Smith v. Shelton

• Decision Date: 31 July 1978
• Parties: Robert F. SMITH, Commissioner, Tennessee Department of Transportation, Petitioner, v. Madison SHELTON and wife, Ollie Shelton, Respondents. 569 S.W.2d 421
• Court: Tennessee Supreme Court

Page 421

569 S.W.2d 421

Robert F. SMITH, Commissioner, Tennessee Department of Transportation, Petitioner, v. Madison SHELTON and wife, Ollie Shelton, Respondents.

569 S.W.2d 421

Supreme Court of Tennessee.

July 31, 1978.

Brooks McLemore, Jr., Atty. Gen., Robert J. Ames, Asst. Atty. Gen., Nashville, Ray Hollis, Special Trial Counsel, Waynesboro, for petitioner.

W. A. Harwell, Harwell, Bottoms & Plant, Lawrenceburg, for respondents.

OPINION

FONES, Justice.

We granted certiorari in this condemnation case to resolve a conflict of opinion among the members and sections of the Court of Appeals on the question of the proper scope of review to be applied by the Court of Appeals where, after a jury verdict for plaintiff, the trial judge suggests an additur.

What is said herein with respect to the scope of review of additurs applies to remittiturs, and vice versa. The cases cited herein prior to 1969 involve remittiturs, but insofar as the scope of review is concerned, would dictate the same results when applied to additurs. Remittiturs were authorized by case law in 1858 but additurs were first authorized by Chapter 137, Acts of 1969.

The older view, supported by a substantial majority of the cases, is that the Court of Appeals will not disturb the trial judge's use of a remittitur, unless it finds an abuse of discretion.

The other view will be referred to as the de novo standard of review. It is of recent origin and has not attained uniformity of expression in the cases that are said to have applied it.

Although remittiturs were judicially authorized in Tennessee long before the turn of the century, we have not been able to find any cases wherein a standard of appellate review of a trial judge's use of remittitur was articulated prior to 1926. In Pryor Brown Transfer Co. v. Gibson, 154 Tenn. 260, 290 S.W. 33 (1926), the Court, responding to plaintiff's contention that the amount remitted by the trial judge should be restored, said the following:

"This is only done where it appears that the trial court has abused his discretion, which is not the case here." 154 Tenn. at 272, 290 S.W. at 36.

No citation of authority was given and no rationale discussed.

Many cases since 1926 have referred to the role of the Court of Appeals in passing on the trial judge's use of remittitur, as limited to a finding of abuse of discretion, also without discussion of the basis for the rule. ¹

The origin of the de novo review rule cannot be pinpointed with precision. The majority opinion in the instant case represents the strongest advocacy for that school of thought and relies upon Speight v. Newport, 503 S.W.2d 202 (Tenn.App.1973); Jones v. Cocke County, 61 Tenn.App. 555, 456 S.W.2d 665 (1970); Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440 (1958); and the verbiage of the remittitur and additur statutes.

Our research has convinced us that neither of these views provides the proper guidelines for appellate review where the trial judge has disagreed with the jury on the amount that a plaintiff is entitled to recover.

We agree with the dissenting member of the Court of Appeals that the abuse of discretion standard of review has obviously meant different things to different courts. A de novo standard of review, if applied to remittiturs and additurs, would sanction the substitution of judicial judgment for that of the jury in assessing damages, an inappropriate and legally untenable result.

I.

In Speight v. Newport, supra, also a condemnation case, the Court of Appeals observed that the process of reasoning applied to remittiturs could be applied in reverse to additurs, quoted the abuse of discretion rule from a case involving a remittitur, and concluded that there was no reason why it should not apply to additurs. At that point the opinion appears to have unequivocally endorsed the abuse of discretion rule. But, prior to an analysis of the proof of damages, the Court continued with a process of reasoning based upon the additur statute that resulted in the conclusion that the trial judge's suggestion of an additur was reviewable pursuant to T.C.A. § 27-303, a de novo review. The reasoning was that when the trial judge suggested an additur, the State (in the posture of a defendant, in other than condemnation cases) had two choices, (1) a new trial or (2) accept the additur under protest and appeal; that rejection of the new trial amounted to a waiver of the right to try the issue again before a jury and A fortiori, "the question of additur became one which was decided by the trial Judge without intervention of a jury and this action is reviewed here pursuant to T.C.A. § 27-303, with the usual presumption that the judgment of the trial Court is correct unless the evidence preponderates against it." 503 S.W.2d at 205. We do not agree that the election to accept a remittitur or an additur rather than a new trial results in transforming the case on appeal to a non-jury case reviewable pursuant to T.C.A. § 27-303. That section is expressly limited to cases tried without the intervention of a jury, from which a simple appeal lies. Speight and the instant case were tried with the intervention of a jury and the appeal is expressly governed by T.C.A. § 27-308, being in the nature of a writ of error. Neither the trial judge's disagreement with the amount of the jury verdict, nor acceptance of a remittitur or additur rather than a new trial, provides a basis for the application of T.C.A. § 27-303 and we expressly overrule that holding in Speight.

In Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440 (1958), a jury verdict of $25,000 was reduced to $12,500 by the trial judge. Plaintiff and defendant appealed, and the Court of Appeals in response to plaintiff's insistence that the jury verdict be restored held that the trial judge's remittitur was excessive but that a $5,000 reduction of the jury verdict was proper. The majority opinion of the Court of Appeals in the instant case implicitly regards the following quote as supportive of a de novo review:

"The clear legislative intent, as reflected in the foregoing Sections of the Code, was to confer upon the appellate courts full power and authority to revise and correct all errors consistent with recognized rules of appellate practice and procedure." 313 S.W.2d at 443.

The above quote was a portion of the Brown Court's response to the question of whether or not the Court of Appeals had the Authority to change the amount of the remittitur suggested by the trial judge. Later, responding to plaintiff's contention that it was error for the Court of Appeals not to reinstate the jury's verdict, the Court said this:

"While there is an expression in Lambert Bros. v. Larkins, supra (Tenn., 296 S.W.2d 353), which suggests that this was its duty pursuant to its right of revision to correct errors, we feel that the authority to do so, as well as to correct other errors, rests within the sound discretion of the court. It was not the intention of the Legislature to set up an arbitrary rule to be followed by the courts in every case. Any such attempt to limit the judgment of the courts would come close to the exercise of a judicial function." 313 S.W.2d at 443-444.

We do not interpret Brown as specifically dealing with the appropriate scope of review of remittiturs and additurs. The Court appears to have restricted the opinion to the Power of the Court of Appeals to select a figure different from that awarded by the jury or the trial judge.

The majority opinion in the instant case also relies on the language of the remittitur and additur statutes, to wit, "if the Court of Appeals is of the opinion that . . ." as authorizing a de novo review. We do not find any language in the statutes prescribing a scope of review of the action of the trial judge in granting remittiturs or additurs. When the Legislature intends to address the scope of review applicable to a particular type of proceeding, it knows how to express it. For example, see T.C.A. § 4-523, § 27-303, § 27-408 and § 27-911.

We think the legislative purpose motivating its very limited entry into the remittitur and additur aspects of a civil suit can be clearly seen from the status of the case law at the time of passage of the three acts.

The first remittitur statute became law on April 6, 1911, Chapter 29, Acts of 1911. Prior to its enactment, as heretofore noted, trial judges were authorized to reduce jury verdicts as an alternative to granting a new trial. See Branch v. Bass, 37 Tenn. 366 (1858). However, a plaintiff could not accept the remittitur under protest and appeal. Massadillo v. Railway Co., 89 Tenn. 661, 15 S.W. 445 (1891). If he accepted the reduced amount, rather than a new trial, judgment was entered for that amount, from which plaintiff could not appeal. Plaintiffs were given the right to appeal for the first time by Chapter 29, Acts of 1911.

In Lambert Bros. v. Larkins, 200 Tenn. 674, 296 S.W.2d 353 (1955), the trial judge remitted $5,000 of a $20,000 jury verdict and the Court of Appeals affirmed. Defendant's petition for certiorari, seeking a further reduction of the award was granted, but the majority of the Court affirmed the Court of Appeals. The majority of the Court did not discuss the facts and stated the applicable rule to be that, in the absence of a corrupt verdict, the concurrence of the two lower courts as to the amount of damages, if supported by material evidence, would not be disturbed by the Supreme Court. The majority relied upon Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68 (1951), and some of the language in T.C.A. § 27-119. Mr. Justice Swepston, dissenting, objected to what he regarded as an overly rigid statement of the concurrence rule and factually found no material evidence to support the award at the figure of $15,000. Mr. Justice Swepston reached the conclusion that the Act of 1911 was enacted for the purpose of permitting a plaintiff to accept a remittitur under protest...