Woodruff v. Tomlin, Civ. No. C-74-6.

• Decision Date: 10 December 1976
• Docket Number: Civ. No. C-74-6.
• Citation: 423 F. Supp. 1284
• Parties: Joan WOODRUFF et al., Plaintiffs, v. Hewitt P. TOMLIN, Jr., et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

423 F. Supp. 1284

Joan WOODRUFF et al., Plaintiffs, v. Hewitt P. TOMLIN, Jr., et al., Defendants.

Civ. No. C-74-6.

United States District Court, W. D. Tennessee, E. D.

December 10, 1976.

Norman Herring, Phoenix, Ariz., James F. Schaeffer, D. Franklin Moore, Jr., Memphis, Tenn., for plaintiffs.

Leo Bearman, Jr., John J. Thomason, Memphis, Tenn., Victor F. Schneider, Jackson, Tenn., for defendants.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

This is a legal malpractice case in which damages are sought from the defendant lawyers for losing personal injury cases in a jury trial. Plaintiffs contend that the lawyers were guilty of negligence and other wrongdoing in the investigation, trial and appeal of the cases and that this proximately caused the loss. This court has jurisdiction on the basis of diversity of citizenship. This malpractice case was submitted to a jury, which was unable to agree on a verdict and a mistrial was declared. Thereafter, defendants moved for a judgment n.o.v. and for a dismissal of the case; briefs have been filed and argument has been had. This court concludes, for reasons herein set out, that the motion must be granted and the action dismissed.

The automobile accident out of which this litigation arose occurred in Chester County, Tennessee in 1968. At the trial in question, there was ample evidence to support the following account of the accident. Plaintiff Patricia Woodruff, who was sixteen and had just obtained a driver's license, and her sister, plaintiff Joan Woodruff, who was fifteen, with their father's permission, had taken the family Chrysler to Chickasaw State Park on Highway 100. There they saw a friend, a young girl named Sterling, who also was driving a car. Both cars left the park at about the same time with the Woodruff girls behind the Sterling girl. Although Highway 100 is two-laned and is up and down hills, the Woodruff girls managed to pass the Sterling girl before the point of the accident, which was one and one-half miles from the park. Just prior to the accident, when the Woodruff girls topped a hill, they saw a vehicle in front of them being driven by one Nobles headed in the same direction in their lane. Nobles was either stopped or moving very slowly and had his left turn signal on preparatory to turning into a side road on the left. Patricia Woodruff applied her brakes, put down a total of 252 feet of skid marks, which were initially on her right side and then on the left side of the highway. The car skidded sideways for a considerable part of this distance and came to rest with the front end off the left side and the rear on the highway. It did not strike the Nobles vehicle. One Pomeroy, an employee of one Teague, who was driving a loaded gravel truck in the opposite direction, struck the rear of the Woodruff vehicle. Sterling had to swerve to her right onto the shoulder of the highway to keep from being hit by the gravel truck, which had swerved to its left in an effort to avoid hitting the Woodruff car. The result was that both of the Woodruff girls received serious and permanent injuries, Joan receiving even more serious injuries than did Patricia.

The Woodruffs had their liability insurance coverage with the Tennessee Farmers Mutual Insurance Company, whose investigator was asked by Charles Woodruff, the father, who would represent them in behalf of the insurance company. When he learned that the defendant Tomlin, a lawyer in Jackson, would do so, Woodruff called on Tomlin and employed him and his law firm to represent himself and his daughters in prosecuting any claims they might have. Tomlin learned that, according to the Woodruffs, Patricia Woodruff had been driving at a reasonable speed, that the Woodruff vehicle had been at rest for several seconds (five to eight) before it was struck by the oncoming gravel truck, and that, in any event, the Woodruffs, including Joan, did not want any blame to be placed on Patricia, the driver. Tomlin promptly went to the scene, took pictures, reviewed the investigation file of Tennessee Farmers, and filed suit for the Woodruff girls and their father against Nobles, Teague and Pomeroy. Pomeroy sued the Woodruffs for his personal injuries and Teague for the damage to the gravel truck.

The first trial in the Circuit Court of Chester County resulted in a hung jury, nine to three against the Woodruffs. At the second trial the jury found against the Woodruffs and in favor of Teague and Pomeroy. The verdict was approved by an experienced and able trial judge (who sat as a "thirteenth juror") and, upon appeal by defendants in behalf of the Woodruffs, the judgment below was affirmed by the Tennessee Court of Appeals.¹ Both trials were conducted by defendant Tomlin for the Woodruffs. One of his partners wrote the brief on appeal.

Thereafter, the instant action was filed by Patricia and Joan Woodruff (their father did not sue) against their lawyer, Tomlin, and his partners. This court dismissed the action as being barred by the statute of limitations, which dismissal was reversed on appeal (511 F.2d 1019 (6th Cir. 1975)) on the basis of a Tennessee decision that became available after the ruling here but before the ruling in the Court of Appeals. This malpractice case was then set for trial in July, 1976.

Plaintiffs contended in their complaint and amended complaint that Tomlin and his partners were guilty of negligence in the investigation, trial and appeal of their cases and that such negligence proximately caused the loss of their claims. Pursuant to pre-trial order, plaintiffs specified that the defendants had been guilty of negligence in failing to personally interview a potential witness (who had been interviewed by the Tennessee Farmers investigator), in failing to present as a witness an accident reconstruction expert, in failing to prepare and introduce proper maps and plats, in failing to present adequate evidence that would support a reliance on last clear chance or discovered peril, in failing to object to examination of an expert offered by defendants or to properly cross-examine him, in failing to rely on certain statutes that were claimed to be applicable, in failing to object to a jury instruction, in failing to use available witnesses in rebuttal, and in failing, on appeal, to raise and argue all necessary assignments of error. Plaintiffs contended, as stated, that each and all of said acts or omissions proximately caused the loss of their claims.

In addition to the foregoing negligence alleged, plaintiffs contended that defendant Tomlin, since he represented Tennessee Farmers, had a conflict of interest in representing Joan Woodruff because she had a potential claim against her sister Patricia. In this connection, it has been the position of defendant Tomlin that there was never a conflict since Joan had stated from the first that Patricia was without fault and in detail supported the theory of the accident as related to him from the beginning by the father. Further, defendants contend that the coverage would have been only $10,000 and that in any event there would have been no coverage under the policy for Patricia with respect to a claim by her passenger-sister; there is no proof tendered or in the record on these coverage questions one way or the other. In any case, it appeared to this court that this claim based on alleged conflict of interest on the part of defendant Tomlin should not be tried with the claims of negligence in losing the lawsuits and therefore it was, by pre-trial order, not dealt with at the trial.

The court had the impression that the only conflict of interest contention made by plaintiffs had to do, as above set out, with defendants' representation of the Woodruff's liability insurance company. However, just prior to the trial, plaintiffs sought to make the further contention that defendant Tomlin should not have represented both Joan and Patricia, since, if they had had separate counsel, there would have been advantages in offering witnesses and in the right to cross-examine them, and, further, Patricia's claimed negligence in operating the Woodruff car would not have rubbed off on Joan in the jury's mind.² The court concluded, at a pre-trial conference, that this contention, also, should not be tried with the contentions of negligence against defendants in their...