England & Whitley v. Select Sires ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
OLAN ENGLAND and )
ROBERT WHITLEY, )
)
Plaintiffs/Appellees, ) Giles Circuit No. 2142
)
VS. ) Appeal No. 01A01-9705-CV-00204
)
SELECT SIRES, INC., P. D. LIGGETT, )
and TENNESSEE ARTIFICIAL )
BREEDING ASSOCIATION, )
Defendants/Appellants.
)
) FILED
June 12, 1998
APPEAL FROM THE CIRCUIT COURT OF GILES COUNTY
AT PULASKI, TENNESSEE Cecil W. Crowson
THE HONORABLE WILLIAM B. CAIN, JUDGE
Appellate Court Clerk
BILLY C. JACK
Columbia, Tennessee
DOUGLAS E. JONES
Nashville, Tennessee
Attorneys for Appellant Tennessee
Artificial Breeding Association
R. STEPHEN DOUGHTY
WEED, HUBBARD, BERRY & DOUGHTY
Nashville, Tennessee
WALTER W. BUSSART
BUSSART & MEDLEY
Lewisburg, Tennessee
Attorney for Appellees
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
HOLLY KIRBY LILLARD, J.
One of the defendants, Tennessee Artificial Breeding Association (“TABA”), has
appealed from a jury verdict in favor of plaintiffs, Olan England (“England”), in the amount
of $77,840.54, and Robert Whitley (“Whitley”) in the amount of $183,362, which the trial
court reduced to $120,000 via a remittitur. TABA further appeals the jury verdict finding
an ostensible agency relationship between TABA and artificial insemination technician P.D.
Liggett (“Liggett”).1
Although the parties raise seven separate issues, 2 we find the essential issues to
be the following:
I. Whether England’s evidence as to damages was
speculative; whether such evidence of lost profits constituted
a sufficient basis for the jury’s computation of damages.
II. Whether Whitley’s evidence as to damages was of such a
speculative nature that a jury had no basis for its verdict.
III. Whether the trial court erred in dismissing the cause of
action by plaintiffs against TABA under the Tennessee
Consumer Protection Act.
IV. Whether the trial court erred in ordering a new trial as to
Whitley unless he accepted a remittitur.
Select Sires, Inc. is a national federated cooperative engaged in the
collection and distribution of semen from bulls whose offspring have a record of high milk
production.
1
Ligge tt was volun tarily dis mis sed from this a ction just p rior to the c om me nce me nt of tr ial.
2
Tenn essee Rule of A ppellate P rocedu re 36(a) states:
Nothing in this rule shall be construed as requiring relief be granted to a
party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.
Furthermore, Rule 3(e) provides:
[I]n all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, misconduct of jurors, parties or counsel, or
other action co m mitted or occurring during the trial of the case, or other
ground upon which a new trial is s oug ht, un less the s am e wa s sp ecific ally
stated in a motion for a new trial; otherwise such issues will be treated as
waived.
In its mo tion fo r a ne w trial, d efen dan t did no t raise the is sue of os tens ible agency, nor did it raise the
issue of W hitley’s failure to produce certain documents referred to at trial. These failures constitute waivers
of the issue s on ap peal. See Mason v. Tennessee Farmers Mut. Ins. Co., 640 S.W.2d 561 (Tenn. Ct. App.
1982).
2
TABA is an association of dairymen who utilize artificial breeding in the
management of their dairy herds. TABA purchases semen from Select Sires, Inc., and has
the name "Select Sires, Inc.," printed on a breeding receipt which it furnishes to technicians
who purchase semen from TABA.
Giles County Artificial Breeding Association (“GABA”) is a former purchaser of
semen and employer of Liggett, but it ceased operation in 1984 prior to the inception of this
controversy.
England and Whitley are dairymen whose cattle have been artificially impregnated
by Liggett for a certain period of time. They are members of Tennessee Artificial Breeding
Association.
Liggett was formerly a salaried employee of GABA. Beginning in 1979, he
continued his work of insemination "on his own," purchasing semen from defendant and
others, selling it to cattle owners, and administering it to their cattle.
