Woodruff v. Tomlin, 77-1216

• Decision Date: 24 May 1979
• Docket Number: No. 77-1216,77-1216
• Citation: 593 F.2d 33
• Parties: Joan WOODRUFF, Patricia Woodruff Hamilton and Louis Hamilton, her husband, Plaintiffs-Appellants, v. Hewitt P. TOMLIN, Jr., Homer H. Waldrop, Roy Hall, and David R. Farmer, Individually and as partners doing business under the name and style of Waldrop, Hall, Tomlin & Farmer, a Professional Business Association, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 33

593 F.2d 33

Joan WOODRUFF, Patricia Woodruff Hamilton and Louis

Hamilton, her husband, Plaintiffs-Appellants, v. Hewitt P. TOMLIN, Jr., Homer H. Waldrop, Roy Hall, and David

R. Farmer, Individually and as partners doing business under

the name and style of Waldrop, Hall, Tomlin & Farmer, a

Professional Business Association, Defendants-Appellees.

No. 77-1216.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 30, 1978.

Decided Feb. 22, 1979.

Rehearing En Banc Granted May 24, 1979.

Norman Herring, Phoenix, Ariz., James F. Schaeffer, Memphis, Tenn., by Norman Herring, counsel for plaintiffs-appellants.

Leo Bearman, John J. Thomason, Memphis, Tenn., for defendants-appellees.

Before EDWARDS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.

WEICK, Circuit Judge.

Plaintiffs-appellants' suit in the District Court was against an attorney at law and his law firm, to recover damages, alleging legal malpractice consisting of conflicts of interest and negligence in their representation of plaintiffs in personal injury actions arising out of a truck-auto collision, which actions the attorneys filed in plaintiffs' behalf in the state court, and which resulted in judgments against the plaintiffs. Jurisdiction in the malpractice action was based on diversity of citizenship.

The District Court granted defendants' motion to dismiss the complaint on the ground that plaintiffs' action was barred by Tennessee's one-year statute of limitations. T.C.A. 28-304. On appeal, we reversed and remanded for trial. Woodruff v. Tomlin, 511 F.2d 1019 (6th Cir. 1975).

On remand the case was tried before a jury on the issue of liability. The jury was unable to agree on a verdict and the court declared a mistrial. The defendants then filed a motion for judgment n. o. v. and for dismissal of the complaint, which motion was granted by the court in a Memorandum Decision reported in Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D.Tenn.1976).

Plaintiffs have appealed therefrom to this Court. We are of the opinion that there were factual issues which should be determined by a jury, and not by the court, and that the court erred in summarily dismissing the conflicts of interest claim, in the exclusion of evidence, and in the granting of the motion n. o. v. We reverse.

The plaintiffs, Joan Woodruff and her sister Patricia, then 15 and 16 years of age respectively, were severely injured on May 22, 1968, when an automobile driven by Patricia and owned by her father, in which automobile Joan was riding as a passenger, was struck by a large truck loaded with gravel weighing about 73,000 pounds, on Highway 100 in Chester County, Tennessee. Joan was thrown out of the car and the The girls' hospital bills alone exceeded $20,000.

truck ran over her legs, crushing the bones and tearing the skin off her legs, crippling her for life. Patricia sustained a skull and brain injury resulting in traumatic amnesia, so that she had no memory of the accident.

The girls' father, Charles Woodruff, carried liability insurance on his car with Tennessee Farmers Mutual Insurance Company, with limits of $10,000 for one person, and $20,000 for more than one person. While the girls were in the hospital Theo. Leathers, the Claims Adjuster for the insurer, contacted Mr. Woodruff and gave him a check for medical reimbursement. Leathers advised Mr. Woodruff that he should retain a lawyer. Leathers told Mr. Woodruff that the statements of witnesses to the collision were inconsistent and were changing.

Leathers recommended to Woodruff that he retain Hewitt P. Tomlin, stating that Tomlin was a good lawyer. Tomlin was also the attorney for Tennessee Farmers Mutual Insurance Company. Woodruff then engaged Tomlin to represent his two daughters, and also to represent himself in his claim for damages to his car.

Tomlin filed two suits for personal injuries sustained by the girls and one for damages to the car, against Pomeroy, the driver of the large truck, Teague, the owner of the truck, and Nobles, the owner of the second truck. The suits were filed in the Circuit Court of Chester County, Tennessee.

Pomeroy, the truck driver, and Teague, the owner of the truck, filed suits in said Circuit Court against Patricia Woodruff and her sister Joan, to recover damages for personal injury sustained by Pomeroy, and for damages to the truck. They alleged negligence on the part of Patricia, and that Joan, the passenger, aided and abetted. Tomlin, as attorney for Tennessee Farmers Mutual Insurance Company, defended the suits against the two girls. The suits were all consolidated for trial.

