Wilson v. Cook Manufacturing Co.

405 S.W.2d 584, 56 Tenn. App. 129, 1966 Tenn. App. LEXIS 217
CourtCourt of Appeals of Tennessee
DecidedApril 1, 1966
StatusPublished
Cited by6 cases

This text of 405 S.W.2d 584 (Wilson v. Cook Manufacturing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Cook Manufacturing Co., 405 S.W.2d 584, 56 Tenn. App. 129, 1966 Tenn. App. LEXIS 217 (Tenn. Ct. App. 1966).

Opinion

HUMPHREYS, J.

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

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

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

However, not long after this plaintiff experienced severe pain in tbe abdominal area where tbe 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 [132]*132be hospitalized, to incur associated expenses and to suffer pain, and to lose working time.

Because of bis injuries Wilson sued Cook Manufacturing Company and Carl Yernon 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 bas 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. sec. 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 [133]*133such, an order unless the trial conrt 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 plaintiif-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. sec. 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 [134]*134respect 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 he 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 [135]*135is reasonable to assume be would have been able to return to work in a month and a half or two months, which Avonld 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, pins 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.

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405 S.W.2d 584, 56 Tenn. App. 129, 1966 Tenn. App. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-cook-manufacturing-co-tennctapp-1966.