Select Sires, Inc., sold semen to defendant in individual injections called "straws."
Each "straw" bore the name of the bull from which the semen was obtained.
TABA’s principal customers were "technicians" who were trained to artificially
impregnate cattle and who, in turn, sold the semen at a profit to the owners of cows which
were impregnated by the technician.
TABA furnished to technicians various promotional paraphernalia bearing its imprint.
It also furnished to technicians, including Liggett, a supply of printed forms entitled
"breeding receipt."
The breeding receipts were printed for TABA at its expense and furnished in blank
to the technicians to be filled in by them and delivered to their customers. Certain details
3
of the receipt are material to this appeal. At the top of the receipt in large print are the
words, "Select Sires, Inc." Select Sires, Inc. did not authorize the inclusion of its name in
the receipt which was composed and printed at the direction and expense of TABA. TABA
used "Select Sires" as a trade name in its semen distribution business.
The receipt has a blank space for the name and number of the cow, the name and
number of the bull, and the fee paid by the owner. In the lower part of the receipt is the
following:
I hereby certify that I am duly authorized by the above named
business to issue this receipt in its name which is given as
evidence of service rendered and also a certificate of date of
service and identity of semen used for service of animal
identified herein.
_______________________ ____________
(Inseminator signature) Tech. No.
Tennessee Artificial Breeding Association
This form of receipt was uniformly filled in and delivered to both England and
Whitley each time Liggett inseminated one of their cows.
Liggett purchased semen from defendant in certain quantities and maintained a
reservoir of it for use as required by his customers. As reports were published on the
"standing" or desirability of semen for various bulls, the demands of customers changed,
and Liggett was left with a surplus of semen that was no longer desired by his customers.
In order to avoid the loss of his investment in the semen which was no longer desired, he
began to substitute the unwanted semen for the semen ordered by his customers.
In 1987, it came to light that Liggett was defrauding dairy farmers by accepting
payment for higher priced semen while inseminating their cattle with a lower priced semen.
Both England and Whitley fell victim to this fraud perpetrated by Liggett.
On November 13, 1987, TABA filed a suit against Liggett seeking to enjoin him from
representing that he had a business relationship with defendant, from using breeding
4
receipts of defendant, and from destroying his records of inseminations. TABA further
sued Liggett to recover damages that resulted from his fraudulent conduct. The affidavit
of the general manager of TABA filed in that case states in part:
On Wednesday, November 11, 1987, the Executive Committee
met at our central office and the resulting action by the Board
was to terminate our relationship with Mr. Liggett, effective
immediately.
Mr. Liggett still has receipt books and promotional material
bearing the Association's name. It is my concern that he not
continue to use these materials from this day forward in that he
is no longer a representative of the Association. . .
TABA alleged, among other things, that Liggett’s activities constituted violations of the
Tennessee Consumer Protection Act, and that as a result of Liggett’s actions, TABA had
suffered damage to its reputation in Tennessee.
Around that same time, a letter was sent to all members of TABA on the letterhead
of TABA's counsel, signed by the general manager of TABA and stating:
Please be advised that as of November 11, 1987, Mr. P.D.
Liggett's business relationship with Tennessee Artificial
Breeding Association and Tennessee Select Sires, Inc. was
terminated. . .
Thereafter, on March 12, 1988, England and Whitley filed a complaint against
Liggett, TABA, and Select Sires. The complaint alleged, inter alia, that Liggett was acting
as an agent of TABA when he fraudulently sold less expensive and inferior bull semen to
England and Whitley. The second cause of action set forth in the complaint was premised
on the Tennessee Consumer Protection Act. Specifically, England and Whitley alleged
that defendants had engaged in unfair or deceptive trade acts or practices affecting the
conduct of trade or commerce in violation of the Act. TABA filed an answer denying that
Liggett was acting as its agent and denying that it had violated the Tennessee Consumer
Protection Act.
Select Sires was dismissed prior to trial on order of the court, and Liggett was
voluntarily dismissed as a defendant by the plaintiffs just prior to the commencement of
5
trial.
