Wilson v. Cook Mfg. Co.

• Decision Date: 01 April 1966
• Citation: 405 S.W.2d 584,56 Tenn.App. 129
• Parties: Buddy WILSON, Plaintiff in Error, v. COOK MANUFACTURING CO., and Carl Vernon Merriman, Defendants in Error.
• Court: Tennessee Court of Appeals

Page 584

405 S.W.2d 584

56 Tenn.App. 129

Buddy WILSON, Plaintiff in Error, v. COOK MANUFACTURING CO., and Carl Vernon Merriman, Defendants in Error.

Court of Appeals of Tennessee, Middle Section.

April 1, 1966.

Certiorari Denied by Supreme Court July 5, 1966.

Raulston & Swafford, Jasper, for plaintiff in error.

Kelly & Cameron, South Pittsburg, for defendants in error.

OPINION

HUMPHREYS, Judge.

One Saturday morning as Buddy Wilson was driving towards his home in his wife's automobile, a truck belonging to Cook Manufacturing Company, driven by Carl Vernon Merriman, came into glancing contact with the Wilson automobile in passing, causing it to leave the roadway and run upon some large boulders in the edge of the highway right-of-way. While Wilson was not operating at a fast rate of speed, and the collision and the resulting loss of control and the ending up of the automobile on the boulders did not result in broken bones or serious lacerations, Wilson was thrown about in the car's interior so as to injure his back.

He consulted a surgeon who employed the usual treatments: heat, massage, braces, and traction. When these afforded Wilson no lasting relief, a test was made which showed a lesion in the lumbar spine at the level of L--4, L--5. Following this test corrective disc surgery was performed. The lumbar area involved was exposed and the disc, which was found to be swollen and causing the trouble, was excised.

Plaintiff's own testimony is that this operation relieved him of any further pain in his back and legs.

However, not long after this plaintiff experienced severe pain in the abdominal area where the appendix is ordinarily located, and after hospital observation, examination, and blood tests which disclosed an elevated white cell count, plaintiff's appendix was removed.

Following this operation, as the result of a breakdown in technique and procedures, plaintiff's wound became abscessed on two different occasions, requiring him to be hospitalized, to incur associated expenses and to suffer pain, and to lose working time.

Because of his injuries Wilson sued Cook Manufacturing Company and Carl Vernon Merriman, and recovered a judgment for $47,500.00.

However, on motion for a new trial, the trial judge was of opinion the verdict was excessive by the amount of $32,500.00, and suggested a remittitur of that amount, reducing plaintiff's judgment to $15,000.00.

Plaintiff accepted the remittitur under protest, and appealed.

Here, only one error has been assigned, that the facts and circumstances of the case justify and sustain an award of $47,500.00, so that the verdict was not excessive by this amount or by any amount.

The assignment of error is based on T.C.A. § 27--118. This Code section, as construed in Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440, authorizes this Court to restore the entire verdict and judgment, or such portion thereof as we think should be reinstated.

All parties recognize that in passing on this assignment of error we apply the rule stated many times, that there is no mathematical rule or formula for computing the amount of damages allowable for personal injuries in a case based on negligence that the amount of the verdict was primarily for the jury to determine, and, next to the jury, the most competent person to pass upon the amount of the award is the judge who presided at the trial and heard the evidence. And, that the Court of Appeals will give great weight to the action of the trial court in ordering a remittitur, and will not disturb such an order unless the trial court has abused the discretion vested in him to make such an order. Templeton v. Quarles, 52 Tenn.App. 419, 374 S.W.2d 654.

Although the rule is unquestionably as we have just stated, because of the size of the remittitur we have reviewed the record with an attitude somewhat sympathetic toward the plaintiff-in-error, but in spite of this we have concluded the trial judge did not abuse his discretion in ordering a remittitur, and that we cannot restore it in whole or in part under the authority vested in us by T.C.A. § 27--118.

In addition to the facts we have already recited, it should be stated that in 1957 plaintiff had undergone surgery to repair a disc condition in the fourth and fifth lumbar space, and that the surgeon who performed this operation evaluated the residual disability left with plaintiff following this operation at between zero and ten percent to the body as a whole.

