Williams v. Daniels

• Decision Date: 23 June 1960
• Citation: 344 S.W.2d 555,48 Tenn.App. 112
• Parties: Fred WILLIAMS, Plaintiff-in-Error, v. Avalon Elizabeth DANIELS, Defendant-in-Error. Fred WILLIAMS, Plaintiff-in-Error, v. Chester DANIELS, Defendant-in-Error. 48 Tenn.App. 112, 344 S.W.2d 555
• Court: Tennessee Court of Appeals

Page 555

344 S.W.2d 555

Fred WILLIAMS, Plaintiff-in-Error, v. Avalon Elizabeth DANIELS, Defendant-in-Error.

Fred WILLIAMS, Plaintiff-in-Error, v. Chester DANIELS, Defendant-in-Error.

48 Tenn.App. 112, 344 S.W.2d 555

Court of Appeals of Tennessee, Western Section at Jackson.

June 23, 1960.

Certiorari Denied by Supreme Court March 10, 1961.

[48 TENNAPP 113] Lloyd S. Adams, Adams & Adams, Humboldt, for plaintiff in error.

Robert V. Utley, Milan, for defendants in error.

AVERY, Presiding Judge (W.S.).

These suits originated in the Circuit Court of Gibson County, Tennessee and the plaintiffs in each case are husband and wife. The two suits were tried together in the Court below; there is one bill of exceptions covering both cases; there [48 TENNAPP 114] was a verdict and judgment for each plaintiff; exceptions were seasonably saved; motions for new trials made and overruled; appeals prayed, granted and perfected by defendant, and both cases incorporated in the same record filed in this Court, argued at the same time and will be disposed of in one Opinion. There were two separate verdicts and judgments below and will be two separate judgments in this Court.

The plaintiffs will be referred to in this Opinion in accord with the status each had in the Court below or by personal names; and the defendant will be referred to in accord with the status he had in the Lower Court.

The plaintiff, Avalon Elizabeth Daniels, was injured on or about December 19, 1958, while driving her automobile along Highway 45 East within the corporate limits of the city of Milan, when the defendant while driving his automobile in the same direction on the same Highway so operated his automobile that it struck the automobile of the plaintiff in the rear, and in which collision and as a direct result thereof, the plaintiff, Avalon Elizabeth Daniels, sustained an injury which is usually referred to as a 'whiplash injury'.

The declaration alleges that the plaintiff was hospitalized for a period of 28 days and she had continually suffered from the date of the injury; that she wore a brace on her back and a leather collar and brace on her neck and had been unable to perform her household duties for months; that slight movements of her body caused excruciating pain and discomfort, and that her injuries were permanent. She alleged her damages to be $15,000 and demanded a jury to try the case.

[48 TENNAPP 115] The declaration of the plaintiff, Chester Daniels, avers the same character of accident in practically the same words, and that the injuries of the same character were inflicted upon his wife; described the pain she had suffered and her incapacity to do her housework, the same as alleged in her declaration; that he was required to employ a housekeeper because of his wife's injury so sustained; that he had spent large sums of money for medicine, doctors' bills, hospital bills, and other expenses, and 'lost the services and consortium of his wife, Mrs. Avalon Elizabeth Daniels, which expense, loss of service, and consortium will continue indefinitely in the future'. He alleges his damages to be $5,000.

The defendant first filed general issue pleas of not guilty to each declaration. On the day the cases were called for trial, to-wit, August 17, 1959, defendant filed a motion in each of the cases to be----

'(1) allowed to withdraw his not guilty plea; and

'(2) permitted to plead to each declaration by saying:

'The defendant admits that the automobile accident described in the declaration was caused by proximate negligence on the part of the defendant and that plaintiff was not guilty of contributory negligence.

'Defendant denies the plaintiff was injured to the extent averred in the declaration and demands of plaintiff strict proof of all items of damaged claim.

'Having admitted liability to plaintiff, defendant avers therefore, that the only issue for determination [48 TENNAPP 116] by the jury is the amount of damages which plaintiff is entitled to recover.'

The defendant further moved the Court as follows, to-wit:

'Have an order upon plaintiff not to read to the jury and not to refer thereto in the presence of the jury, any allegations in the declaration having to do with or describing an act or acts of negligence on the part of the defendant or the facts surrounding the occurrence of the said automobile accident. Liability having been admitted by defendant, the case should be tried on the issue of damages only and the facts surrounding the occurrence of said automobile accident and the acts of negligence of defendant are immaterial and not the proper subject of proof; and admitting reference thereto or proof thereof in the presence of the jury would be prejudicial to the rights of defendant.'

