Smith v. John Swafford Furniture Co., Inc., 77-1607

• Decision Date: 08 February 1980
• Docket Number: No. 77-1607,77-1607
• Citation: 614 F.2d 552
• Parties: 5 Fed. R. Evid. Serv. 795 Bobbie Jean SMITH and Wife, Jessie Mae Smith, Plaintiffs-Appellants, v. JOHN SWAFFORD FURNITURE COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 552

614 F.2d 552

5 Fed. R. Evid. Serv. 795

Bobbie Jean SMITH and Wife, Jessie Mae Smith, Plaintiffs-Appellants, v. JOHN SWAFFORD FURNITURE COMPANY, INC., Defendant-Appellee.

No. 77-1607.

United States Court of Appeals Sixth Circuit.

Argued Oct. 11, 1979.

Decided Feb. 8, 1980.

Glenn R. Copeland, Weill, Ellis, Weems & Copeland, Chattanooga, Tenn., for plaintiffs-appellants.

E. Blake Moore, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., for defendant-appellee.

Before CELEBREZZE and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

This is an appeal from a judgment entered on a jury verdict awarding damages and from an order of remittitur of damages in a diversity action arising out of a car-truck collision in Tennessee.

Plaintiff-appellant Bobbie Jean Smith brought this negligence action to recover for damages and losses arising from a motor vehicle collision which occurred on July 25, 1974. Plaintiff-appellant Jessie Mae Smith, his wife, sought to recover for loss of her husband's services and consortium. Defendant-appellee Swafford Furniture Company admitted liability for the accident and voluntarily paid Mr. Smith $8,506.17 prior to the institution of this lawsuit. The issue of damages was submitted to a jury, which returned an award of $44,797.83 for Mr. Smith and $9,000.00 for Mrs. Smith. When the amount paid by the defendant to Mr. Smith is considered together with the jury's verdict, the total award amounted to $51,000.00. Believing these awards to be in excess of any sum which the jury might reasonably have found to have been the loss sustained by either plaintiff, the trial judge ordered Mr. Smith to remit $17,297.83 and Mrs. Smith to remit $4,000.00, thus reducing the awards to $27,500.00 and $5,000.00 respectively.

Plaintiffs objected to the order of remittitur and chose a new trial rather than accepting the remittitur. ¹ At the second trial substantially the same evidence was introduced, but the jury returned a verdict of $16,000.00 for Mr. Smith and $0 for Mrs. Smith. After denying a motion for another new trial, the trial judge ordered an additur of $2,500.00 for Mrs. Smith.

In this appeal the plaintiffs contend that the verdict in the first trial was "clearly within the maximum limit of a reasonable range" and therefore remittitur was improper. Plaintiffs also assert that if the remittitur process was proper in the first trial, they were entitled to have the verdict set aside in the second trial and another new trial ordered.

It has long been the rule that a federal district court has the power to condition the denial of a motion for a new trial upon consent to a remittitur. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This court promulgated the standard of appellate review for a remittitur in Manning v. Altec, Inc., 488 F.2d 127 (6th Cir. 1973), stating that the action of a trial judge is subject to review only for abuse of discretion. An abuse of discretion in granting a remittitur will be found "only where the quantum of damages found by the jury was clearly within 'the maximum limit of a reasonable range'." Id. at 133. In reaching this determination it is necessary to examine the evidence on damages and the considerations which led the trial judge to order remission of a portion of the verdict. Id.

After scrutinizing the evidence on damages introduced at the first trial, we conclude that the trial judge's order of remittitur was not an abuse of discretion. The inconclusive testimony of the medical experts who had examined or treated Mr. Smith indicated that the automobile accident had caused a temporary and non-permanent injury to Mr. Smith's back or neck. Conspicuously absent was direct evidence from any physician establishing a causal relationship between the automobile accident and the long-term or permanent disability alleged by Mr. Smith. In fact, the evidence tended to show that Mr. Smith's injury was a short-term, soft tissue ligamentos sprain.

The testimony of Dr. Vieth, the neurosurgeon who treated Mr. Smith beginning in September, 1974, indicated that Mr. Smith's pain and related symptoms could not be explained by any objective medical diagnosis. It is true that...