At the conclusion of the proof in this matter, TABA moved for a directed verdict and
specifically moved for a directed verdict on the cause of action under the Tennessee
Consumer Protection Act. The court granted a directed verdict with regard to the
Tennessee Consumer Protection Act claim.
The case was presented to the jury which returned a verdict for both plaintiffs
against TABA, awarding England $77,840.54 with prejudgment interest at a rate of 8%
since November 11, 1987, and awarding Whitley $183,362.00 with no prejudgment
interest.
After entry of the judgment by the court, TABA filed a Motion for a New Trial,
Directed Verdict and/or Motion for Judgment Notwithstanding the Verdict. This motion did
not raise the issue of liability but questioned only the jury’s award of damages to plaintiffs
and the admissibility of certain expert testimony regarding damages. England and Whitley
filed Plaintiffs’ Motion for the Court to Reconsider its Ruling on the Consumer Protection
Act. The court entered an order on January 31, 1997, denying TABA’s motion as to
England in all respects and denying the motion by plaintiffs to reconsider the Tennessee
Consumer Protection Act ruling. In that order, the court did grant a new trial as to Whitley
unless he accepted a remittitur of all the verdict in excess of $120,000. Whitley accepted
the remittitur under protest. TABA appealed to this Court.
As mentioned supra, TABA did not raise the issue of liability in its motion for a new
trial as mandated by Tenn. R. App. P. 3(e). However, we feel compelled to digress for a
moment to discuss liability.
The following issue was submitted to the jury with the response indicated:
Is Tennessee Artificial Breeding Association liable to plaintiff,
Olan England? Yes
Is Tennessee Artificial Breeding Association liable to plaintiff,
Robert Whitley? Yes
6
This general finding of liability must be sustained if the record contains material
evidence of any relationship or actions alleged in the complaint which would impose liability
upon the defendant for the wrongs alleged in the complaint. Tenn. R. App. P. 13(d).
There is no evidence that TABA ever expressly employed or authorized Liggett to
act as its agent in respect to the sale or administration of artificial insemination. There is
evidence that Liggett was expected to solicit memberships in the association, but the
wrongs alleged by plaintiff were not committed in soliciting memberships. The testimony
of defendant's general manager contains the following:
A. Mr. Liggett was out there with bull books and receipts, and
we certainly knew that he had them.
Q. And showing that he was authorized to act on your behalf,
right? Say it, Mr. Riley.
A. It's written on the receipt.
The affidavit of the same general manager, quoted above, stated:
[H]e is no longer a representative of the association.
By natural and rational implication, the language in the affidavit illustrates that
Liggett was once a representative of TABA.
A principal is bound by the acts of his agent within his apparent or ostensible
authority. McCoy v. Willis, 177 Tenn. 36, 145 S.W.2d 1020 (1940).
The admitted act of furnishing Liggett with the forms of receipt quoted above, is
sufficient material evidence that Liggett was authorized by defendant to certify on behalf
of defendant the authenticity of the semen utilized in the artificial insemination. The falsity
of this certification is the foundation of the present suit.
The admissions of the defendant, quoted above, are confirmation of this authority
and resultant liability of defendant.
7
Even if an agent's tortious act be outside his express authority, the principal may be
estopped to assert lack of actual authority. Adams v. Duncan Transfer and Storage, 757
S.W.2d 336 (Tenn. Ct. App. 1988).
Apparent or ostensible authority results when a principal knowingly or negligently
permits an agent to exercise certain authority in his behalf or knowingly or negligently holds
the agent out as possessing certain authority to act for the principal, notwithstanding such
authority was never actually granted. Oppenheimer v. Wooline, 4 Tenn.Civ.App. 134
(1834). See also Southern Railway Co. v. Pickle, 138 Tenn. 238, 197 S.W. 675 (1917)
and Am.Jur.2d Agency, §§ 19 and 80 (1986).
There is material evidence to support the finding of the jury that TABA was liable to
both England and Whitley for the fraudulent conduct of Liggett.
EVIDENCE OF ENGLAND’S DAMAGES
TABA asserts that the evidence of the damages of England are too speculative to
support the jury’s verdict. We agree.
