Tennessee Farmers Mut. Ins. Co. v. Hammond

• Decision Date: 23 May 1957
• Citation: 43 Tenn.App. 62,306 S.W.2d 13
• Parties: TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Plaintiff in Error, v. W. N. HAMMOND, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 13

306 S.W.2d 13

43 Tenn.App. 62

TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Plaintiff in Error, v. W. N. HAMMOND, Defendant in Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

May 23, 1957.

Dissenting Opinion June 26, 1957.

Certiorari Denied by Supreme Court Oct. 4, 1957.

Heathcock, Elam & Cloys, Union City, and John M. Drane, Newbern, for plaintiff in error.

Miles & Miles, Union City, for defendant in error.

BEJACH, Judge.

This cause involves an appeal in the nature of a writ of error by the Tennessee Farmers Mutual Insurance Company from a judgment against it in the sum of $10,000 plus $1,246.79 interest thereon, making a total of $11,246.79, rendered in the Circuit Court of Obion County, Tennessee in favor of W. N. Hammond. The parties will be styled, as in the lower court, plaintiff and defendant, or called by their respective names, W. N. Hammond having been plaintiff and Tennessee Farmers Mutual Insurance Company the defendant in the lower court.

The plaintiff was on October 31, 1952, and had been for some time prior thereto, insured by the defendant under the provisions of an automobile liability insurance policy covering his Chevrolet automobile, which policy limited liability of the insurance company to $10,000 for each person injured and to $20,000 for any one accident. On October 31, 1952, the said automobile, driven by the plaintiff, was involved in an accident at the Lindenwood School in Obion County, Tennessee, where a Hallowe'en party was being held. In that accident, Mrs. Helen Mansfield and Mrs. Eva Mae Mansfield were injured. The injuries to Mrs. Helen Mansfield were extremely severe, her left leg having been crushed between the bumper of the automobile and the concrete steps of the school building, which steps she was ascending at the time the automobile driven by W. N. Hammond ran into her from the rear. Her leg was shattered, and, as a result she was hospitalized for eight months, during which time she had eleven operations performed on her leg, the use of which has been permanently impaired. The medical, nursing, and hospital bills for Mrs. Helen Mansfield, incurred as a result of this injury, amounted to $6,000. Following this accident, W. N. Hammond was sued by Mrs. Helen Mansfield for $50,000, by her husband, Walter W. Mansfield, for $10,000, and by Walter W. Mansfield as administrator of Mrs. Eva Mae Mansfield, his mother, for $20,000. Mrs. Eva Mae Mansfield died subsequent to the accident, but not as a result of same. These suits resulted in judgments in the Circuit Court in favor of Mrs. Helen Mansfield for $17,000, in favor of Walter W. Mansfield for $3,000, and in favor of Walter W. Mansfield as administrator of Mrs. Eva Mae Mansfield for $500, said judgments having been rendered March 3, 1954. Appeals from the judgments in favor of Mrs. Helen Mansfield and Walter W. Mansfield were prayed and perfected by W. N. Hammond. The defendant, Walter W. Mansfield, appealed from the judgment in his favor for $3,000, claiming that it was inadequate, and, as administrator, from the judgment for $500, on the same ground. All three judgments were affirmed by the Court of Appeals, and certiorari was denied by the Supreme Court. See Hammonds v. Mansfield, Tenn.App., 296 S.W.2d 652. The Tennessee Farmers Mutual Insurance Company paid the judgment of $500 in favor of the administrator of Mrs. Eva Mae Mansfield and paid $10,000 of the total amount of the two judgments amounting to $20,000 rendered against W. N. Hammond in favor of Mrs. Helen Mansfield and Walter W. Mansfield. Thereafter, on October 10, 1955, W. N. Hammond brought suit against the Tennessee Farmers Mutual Insurance Co., seeking a recovery from it of $10,000, representing that part of the judgments against him which the insurance company had not paid, together with interest thereon. The basis of this suit, which is the case at bar, is the claim by W. N. Hammond that the defendant, Tennessee Farmers Mutual Insurance Co., had an opportunity to settle the claims of Mrs. Helen Mansfield and Walter W. Mansfield, her husband, within the policy limit of $10,000, but had arbitrarily and in bad faith refused to make this settlement, although there was no fair and reasonable prospect of escaping liability or holding the recovery within the policy limits. The defendant filed pleas in which it denies bad faith on its part, denies that it had an opportunity to settle the claims of Helen Mansfield and Walter W. Mansfield within the policy limits, and avers that its only opportunity to settle was a lump sum settlement of all three cases, including that of Mrs. Eva Mae Mansfield's administrator, along with those of Walter W. and Helen Mansfield. Defendant's pleas deny the extent of the injuries to Mrs. Helen Mansfield as alleged, deny that it failed to keep plaintiff advised as to the negotiations of settlement, deny that it consciously risked loss to plaintiff in an attempt to protect its rights, deny that it placed the rights of defendant ahead of the plaintiff's rights, and aver that it acted honestly and with due consideration of the best interest of the plaintiff and of its obligations to him.