The cases in the state court were tried before a jury, which disagreed 9-3, and a mistrial was declared. At the second trial in the state court the jury returned a verdict in favor of the defendants in the personal injury actions of Patricia and Joan against Pomeroy, Teague and Nobles. In the suit of Pomeroy and Teague against Patricia and Joan the jury returned verdicts in favor of Pomeroy for $600, and Teague in the amount of $3,000.

Upon appeal to the state court of appeals the judgments for the defendants in the personal injury cases of Patricia and Joan against Pomeroy, Teague and Nobles, were affirmed. The judgments in favor of Pomeroy and Teague against Patricia, totaling $3,600, were affirmed, but were reversed as to Joan, the Court holding that there was no evidence to prove that Joan, the passenger, aided and abetted in the negligence of Patricia. Therefore Joan was not contributorily negligent, and Patricia's negligence could not be imputed to her.

The appeals court then referred to damaging concessions made by Tomlin's law firm in their appellate brief, as follows:

In short, the fact is that there is material evidence in this record from which the jury could have concluded that Patricia Woodruff was guilty of negligence. This fact is conceded in appellants' brief and it is therein admitted that neither of the plaintiffs in the original cases of Patricia Woodruff vs. Nobles, Pomeroy and Teague, and in Charles Woodruff vs. the same defendants can now prevail. (App. 162-63)

As we will point out later, this damaging admission wrecked Joan's case for personal injuries against Pomeroy, Teague and Nobles. There was plenty of evidence of negligence on the part of the two truck drivers for submission of the issue to the jury. The issue of contributory negligence of Joan was eliminated from the case by the court of appeals. By reason of this wrongful admission, there was no issue for Joan to take her case to the Supreme Court of Tennessee. In effect what was done was to impute the negligence of Patricia to Joan, and the doctrine of imputed negligence does not prevail in Tennessee, as the state court The wrongful admission also ruined Patricia's case for negligence against Pomeroy, Teague and Nobles. As we will later point out, the state trial judge gave an erroneous instruction to the jury on last clear chance. Tomlin did not point out this error to the trial judge, and did not claim it as error in his motion for a new trial, and his law firm did not assign it as error in the state court of appeals. If they had done so, instead of making admissions against the interest of their clients, the appellate court, in all probability, would have reversed and remanded for a new trial. Their clients were deprived of their right to a new trial and their right to proceed against Pomeroy, Teague, or Nobles, or their insurers.

of appeals held. See also Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, 187 S.W.2d 777 (1945).

The malpractice complaint charges Tomlin with representing conflicting interests and with negligence in the investigation, preparation and trial in the circuit court and in the appeal in the state appellate court.

The most grievous of the allegations of negligence against Tomlin was his failure to object to an erroneous instruction on last clear chance, in the second trial, and to raise that issue on motion for a new trial, and on appeal. Also, complaint was made concerning his failure to call witnesses who had stepped off various skid marks; his failure to engage an accident reconstruction expert to testify as to critical issues at the trial; and his failure to support the charge of negligence against defendant Nobles in violating T.C.A. § 59-854(a) by driving slowly downhill, and in violating T.C.A. § 59-859 by stopping.

It is also contended that the District Judge erred in applying a standard governing liability of attorneys which would virtually exempt attorneys from any liability to their clients for malpractice.

At the time of the accident Patricia and her sister Joan were returning home from a trip to Chicasaw State Park. Patricia was driving her father's Chrysler automobile, with his permission. She had a driver's license. Patricia was driving in broad daylight, in a westerly direction on Highway 100, which is a two-lane, paved highway in Chester County. She was followed closely by another automobile occupied by a friend, Gail Sterling. Patricia, Joan and Gail Sterling all testified that Patricia was driving at about 55 miles per hour. The speed limit on the highway was 65 miles per hour.

When Patricia passed over the crest of a steep hill, to proceed downhill, a short distance from Chicasaw State Park, she was suddenly confronted with a very serious traffic problem. A small truck owned and operated by defendant Nobles was moving slowly down the steep hill, in the same direction as Patricia was traveling; he came to a complete stop about 300 feet ahead of Patricia and at a point opposite a dirt side road to the south. Approaching her from the opposite direction and at some distance was the large truck loaded with gravel, which truck was about 35 feet long, weighing 73,000 pounds. That truck was owned by G. L. Teague, and was being operated by his servant, James Pomeroy. Thus the two trucks impeded travel in both lanes of the two-lane highway.

Patricia...