Dr. Dunham’s testimony concerning England’s damages was based upon
incomplete information. He testified that he based his damage calculations upon the
amount of potential milk production loss that would have existed for each individual that
was sired. However, it was not until the morning of trial that Dr. Dunham was made aware
that England had been using the services of another breeding technician to sire his cows.
This technician was Roger Toombs.
In calculating England’s damages, Dr. Dunham reviewed England’s Dairy Herd
Improvement Association (“DHIA”) records “quite extensively.” However, these DHIA
records reveal an inability to identify the sires used to inseminate England’s heifers. The
DHIA records contained a section entitled “Percent Cows With Sire ID.” These
percentages represent the proportion of animals in the herd for which the sire is recorded
8
in the DHIA system. In 1981, 59% of England’s first calf heifers could be identified with
their respective sires. In 1984, this number dwindled to 8%, and thereafter to 5% by 1985.
As mentioned above, Dr. Dunham relied heavily upon England’s sire identification to
calculate loss of milk production. This sire identification information, however, was scant
at best and hardly sufficient to establish reasonable damages.
Along these lines, TABA’s expert, Dr. Bennett Cassell, testified that it would be very
difficult to calculate milk production loss without knowing the identity of the specific cattle
bred with the inferior semen.
Q. All right, sir, in evaluating and calculating damages in a
dairy genetics case, is it correct that you have to study the
individual cows as opposed to the herd?
A. I don’t see a way to measure the damages other than on an
individual cow basis. Yes, you would have to study individual
cows.
Q. So sir, if you are unable to identify the specific cattle, is it
possible to do these calculations on milk production losses?
A. On an individual cow it would be difficult unless you could
refer back to some piece of evidence that convinced you that
that cow resulted from a service performed by a known
individual.
Q. You have to know the sire identity to be able to track it?
A. You would need to know the sire identity.
At trial, counsel for TABA had entered into evidence a chart illustrating that England
paid approximately $9,954 in breeding fees to the Giles Artificial Breeding Association
(“GABA”) (the name placed on the checks for services provided by Liggett) and $8,038 to
Roger Toombs thereby evincing that 55% of breeding fees were paid to GABA and 45%
to Toombs. When asked if he could testify what percentage of England’s cows were bred
with the inferior semen, Dr. Dunham stated:
Not at this point. All I can do is just guess from the amount
that was spent on breeding fees. And I said that breeding fees
may have been different from one person to the next. I can’t
today.
Later in Dr. Dunham’s testimony, counsel for England attempted to have Dr. Dunham
adjust his previous calculations by applying the 55% breeding fee figure.
9
Q. If what Mr. Jones just asked you, if you applied the 55
percent figure --
A. Yes, sir.
Q. From 16 (exhibit), would you simply multiply by 55?
MR. JONES: Object, Your Honor, please, that is speculation.
MR DOUGHTY: I’m asking how he would do the calculation
assuming this number is correct, Your Honor.
THE COURT: Assuming the check numbers to be correct?
MR. DOUGHTY: Yes, Your Honor, he already questioned
about those check numbers and the dollar amount. I’m asking
him the percentage --
MR. JONES: Your Honor, please, there is no proof in the
records about Toombs fees.
THE COURT: That is the problem. We don’t know who is
charging what fees or for that matter what semen. Sustain the
objection.
Where damages are by their nature not susceptible to exact proof, it is only
necessary for the plaintiff to lay a foundation to enable the jury to make a fair and
reasonable assessment of the damages. Pinson Ins. Agency v. Kneal, 800 S.W.2d 486
(Tenn. Ct. App. 1990); Wilson v. Farmer's Chemical Assn., 444 S.W.2d 185 (Tenn. Ct.
App. 1985). Neither exact computation nor mathematical certainty is required in proof of
damages. Provident Life & Acc.'t Ins. Co. v. Globe Indemnity Co., 156 Tenn. 571, 3
S.W.2d 1057 (1928); Cummins v. Brodie, 667 S.W.2d 759 (Tenn. Ct. App. 1983). Only a
reasonable degree of certainty is required. Redbud Co-op Corp. v. Clayton, 700 S.W.2d
551(Tenn. Ct. App. 1985).