In this case, plaintiff's surgeon, a Dr. Donaldson, testified that the operation was a success and plaintiff had a good recovery, and he evaluated the degree of permanent partial residual disability referrable to the surgery he had performed as being fifteen percent, and expressed the opinion that Wilson suffered from twenty-five to thirty percent permanent partial disability based on the body as a whole as a result of Dr. Gish's operation in 1957 and his operation in 1964.

It should also be stated that although plaintiff was permitted to introduce evidence with respect to his abdominal operation and its cost in time and money, and the physical condition in which it left him, on defendant's motion the trial judge directed a verdict with respect to this aspect of the case, leaving only for consideration by the jury the damage sustained by plaintiff from his back injury. And, since no exception was preserved to this ruling, nor motion for new trial made with respect thereto, and no error assigned thereon, this question is finally settled in accordance with the trial judge's action for the purpose of this appeal.

Plaintiff's argument the remittitur should be restored is predicated on two primary grounds which we shall discuss.

He argues that his out-of-pocket losses at the date of trial amounted to $7,528.26, made up of $1,295.88 total medical expenses, and, $6,232.38 loss of wages, since at the date of trial plaintiff had not worked for forty-two weeks, and averaged when he did work $148.39 per week.

Assuming the medical expense of $1,295.88 to be correct, and it appears that it is, since this final figure is gotten by disallowing all medical expenses caused by his abdominal operation, it necessarily follows that plaintiff's loss of time attributable to this abdominal operation must likewise be deducted and only the balance of the time considered in determining this loss.

With respect to this the record reflects that Dr. Donaldson operated on October 26, 1964, and when plaintiff was discharged on November 5, 1964, although he was still feeling sore from the operation, he suffered no pain in his legs, for which he had gone to the hospital and had submitted to the operation in the first instance.

Since plaintiff was discharged from the hospital on November 5, 1964, following a successful operation which relieved him of the condition caused by the collision, it is reasonable to assume he would have been able to return to work in a month and a half or two months, which would have been by January, 1965.

On this basis he would have missed approximately fifteen weeks and would have been entitled to lost wages for this period of time amounting to approximately $2,230.00.

This figure, plus medical expenses of $1,295.88 would amount to a total of approximately $3,525.00 as special damages incurred as a result of the accident.

Plaintiff-in-error's second primary argument for restoration of the remittitur is that his right to the full amount of the jury verdict should be determined on the basis that he now suffers from a thirty percent permanent partial disability because of which he is unable to follow the only occupation in which he has any skill, that of welding, (the evidence being that plaintiff-in-error is an expert welder and was employed at the time of his injury as a welder repairing barges), so that he has sustained a definite loss in earning capacity.

Response of defendants-in-error to this contention is threefold. They say first, that loss of earnings is in the nature of special damage which must be pleaded, and this was not done; second, that if they are mistaken about this, it is the law that Wilson's loss of earning capacity must be ascertained solely by reference to the fifteen percent disability for which they are responsible; and, finally, they say there is no evidence of loss of earning power.

In Caruthers History of a Lawsuit, Gilreath, 8th Ed., we find this succinct statement with respect to pleading damages:

'In the law of pleading, the most important classification of damages is the division into general damages and special damages. General damages are such as Naturally and Necessarily result from the wrong or injury complained of, while special damages are such as naturally But not necessarily result from the wrong or injury complained of. Therefore, before evidence of special damages is admissible it is necessary that such damages should be alleged in the pleadings. It is for this reason that in the foregoing declaration No. 48 (this is a reference to a form of declaration set out for study and use by a student or lawyer) the doctors bills, hospital expenses, the physical pain, suffering, etc. are alleged.' Sec. 155.

In 22 Am.Jur.2d Damages, § 282, the question of the necessity of pleading specially decreased earning capacity is discussed as follows:

'Loss of time and decreased earning capacity. There is a difference of opinion as to the question of the necessity of alleging specifically the fact of lost time or loss or impairment of earning capacity in order to recover for such elements of damages. According to many courts, loss of time or...