The Court sustained the defendant's respective motions to the respective declarations. After considerable argument, the Court said to counsel:

'Court: Give me the declaration and I will designate just how much can be read.

(Declarations are handed to the Court)

'State the amount sued for and read the part bracketed in each one of the declarations.'

Thereupon, Mr. Utley, counsel for the plaintiffs, said:

'Mr. Utley: Gentlemen, in the case of Avalon Elizabeth Daniels v. Fred Williams, the amount sued for is $15,000.00. Now by the Court's instructions, [48 TENNAPP 117] I will read the portion bracketed of this declaration and omit the rest of it. (Reads)

'In the case of Chester Daniels v. Fred Williams, the amount sued for is $5,000.00. By instruction of the Court I read the portion that is bracketed in this declaration and omit the balance of it. (Reads)'

Mr. Adams, counsel for defendant, then said:

'Mr. Adams: May it please the Court and gentlemen of the jury, as has already been indicated, the plea of the defendant in each of these cases is to the effect he admits he is liable, but he denies that he owes the amount claimed by the plaintiff and we call upon you gentlemen to assess the damages. I will read what we have: This is for Fred Williams.

(Mr. Adams reads plea and motion)

'And then in the case of Avalon Elizabeth Daniels--(reads). Those are the pleas of the defendant.'

In this Court the brackets referred to as being made by the Court in the declarations are not shown in this record, so we must assume that only that part of the declarations relating to injuries, medical expenses, etc. were read.

There was a verdict and judgment below for the plaintiff, Avalon Daniels, of $6,000, and for the plaintiff, Chester Daniels, of $2,500.

After the record was filed in this Court, errors were seasonably assigned, in the first two of which the defendant alleges error on the part of the Court by the admission, over his objection, of certain testimony of one Dr. R. J. Barnett, in the argument of which his counsel [48 TENNAPP 118] states was an admission of 'medical testimony as to the mere possibility of permanent injury or disability'. The testimony complained of is set out in the assignments.

The third Assignment of Error attacks certain parts of the Charge of the Court to the jury, which counsel states the Court erroneously allowed the jury 'to speculate as to the duration' of plaintiff's injuries and whether they were permanent.

The fourth Assignment of Error attacks that part of the Charge of the Court to the jury relating to 'loss of consortium', and this part of the charge is alleged to be error because it 'overemphasized consortium' and that 'consortium was overly detailed and too emphatic'.

In the fifth and sixth Assignments of Error, it is set forth that the respective verdicts were excessive, and in the case of Mrs. Daniels, the excessiveness was brought about by the alleged admitted improper proof of alleged permanent injury or disability. In the case of Mr. Daniels, the verdict was alleged to be so excessive as to indicate passion, prejudice, or unaccountable caprice on the part of the jury.

In the motion for a new trial, proper specifications of error were detailed and a basis formed for each assignment.

Considering Assignments of Error I, II and III, which should be disposed of together, as related to the injuries of Mrs. Daniels, the specific testimony of Dr. R. J. Barnett, who testified by deposition, objected to as set forth in the Assignments, is as follows:

(1) 'Q. 11 Is it entirely possible, Doctor, that she may have to go on taking exercises, having to use [48 TENNAPP 119] traction and possibly relaxants as long as she lives? A. She may have to have it for a long period of time; how long, it is very difficult to say.

'Q. 12 I will restate my question, Doctor, I will ask you, for how long a period of time is it possible that the same treatments may be prescribed and needed? A. It could be permanent.'

Mr. Adams objected to Q. 11 as 'leading' at the time the deposition was taken, which objection brought about a restatement of the question, and at the trial when the deposition was read, Mr. Adams renewed his objection, adding, because it calls for an answer merely as to 'what is entirely possible', which is not the test and not proper proof. The Court sustained that objection so we can give no consideration to the Assignment as it relates to Q. 11, nor the answer thereto. He raises the same objection to Q. 12, that it called for the expression of a mere possibility and that it was leading. The Court overruled that objection and permitted the question and answer to be read to the jury.

(2) 'Q. 19 I would like to ask you, then, is it possible that the curvature of the cervical spine may become worse as time goes on? A. Yes, sir.

'Q. 20 What is the reason for that, Doctor, why would the curvature become worse as time goes on? A. The reason for this would be increasing amounts of osteoarthritis.'

At the time the deposition was taken the parties agreed that all objections, except such as might relate to the form of the question, were reserved for the hearing, and when questions No. 19 and No. 20 were being read to the [48...