In light of the scarcity of sire identifications and in light of the testimony of both Drs.
Dunham and Cassell as to the need for such identifications in assessing lost milk
production damages, we are of the opinion that the verdict is not supported by competent
and material evidence in order to lay a sufficient foundation to enable the jury to make a
fair and reasonable assessment of the damages.
Accordingly, we reverse thejudgment of the trial court affirming the jury’s award of
10
damages to England in the amount of $77,840.54 and prejudgment interest of 8%, and
remand the issue to the trial court for further determination.
EVIDENCE OF WHITLEY’S DAMAGES
TABA contends that Whitley’s calculations concerning his damages were premised
upon unsubstantiated assumptions and speculations. Particularly, TABA insists that
Whitley failed to provide a “reasoned analysis” for his damages. We disagree.
In a case such as this, some level of speculation is to be expected. The fraudulent
conduct of Liggett is recognized as having been deliberate. The repercussions of his
actions were only known to the parties of this matter after the fact. Consequently, this case
is necessarily fraught with difficulties in determining a measure of damages. Undoubtedly,
however, damages do exist. The fact of damages is not speculative. Only the manner in
which these damages can be illustrated is subject to any speculation. But such speculation
is necessitated by the factual scenario in this matter.
Whitley testified as a man who has been involved in dairy farming his entire life.
When Whitley discovered that some of his cows had been inseminated with inferior semen,
he culled out the cattle inseminated by Liggett, which numbered forty-three, and sold thirty-
seven of these cows at a much lower price. In this Court’s opinion, this is the only course
of action that Whitley could have taken which would not in reality increase rather than
decrease his damages. He sold the inferior cattle and bought back what he could from the
money obtained from the sale. If he had kept the inferior cattle, perhaps his losses would
have been greater.
Contrary to what TABA insists, it is the opinion of this Court that the damage
analysis of Whitley was a “reasoned analysis.” As mentioned supra, Whitley was able to
determine that Liggett had bred forty-three of his cows by utilizing the charts Liggett filled
out each time he inseminated cows for Whitley. Of these forty-three cows, Whitley sold
thirty-seven of them receiving a sale price of $15,313.00. Had the cattle been correctly
11
bred and their ancestry properly fixed, Whitley testified that they would have sold for
approximately $1,300 to $1,500 per cow. With the funds he received from the sale of the
inferior cows, Whitley testified that he would have been able to purchase only twenty to
twenty-two replacement cows. This is fifteen fewer cows than Whitley should have had if
the cattle had been bred absent the fraudulent conduct of Liggett.
Using the “bull books” distributed by TABA, Whitley testified that the cattle, if bred
correctly as he had ordered, should have produced nine hundred to one thousand pounds
of additional milk over their ancestors. The cattle bred by Liggett would have come on line
in 1990. He further testified that over the lifetime of a heifer, she will produce three
offspring. In calculating his damages, Whitley took into account that one half of those
offspring would be heifers. Also accounted for in calculating damages were the deaths of
cows in his herd. Whitley used figures in his calculations that were lower than the herd
averages for the state as well as lower than normal appraisal rates on these animals.
Utilizing these figures, Whitley testified that the lost milk production because of the
absence of the fifteen cows would have been as follows:
First year: $12,542
Second year: $13,625
Third year: $13,135
Fourth year: $16,361
Fifth year: $18,531
Sixth year: $21,505
Seventh year: $23,813
TOTAL: $119,512
Whitley testified that the increase in the dollar amounts each year is due the increase in
cows as they replenish each year.
In addition to these figures, Whitley testified that he had two bulls that were derived
from Liggett’s inferior insemination. He sold these two bulls for a total of $300. Whitley
further testified that the bulls would have been worth $3,000 if they had been bred properly.
This added $2,700 to his calculated damages.
Furthermore, Whitley testified that the year after initially selling thirty-seven of the
12
cows inseminated by Liggett, he sold the remaining six cows for $500 apiece. He insists
that the value of these cows, if bred correctly, would have been approximately $1,300 per
cow for a total of $7,800. Therefore, Whitley appends this $4,800 difference to his
damages.
