Donoho v. Donoho, Jr. ( 1998 )

ROSALYNN C. DONOHO, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9802-CV-00070
v. )
) Wilson Circuit
WILLIAM J. DONOHO, JR., ) No. 8887
)
Defendant/Appellant. )
)
FILED
July 15, 1998
COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY
AT LEBANON, TENNESSEE
THE HONORABLE BOBBY CAPERS, JUDGE
HUGH GREEN
100 Public Square
Lebanon, Tennessee 37087
ATTORNEY FOR PLAINTIFF/APPELLEE
JAMES C. McBROOM
C. EDWARD SCUDDER, JR.
211 Printers Alley Building, Suite 502
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
In this case defendant appeals an adverse jury verdict in a personal
injury action.
Appellant and appellee were married in the mid-seventies and divorced
in 1983. They reconciled after their divorce and had been living together for
approximately five years at the time of the incident of February 20, 1993 which
precipitated the law suit at bar. On that day, William J. Donoho, Jr. physically
assaulted Rosalynn C. Donoho. After a one day trial, a jury assessed $85,000
compensatory damages and $15,000 punitive damages against Mr. Donoho. His
motion for a new trial or, in the alternative, for a remittitur was overruled by the
trial court and he appealed.
The issues presented for review as stated by the appellant are:
1. Whether the trial court erred in denying
Defendant's Motion for New Trial, or in the alternative, a
Remittitur, and in approving the jury verdict for
compensatory damages in the amount of Eighty-five
Thousand ($ 85,000.00) Dollars when the Plaintiff offered
proof of only Eight Hundred, Nineteen ($ 819.00) Dollars in
medical damages?
2. Whether the trial court committed reversible
error in failing to exclude improper evidence of the
Defendant's character?
3. Whether the trial court committed reversible
error in admitting evidence of the Plaintiff's reputation
without proper foundation?
Appellant does not take issue with the $15,000 punitive damage award
but asserts only that the $85,000 compensatory damage award should be
reversed.
Appellant does not assert that the verdict of the jury is a product of
passion, prejudice or caprice. The issue asserted is that the compensatory
damage award is above the range of reasonableness and, as such, is not supported
by the evidence.
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In the case at bar, the trial court has approved the verdict of the jury.
In Ellis v. White Freightliner Corp., the Supreme Court said:
[6] The trial judge's approval of a jury verdict invokes
the material evidence rule with respect to all other issues of
fact and we know of no reason why that rule should not have
the same effect when that approval includes the amount of
the award. That action by the trial judge means that he has
accredited the testimony of the witnesses on the issue of
damages and has evaluated the evidence as supporting the
amount awarded. Nevertheless, when the question of
remittitur is raised, the Court of Appeals has the duty to
review the proof of damages and the authority to reduce an
excessive award. But when the trial judge has approved the
verdict, the review in the Court of Appeals is subject to the
rule that if there is any material evidence to support the
award, it should not be disturbed.
We affirm these guidelines and caveats in Southern R. R.
Co. v. Sloan, supra :
"There is no exact yardstick, or measurement,
which this court may use as a guide to determine the
size of verdicts which would should be permitted to
stand in cases of this kind. Each case must depend
upon its own facts and the test to be applied by us is
not what amount the members of the court would
have awarded had they been on the jury, or what they,
as an appellate court, think should have been
awarded, but whether the verdict is patently
excessive. The amount of damages awarded in
similar cases is persuasive but not conclusive, and, in
evaluating the award in other cases, we should note
the date of the award, and take into consideration
inflation and the reduced value of the individual
dollar." 56 Tenn. App. at 392-393, 407 S.W.2d at
211.
We also reiterate that a finding of excessiveness
necessarily involves a determination of the dollar figure that
represents the point at which excessiveness begins, and that
figure is the upper limit of the range of reasonableness. In
this case, as distinguished from Smith v. Shelton, supra, all
of the evidence in the record that tends to support the amount
of the verdict should be given full faith and credit upon
appellate review.
Ellis v. White Freightliner Corp., 603 S.W.2d 125, 129 (Tenn.1980). Hence, the
only question for this court to consider is whether there is material evidence to
support the award below.
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The evidence below showed Mrs. Donoho was physically assaulted by
Mr. Donoho. The results of his assault upon her are graphically illustrated by the
record. The photographic evidence revealed extensive facial and bodily injury.
Both Mrs. Donoho and lay witnesses testified that she suffers great embar-
rassment, humiliation and severe emotional distress as a result of the assault.
While it is true that the only medical bills in evidence were $819.00 paid to
Donleson Hospital; Mrs. Donoho further testified without objection from the
defendant that she had required medical and psychological treatment in Arizona
and that she had been diagnosed as suffering from post-traumatic stress
syndrome. She was compelled to take anti-depressant medications. The
evidence indicates that Mrs. Donoho was a professional, career-oriented woman
and very successful in her business. After the February 20, 1993 incident she
was forced to live in a motel for five weeks, too depressed, embarrassed and
humiliated to go to work during this period or to eat out because of her injuries.
The evidence concerning the damages suffered by Mrs. Donoho is more
than sufficient to support the verdict. The $85,000 award is not beyond the range
of reasonableness. It is true that the evidence concerning Mrs. Donoho's
treatment in Arizona was not supported by medical testimony. Her own
testimony, admitted in evidence without objection by the defendant, is adequate
to support the jury's verdict.
Appellant further objected to testimony asserting that the defendant
neglected his children by a previous marriage until they were in their mid-teens
and allowed his minor son, Jay, to drink alcohol and use drugs in their home.
This evidence came in during the testimony of Mrs. Donoho and further during
the testimony of Mr. Donoho and his son Jay. It generally established some of
the factors leading up to the explosive incident of February 20, 1993.
Appellant further asserts that the trial court erred in admitting an
advertising brochure depicting the plaintiff, along with other professionals in her
field of endeavor. This document is cumulative to the testimony of other
witnesses who testified to the effect that Mrs. Donoho was a hard worker and
professionally accomplished. For the purposes offered, the evidence was
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admissible. Even if the admissibility were questionable, it cannot be said that
such evidence, more probably than not, affected the judgment. See Tenn. R.
App. P. 36(b). In this respect therefore, the jury verdict stands.
The judgment of the trial court is in all respects affirmed. The case is
remanded to the trial court for further proceedings. The costs of this appeal are
assessed against appellant, William J. Donoho, Jr.
________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
__________________________________
WILLIAM C. KOCH, JR., JUDGE
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