The cause was tried before the Circuit judge and a jury with the result that a verdict was returned in favor of the plaintiff, W. N. Hammond, and against the Tennessee Farmers Mutual Insurance Co., in the sum of $10,000, with interest thereon from March 3, 1954. After a motion for a new trial had been overruled, the defendant filed an appeal in the nature of a writ of error, which appeal has been perfected.

The defendant, Tennessee Farmers Mutual Insurance Co., as appellant in this court, has filed fifteen assignments of error. It will not be necessary to discuss each of these fifteen assignments of error separately. Able counsel for defendant did not do so, either in their briefs, or in their arguments before this court, and following their example, we will discuss them separately only so far as may be necessary to dispose of the essential merits of the appeal.

Assignment of Error Number I complains of the failure of the trial judge to grant the defendant's motion for a directed verdict, and therefore raises the question of whether there is any material evidence in the record to sustain the jury's verdict. This assignment is, in our opinion, determinative of the lawsuit.

Assignments Numbers II, XI, XII, and XIII complain of the trial judge's action in overruling defendant's objections to testimony offered on behalf of plaintiff. Assignments Numbers III, IV, V, VI, VII, VIII, IX, and X complain of the trial judge's having refused to give instructions to the jury contained in special requests tendered by defendant. Assignment Number XIV complains of the trial judge's having overruled defendant's objection to part of the argument made by plaintiff's attorney. Assignment Number XV is based on the claim that the trial judge failed to exercise a trial judge's function as the thirteenth juror.

In our opinion, as stated above, the first assignment of error presents the controlling issue in this lawsuit. Before passing upon it, we will, therefore, dispose of the other assignments and then discuss, at some length, the issues presented by it.

We have given due weight to the objections made by the defendant to the testimony admitted in favor of the plaintiff over the objection of defendant, and have given careful consideration to the argument of counsel on all of the assignments of error with reference thereto, and have reached the conclusion that all of defendant's objections are without merit. The testimony offered and admitted by the trial judge with reference to the extent of the injuries sustained by Mrs. Helen Mansfield in the accident of October 31, 1952 did not amount, in our opinion, to a retrial of the damage suit growing out of that accident. On the contrary, we think such testimony was properly admissible for the purpose of enabling the trial jury in the instant case to intelligently pass on the issue presented of whether or not there had been a reasonable probability of holding the verdict in the damage suit case within the policy limits. Likewise, the testimony of plaintiff as to his insistence on settlement of the case, and the cross examination by plaintiff's attorney of defendant's claim agent, Keith Rogers, tended to throw light on the issue of defendant's bona fides or lack of it in failing or refusing to settle within the policy limits. In any event, after an examination of the entire record of the cause, it does not affirmatively appear that the rulings of the trial judge, even if erroneous, affected the results of the trial. Accordingly, in compliance with the provisions of section 27-117, Tenn.Code Ann., Assignments of Error II, XI, XII, and XIII are overruled.

With reference to the trial judge's refusal to give in charge to the jury the special requests presented by defendant, we think that, either the general charge of the judge sufficiently and adequately covered the subject matter of these instructions, that, as worded, they were properly refused, or that it does not affirmatively appear that the refusal of these requests affected the results of the trial, as required by Section 27-117, Tenn.Code Ann. Assignments of Error III, IV, V, VI, VII, VIII, IX, and X are accordingly overruled.

Assignment of Error XIV complains of the trial judge's having overruled defendant's objection to the argument to the jury made by plaintiff's attorney, that the fact that Walter Wayne Mansfield was a man of no property may have influenced the refusal or failure of the insurance company to settle the damage suit claims. This argument, in our opinion, did not go outside the record, because that conclusion might fairly have been drawn from Mr. Walter Wayne Mansfield's testimony. Likewise, as with reference to the assignments of error hereinabove disposed of, the provisions of Section 27-117, Tenn.Code Ann.,...