Transports, Inc. v. Perry

• Decision Date: 17 March 1967
• Citation: 24 McCanless 57,414 S.W.2d 1,220 Tenn. 57
• Parties: , 220 Tenn. 57 TRANSPORTS, INC., and Rodger E. King, Petitioners, v. Viola PERRY and Buford Perry, Respondents.
• Court: Tennessee Supreme Court

Page 1

414 S.W.2d 1

24 McCanless 57, 220 Tenn. 57

TRANSPORTS, INC., and Rodger E. King, Petitioners, v. Viola PERRY and Buford Perry, Respondents.

Supreme Court of Tennessee.

March 17, 1967.

Waring, Walker, Cox & Lewis, Memphis, Erich W. James and Allen Cox, Jr., Memphis, of counsel, for petitioners.

Taylor & Taylor, Memphis, for respondents.

OPINION

WILLIAM J. HARBISON, Special Justice.

These two cases arose out of an automobile-bus collision which occurred in Memphis, Tennessee, on August 2, 1963, and were consolidated for trial. The parties will be referred to herein as they appeared in the trial court.

Plaintiff, Mrs. Viola Perry, was a passenger in an automobile which was struck from the rear by a bus being driven by the defendant, Rodger E. King, and owned by his employer, Transports, Inc. Mrs. Perry suded for personal injuries allegedly sustained by her in the accident, and her husband sued for loss of consortium, medical and hospital expenses incident to the injuries sustained by his wife. The cases were tried for four days in the Circuit Court of Shelby County, Tennessee. The defendants denied liability, and also strenuously controverted the claims of Mrs. Perry as to the degree and extent of injuries suffered by her as a result of this accident. The jury returned a verdict in favor of Mrs. Perry for $1,000.00 and in favor of her husband, Buford Perry, for $3,000.00. The trial judge approved these verdicts and plaintiffs appealed to the Court of Appeals. That court reversed the judgments and remanded the cases for a new trial, primarily upon the theory that the verdicts were inconsistent and irreconciable. The primary assignment of error made before the Court of Appeals by the plaintiffs was the inadequacy of the verdicts, and all other assignments were incidental thereto. The Court of Appeals sustained this primary assignment, and also held that the trial judge committed error in excluding an excerpt from a medical deposition and in giving a special instruction to the jury at the request of the defendants.

The Court of Appeals reached its decision largely upon the basis that if Mrs. Perry was entitled only to $1,000.00 for the injuries sustained by her in the accident, then the verdict in favor of her husband was excessive. On the other hand, the husband had testified to having incurred medical, hospital and drug bills in excess of $3,100.00. The Court of Appeals felt that since the jury had awarded him almost this amount, then the jury must have found that the expenses incurred by him were for the necessary treatment and cure for his wife resulting from injuries sustained by her in the accident. The Court of Appeals, therefore, reasoned that the verdict in favor of the wife was inadequate if the verdict for the husband should be sustained.

This Court granted a petition for certiorari filed by the defendants. We have heard oral arguments and have considered the briefs and the record in the case. We have concluded that the Court of Appeals was in error in setting aside the jury verdicts, and we are of the opinion that the verdicts of the jury, concurred in and approved by the trial judge, should be reinstated.

As stated, the accident out of which these cases arose occurred on August 2, 1963. There was very little damage to either vehicle in the accident, and the testimony generally indicates that there was a minor impact between the defendants' bus and the automobile in which Mrs. Perry was riding. Mrs. Perry did not enter the hospital until August 15, 1963. There is testimony that immediately following the accident she stated that she was not injured. There is, however, other testimony that she made complaint of injury immediately after the accident and during the next several days. She was examined in the emergency room of St. Joseph Hospital immediately after the accident, and then remained at home for the next thirteen days. She appeared in Traffic Court in the interim in connection with charges filed against the bus driver arising out of the accident.

Mrs. Perry entered St. Joseph Hospital on August 15, 1963, and remained there until October 5, 1963. The surgeon who had attended her in the interim between the date of the accident and her admission to the hospital, Dr. E. A. Crawford, testified that she sustained a whiplash or cervical strain in the accident. X-rays of the lumbar spine at that time showed some degenerative changes. The doctor treated her on several occasions, but while her neck condition improved somewhat, a painful condition in her lower back became more severe, according to his testimony. He admitted her to the hospital on August 15, and called in a neurosurgeon, Dr. Peter Wallace.

Dr. Wallace, as well as every other physician who testified in this case, stated that Mrs. Perry was a most difficult patient to evaluate, but that when she failed to respond to some ten days of traction and other conservative therapy, he felt that a myelogram should be done to rule out nerve root compression. The myelogram was performed on August 28, 1963, and as a result thereof the doctor suspected a herniated disc. In view of the myelographic study, Dr. Wallace recommended exploratory surgery, and this was performed on September 3, 1963. No herniated disc was found, but 'a hard bulging mass running transversely, which was a lumbar bar underneath the nerve root at the L--4 interspace' was found. Dr. Wallace described this as a bony, hard area of calcification which is called degenerative or hypotrophic arthritis, which, he said, 'is known to take a long time to form.'

Mrs. Perry was discharged from St. Joseph Hospital on October 5, 1963, but thereafter she developed numerous other complaints, including an alleged loss of continence with respect to her bodily functions, alternating periods of constipation and diarrhea, numbness in the vagina and a number of other symptoms and complaints.

The voluminous medical testimony in the record indicates that Mrs. Perry had a hysterectomy terectomy performed in 1946 and that she had a series of injections for hemorrhoids, and had subsequently had hemorrhoids removed in the 1940's. She had further rectal surgery in 1960, and there is evidence that from that time through the date of the accident she had made complaints of difficulty in controlling her bodily functions. She had numerous other operations and complaints over a period of many years prior to this accident.

It is sufficient to say that the medical testimony in this record is highly conflicting, and there is serious controversy as to whether Mrs. Perry sustained any significant injuries whatever in the accident, or as to whether the accident aggravated or heightened any of her pre-existing complaints. An independent neurosurgeon, appointed by the trial judge, gave a report which was read in evidence on behalf of the defendants, and this report contained little which could afford encouragement to the plaintiffs in support of the claim that Mrs. Perry sustained significant injury in this automobile accident, or an injury which which would have necessitated the surgery which was later performed. This physician, Dr. Murphrey, found to objective evidence of cervical strain, expressed doubt as to whether the low back was injured in the accident, and stated that he did not believe Mrs. Perry had sustained all of the sensory losses such as she claimed.

In the declaration filed on behalf of plaintiffs it was alleged that Mrs. Perry had sustained a fractured vertebra in her spine as a result of the accident, but this allegation was entirely unsupported by proof. There was no claim in the declaration that plaintiff had suffered from pre-existing conditions which were aggravated by this accident, and, on its face, the declaration claimed that all of the complaints and symptoms from which plaintiff later suffered were directly and proximately caused by the accident. Nevertheless, in view of the manner in which the proof developed, the trial judge fully charged the jury on the law with respect to aggravation of preexisting conditions, and no complaint was made with respect to this portion of the charge. At the request of the defendants, however, the trial judge did give a special instruction to the general effect that the defendants would not be liable for medical treatment, or the results thereof, which...