Waller v. Skelton

• Decision Date: 03 May 1948
• Citation: 211 S.W.2d 445,186 Tenn. 433
• Parties: WALLER v. SKELTON et al.
• Court: Tennessee Supreme Court

211 S.W.2d 445

186 Tenn. 433

WALLER v. SKELTON et al.

Supreme Court of Tennessee.

May 3, 1948

Error to Circuit Court, Montgomery County; Dancey Fort, Judge.

Personal injury action by Eddie Lawrence Waller against Solia Skelton and another. Jury returned a verdict for $18,000 but the trial court overruled a motion for new trial on condition of remittitur of $13,000 and plaintiff and defendants appealed to the Court of Appeals, 212 S.W.2d 690, which restored the judgment to $18,000 and the defendants bring certiorari.

Certiorari denied.

NEIL Chief Justice.

The plaintiff Waller, a young Negro man recovered a judgment for $18,000 in the Circuit Court of Montgomery County for personal injuries which he received in an automobile accident. The defendant moved for a new trial upon 11 grounds. The first two grounds are (1) that there is no evidence to support the verdict and (2) that the weight of the evidence preponderates against the verdict and in favor of the defendants. The third ground is as follows: 'The verdict of the jury evinced passion, prejudice and caprice. Defendants are advised that this is the largest verdict ever rendered by a jury in Montgomery County for personal injuries. The sum is so grossly excessive as to shock public conscience. The only explanation of the amount thereof, is that it was the result of prejudice against taxi drivers as a class, or against defendants.'

All other grounds related to alleged errors of the trial judge in refusing to grant certain special requests.

The court overruled the motion in its entirety except ground No 3 above referred to. In passing upon that ground of the motion it is clear that he thought the verdict was excessive. He suggested a remittitur of $13,000. His comment on the excessiveness of the verdict is as follows: 'In the case of Eddie Lawrence Waller v. Solia Skelton and Albert Roberts d/b/a Your Cab Company, I suggest a remittitur of $13,000.00 and if it is not accepted a new trial will be granted. I am not saying that the verdict in this case evidenced that the jury acted with prejudice or passion. I don't understand just what was on their minds unless it was inflation and the high cost of living. I cannot account for it. Dr Pannell's testimony was that the injuries were permanent and Dr. Workman testified that the plaintiff might recover I have seen many such injuries and I believe the plaintiff will recover. The verdict is otherwise approved.'

It will be noted that the trial judge refrained from expressing the view that the jury's verdict indicated passion or prejudice. He simply contented himself by saying, 'I cannot account for it,' and in conclusion said, 'I have seen many such injuries and I believe the plaintiff will cover.'

The foregoing statement was made immediately after counsel had argued the motion for a new trial.

The remittitur was accepted under protest and an appeal prayed and granted to the Court of Appeals. Immediately after the trial judge had overruled the motion he made this additional statement: 'My attention has just been directed to the fact that the wording of ground 3 of the motion for a new trial appears to come within Section 8987 of the Code of Tennessee and I direct that the order on this motion and the suggesting of the remittitur showed that my action is based on grounds providing for acceptance and making of a remittitur, under protest, in accordance with Section 8987 of the Code of Tennessee.'

The minute entry made in pursuance of the court's direction is as follows: 'And upon consideration, the Court does find that Ground III of said motion is well taken in that the verdict of the jury in favor of plaintiff is so excessive as to indicate passion, prejudice or unaccountable caprice on the part of the jury, and the Court doth suggest a remittitur, on that account, on the part of the plaintiff in the amount of Thirteen Thousand Dollars ($13,000.00) with the proviso that in case the plaintiff refuses to make such remittitur, a new trial will be awarded.'

Both the plaintiff and defendants appealed to the Court of Appeals and assigned numerous errors.

The plaintiff appealed solely upon the ground that the circuit judge was in error in directing the remittitur. The defendants complain of many errors by the trial court, all of which were considered and overruled by the Court of Appeals. They are not now important. The plaintiff's assignment was sustained and an order made restoring the judgment to $18,000.

The defendants have filed a petition for certiorari complaining of this action of the Court of Appeals. There are five assignments of error, but they singly and collectively involve the one question above mentioned.

The Court of Appeals, in an able and exhaustive opinion by Judge Felts, discussed the evidence bearing upon the nature and extent of plaintiff's injuries. The Court disagreed with the trial judge as to the weight to be given to the testimony as to the seriousness of plaintiff's injuries and especially the probative value of medical experts who treated the plaintiff. In discussing this phase of the testimony, the Court said: 'The same thing is true in the case before us. It would seem that the learned trial judge reached his conclusion as to the excessiveness of the verdict largely because of his doubt or distrust of the expert testimony as to the permanency of plaintiff's injuries, and because of his view that it was not proper to consider the inflation and the high cost of living in determining the amount of damages necessary to compensate for plaintiff's injuries. But for these two errors his Honor doubtless would have approved the amount as he did the verdict in all other respects.'

Counsel for the petitioners insist that the Court of Appeals in restoring the the $13,000 which the trial court had ordered remitted, and in affirming the original judgment for $18,000, committed prejudicial error for the following reasons:

'1. The record shows without dispute that the learned Circuit Judge granted the remittitur solely because in his opinion the amount of the verdict was unwarranted by the proof relating to the extent of the respondent's injuries, and the remittitur was ordered upon the sole and exclusive ground that the verdict was excessive.

'2. The learned Circuit Judge expressly held that his remittitur was not based upon any conclusion of prejudice or caprice on the part of the jury.

'3. After making the above unqualified rulings the learned Circuit Judge, apparently in an effort to accommodate counsel as to enable an appeal to be taken on the remittitur and without drawing the proper distinction between a remittitur predicated upon the excessiveness of the verdict and the statutory remittitur predicated solely upon passion, prejudice or unaccountable caprice on the part of the jury, directed that his order or remittitur be entered under the statute rather than upon the ground upon which it was actually predicated.

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'Petitioners earnestly insist that the learned Court of Appeals had no jurisdiction whatsoever to act upon the remittitur as one granted under Section 8987 of the Code where the record upon its face affirmatively disloses that the Circuit Judge's action was not in fact taken under the statute even though he directed that the order show otherwise. Under such an admitted state of facts the Court of Appeals should have either dismissed the respondent's appeal or at most remanded the case to the Circuit Court of Montgomery County for the respondent to elect whether he would accept the remittitur or have a new trial granted.'

It is argued by petitioners that a remittitur for mere excessiveness 'fails to come within the provisions of Section 8987 of the Code'; that the appellate court will not be controlled by a minute entry when the bill of exceptions affirmatively shows that it contradicts statements made by the trial judge when he overruled the motion for a new trial.

Code § 8987 provides for review by the Court of Appeals of alleged errors by the trial judge in suggesting a remittitur. It reads as follows: 'In all jury trials had in civil actions, after the verdict has been rendered, and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury, and a remittitur is suggested by him on that account, with the proviso that in case the party in whose favor the verdict has been rendered refuses to make the remittitur, a new trial will be awarded, the party in whose favor such verdict has been rendered may make such remittitur under protest, and appeal from the action of the trial judge to the court of appeals; and if, in the opinion of said court of appeals, the verdict of the jury is not so excessive as to indicate passion, prejudice, partiality, corruption, or unaccountable caprice on the part of the jury, and the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.'

We think the weight of authority is...