Koehn v. Hooper

193 Tenn. 417

Opinions

Mr. Justice Gailor

delivered the opinion of the Court.

This petition for certiorari presents two questions, namely: (1) Did the Trial Judge and the Court of Appeals err in refusing a remittitur on account of the excessive amount of the verdict? (2) Did the Court of Appeals err in refusing to consider the propriety of the action of the Trial Judge in refusing certain special requests?'

The two lower Courts have agreed on all points of law and fact. In the Circuit Court of Davidson County, Plaintiff recovered a verdict for $15,000 for the wrongful death of her eight-year-old daughter, who was killed' as she was leaving school in Nashville, as a proximate result of the negligence of Mrs. Koehn, who was driving her husband’s automobile at the time. According to the Plaintiff’s evidence, which was accepted by the jury, at a speed of 25 or 30 miles an hour, Mrs. Koehn drove her automobile through a crowd of two or three hundred people, many of whom Avere school children who had collected because of a previous automobile accident in Avhich one of the school children had been injured. The question here is simply, — Avas the value of $15,000 placed by the jury on the life of a normal, healthy eight-year-old girl, excessive?

On the motion for a neAv trial it Avas argued that the amount of $15,000 was excessive and resulted from prejudice, passion and caprice on the part of the jury. The same argument Avas made at length in the Court of Appeals, and cases were introduced both from Tennessee and in other jurisdictions where lesser verdicts had been aAvarded for Avrongful death of similar victims. We find no reported case from this Court, since the Court of Appeals was created, in Avhich, when the Trial Judge and the Court of Appeals have concurred in granting or refusing a remittitur, that this Court has interfered Avith their judgment. The reported cases all present cases where the lower Courts have differed, and Avhere it became necessary for this Court to decide the issue between the two lower Courts. The amount of the verdict being a question of fact which is normally determined by the jury, the concurrence of the two lower Courts forecloses the issue, and if the concurrent finding is supported by material evidence, it Avill not be disturbed. Wolfe v. Vaughn, 177 Tenn. 678, 152 S. W. (2d) 631; Reeves v. Catignani, 157 Tenn. 173, 7 S. W. (2d) 38.

The second question is presented by the insistence that the Court of Appeals erred in refusing to consider the propriety of the action of the Trial Judge in refusing certain special requests. The special requests are not incorporated in the bill of exceptions, nor does it appear in the bill of exceptions that the special requests Avere refused by the Trial Judge, The' special requests are incorporated in the motion for a new trial, but that is a mere pleading and does not take the place of a bill of exceptions. Sherman v. State, 125 Tenn. 19, 140 S. W. 209; Wynn v. State, 181 Tenn. 325, 331, 181 S. W. (2d) 332.

Writ denied.