge's approval of the amount of a jury award upon the scope of appellate review of alleged excessiveness or inadequacy of verdicts. In Ellis v. White Freightliner Corp., 603 S.W.2d 125 (Tenn.1980), released July 28, 1980, this Court expressly held that the trial judge's approval of the amount of the jury's verdict invokes the material evidence rule, just as it does with respect to all other factual issues upon which appellate review is sought, and that "(a)ll of the evidence in the record that tends to support the amount of the verdict should be given full faith and credit upon appellate review." As a reading of Ellis will disclose, that was not the announcement of a new rule but rather an express affirmance of a practice of Tennessee courts of many years duration.

In Pitts v. Exxon, 596 S.W.2d 830 (Tenn.1980), the Court held that jury verdicts found to be the result of passion, prejudice, or caprice solely on the grounds of excessiveness, as well as verdicts that are merely excessive, may be cured by remittitur. The trial judge has the same authority with respect to curing inadequate verdicts by additur, but in the case of inadequacy, the appellate courts have no express statutory authority to initiate an additur.

As the dissenting judge in the present case observed, if the jury verdict was below the range of reasonableness, established by the credible proof, the trial judge should have suggested an additur pursuant to Smith v. Shelton, 569 S.W.2d 421 (Tenn.1978), and Jenkins v. Commodore Corp. Southern, 584 S.W.2d 773 (Tenn.1979), or if he found the verdict to be within the range of reasonableness, but was dissatisfied with the verdict, he had the option of ordering a new trial, which he could have done without assigning any reason. See James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613 (Tenn.1977). In the present case we are entitled to assume that the trial judge found the verdict to be within the range of reasonableness and that he was satisfied with the verdict.

Thus, our review is limited to a...