Sitton v. Clements, Civ. A. No. 5265.
| Citation | 257 F. Supp. 63 |
| Decision Date | 11 May 1966 |
| Docket Number | Civ. A. No. 5265. |
| Parties | Paul SITTON v. Hal H. CLEMENTS, Jr. |
| Court | U.S. District Court — Eastern District of Tennessee |
Norman D. Lane, John William Nolan, III, Nashville, Tenn., for plaintiff.
Jerome Templeton, Knoxville, Tenn., for defendant.
This case is before the Court on defendant's motion to set aside the verdict of the jury and the judgment entered pursuant thereto and for a new trial. In support of the motion, six separate grounds are urged.
It is asserted in the first ground that the verdict is contrary to law. This ground appears to be too general to analyze and what is to be said in considering the other contentions made by the defendant, where applicable, will apply.
Grounds 2 and 3 relate to the sufficiency of the evidence. In the opinion of the Court the evidence created issues for the jury on the question of liability or nonliability and there is substantial evidence to support the verdict of the jury on this question and grounds 2 and 3 are, therefore, overruled.
Ground 4 asserts that the verdict is excessive and appears to have been given under the influence of passion, caprice and sympathy.
Ground 5 asserts that the verdict far exceeds any amount that plaintiff could have collected from Fuller and is, therefore, excessive and contrary to law and contrary to the charge of the Court.
These grounds will be considered together as they are closely related and require a brief review of the background of the circumstances leading up to the assault and battery which gave rise to the criminal prosecution of Fuller and the present action.
Plaintiff was shot with a .38 caliber pistol by Fuller on December 4, 1959 in a tavern in Knoxville, Tennessee, across the street from the Local 51, Sheet Metal Workers Union Building. Fuller was Business Agent of this Union and plaintiff was one of its members. The bullet entered a portion of plaintiff's spinal column and resulted in permanent paralysis to his body from the waist down.
Plaintiff retained defendant to assist the State in the prosecution of Fuller and to file a civil suit against Fuller. Defendant aided in the prosecution of Fuller, which resulted in a verdict of guilty of simple assault and Fuller was fined $500.00 for simple assault and a jail sentence was added by Judge Bibb on the offense of carrying a pistol. The sentence was served. The civil action was never filed. The written contract signed by the defendant provided that the defendant was to institute suit for plaintiff and to receive 50% of any sum that was recovered. Defendant was paid or caused to be paid by plaintiff or plaintiff's friends for his services in the criminal prosecution.
Defendant denies that he breached the contract to institute the civil action under the circumstances that existed. He contended that it would not have been proper to have filed a civil action since there was no chance of recovery against the Union. He also contended that a recovery against Fuller was doubtful and that any judgment obtained was non-collectible. Defendant stated that he advised plaintiff that the trial of the criminal case had been continued to a date beyond the dead line for the institution of the civil action and advised plaintiff that if a civil suit was instituted while the criminal case was pending that it would damage the prospects for a conviction. Defendant testified that plaintiff advised him, in effect, that he was more anxious to convict Fuller than to pursue the civil suit. Defendant testified that it was under these circumstances that plaintiff decided against the institution of the civil suit.
Since the suit was not instituted within one year from the date of the accrual of the action, it is barred by the one-year statute of limitations of Tennessee.1
The case was submitted to the jury under the respective theories of the parties. The jury was told in effect in the charge that if plaintiff was entitled to damages he could only recover what he could have recovered against Fuller, less the costs, including 50% of any recovery to his attorney for attorney's fee. (As previously stated, defendant accepted the civil case on a 50% contingent fee basis.) The jury was also told that the burden of proof was upon plaintiff to show that he was entitled to damages from Fuller and that Fuller was solvent.
A verdict was returned in favor of the plaintiff and damages fixed at $162,500.00.
At the time of the tragic episode, plaintiff was thirty-seven years of age and earning a wage of $3.35 per hour as a sheet metal worker. His hospital, medical, nurses and doctors' expenses to the date of trial were $16,733.17.
At the time of the shooting, Fuller was making $186.00 per week, plus expenses. The shooting occurred on December 4, 1959. In December, 1963 Fuller purchased a home for a consideration of $16,300.00, with a cash payment of between $1,200.00 and $1,500.00, and agreed to pay the balance at the rate of $153.00 per month. He purchased a lot located on the back side of Gatlinburg, one or two years before the trial, and paid therefor the sum of $650.00. He owns an unimproved lot in Loudon County worth about $2,500.00. He purchased a lot off of Fitzgerald Road for $5,000.00. He owes $800.00 or $900.00 on this lot. He purchased a lot which adjoins his home shortly after he purchased his home and paid therefor $1,200.00. He bought a Chevrolet automobile in 1960. He purchased a 1965 Oldsmobile and title thereto was vested in the name of his wife. He owned in 1965 about $500.00 of Holiday Inn stock and $500.00 of RCA stock. He paid $250.00 per acre for the 20-acre parcel of land that he now owns and would sell it for a price of $400.00 per acre. He now earns $12,000.00 per year exclusive of expenses. He earned $135.00 per week immediately after he was released from jail and before he was rehired as a business agent. He has invested approximately $12,900.00 since getting out of jail. He stated that he and his wife own all of the foregoing property jointly; that he did not have any money at the time he began his jail sentence or when he was released from jail. He has three children. He received from the Union from January to December, 1960 the sum of $9,672.00. The total amount that he has received as wages since December, 1959 to April 5, 1966 was $36,374.00. He received from January to December, 1965 $12,155.00. He has received from January, 1966 to the date of trial approximately $2,925.00.
In the case of Collier v. Pulliam and Lane, 81 Tenn. 114 (1884), an attorney...
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...been determined to be the [Beecks'] damages." McDow v. Dixon, supra, 138 Ga.App. at 341, 226 S.E.2d at 148. See also Sitton v. Clements, 257 F.Supp. 63, 67 (E.D.Tenn.1966), aff'd, 385 F.2d 869 (6th Cir.1967); Gladden v. Logan, 28 App.Div.2d 1116, 284 N.Y.S.2d 920 (1967) (per curiam); Taylor......
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...There is some support for this view in Tennessee. See In re Woods, 158 Tenn. 383, 13 S.W.2d 800, 803 (1929); Sitton v. Clements, 257 F.Supp. 63, 65 (E.D.Tenn.1966), aff'd 385 F.2d 869 (6th Cir.1967). The contrary line of decision, which appears to be the majority view, holds that no credit ......
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...Childs v. Comstock, 69 App.Div. 160, 74 N.Y.S. 643; Moores v. Greenberg, 834 F.2d 1105; McGlone v. Lacey, 288 F.Supp. 662; Sitton v. Clements, 257 F.Supp. 63, 65, affd. 385 F.2d 869; In re Woods, 158 Tenn. 383, 13 S.W.2d 800). Other courts have reached the opposite conclusion, however. Some......
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Kituskie v. Corbman
...have succeeded on the underlying action and that he would have succeeded in collecting on the resulting judgment. See Sitton v. Clements, 257 F.Supp. 63 (E.D.Tenn.), aff'd 385 F.2d 869 (6th A minority of courts in other jurisdictions, however, have rejected the majority's line of reasoning ......