Finally, Whitley testified that he would have twenty-six mature cows, eleven spring
heifers, and eleven younger cows to cull out. Whitley affixed a value of $1,300 to each of
the twenty-six mature cows and eleven spring heifers for a total of $48,100. Whitley affixed
a value of $750 to each of the eleven younger cows for a total of $8,250. The total for all
“culling out” sales, according to Whitley’s estimation, amounted to $56,350.
When adding these figures to Whitley’s $119,512 estimated loss of milk production,
the grand total of Whitley’s calculated damages was $183,362. The trial court was of the
opinion that these damages were excessive, and consequently, granted a new trial to
TABA unless Whitley accepted a remittitur on his damages not in excess of $120,000.
In 1911, the Tennessee Legislature enacted what is now Tenn. Code Ann. §
20-10-102 concerning remittitur. In 1969 an additur statute was enacted--Tenn. Code
Ann. § 20-10-101. The purpose of these acts was to allow trial and appellate courts to
revise and correct errors relating to the size of a jury's verdict. The statutes recognize the
inherent power of trial courts to "suggest" an additur or remittitur as an alternative to a new
trial. The Supreme Court has held that a jury verdict found to be excessive may be cured
by remittitur. Poole v. Kroger Co., 604 S.W.2d 52 (Tenn.1980). Courts are encouraged
to exercise caution in ordering a new trial based on the size of a jury verdict and should,
if at all possible, utilize the remedy of remittitur. Pitts v. Exxon Corp., 596 S.W.2d 830
(Tenn.1980); Jenkins v. Commodore Corporation Southern, 584 S.W.2d 773 (Tenn.1979);
Guess v. Maury, 726 S.W.2d 906 (Tenn.App.1986).
The Supreme Court outlined its views on the impact of the trial judge's decision in
evaluating the excessiveness of a jury verdict over a century ago. In Tennessee Coal &
13
R.R. v. Roddy, 85 Tenn. 400, 5 S.W. 286 (1887), the trial judge stated that he felt the
judgment was excessive, but, nevertheless, sustained it "to terminate the litigation in this
case, ... this Court having tried the case for the third time." Id. at 402, 5 S.W. at 287. The
Supreme Court refused to set aside the judgment on appeal, holding that it was the
responsibility of the trial judge to do so if he thought it proper. It stated: "Much of the
importance and weight attached to jury trials proceeds from the presumption that an
intelligent and learned Circuit Judge, accustomed to weighing evidence, has scrutinized
the proof, looked into the faces of the witnesses, and indorsed the action of the jury." Id.
at 403, 5 S.W. at 288.
This same philosophy continued after remittitur had become recognized as a
method of curing excessive verdicts as an alternative to a new trial. In Wolfe v. Vaughn,
177 Tenn. 678, 688, 152 S.W.2d 631, 635 (1941), the Supreme Court stated that the
"amount fixed by the jury and concurred in by the trial judge will be accepted upon appeal
unless there is something to show a violation of the discretion" of the trial judge. The
Supreme Court has further stated that a jury verdict which has the trial judge's approval is
entitled to "great weight," D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 525, 206 S.W.2d
897, 908 (1947), and that the appellate court "rarely ever" disapproves damages set in this
manner. McClard v. Reid, 190 Tenn. 337, 343, 229 S.W.2d 505, 507 (1950). The
Supreme Court again emphasized the responsibility of the trial judge in determining
whether the amount fixed by a jury is excessive: "After he has approved the verdict it is
our duty not to disturb it unless it is evident that he failed to keep the jury within reasonable
bounds."
More recently the legislature has laid to rest any question about the standard of
review in the Court of Appeals on additur or remittitur by enactment of Ch. 232 of the
Public Acts of 1987, Tenn. Code Ann. §§ 20-10-101(b)(2) and 20-10-102(b) to provide that
Tenn. R. App. P. 13(d) shall apply. Tenn. R. App. P. 13(d) mandates in pertinent part:
(d) Findings of Fact in Civil Actions.--Unless otherwise required
by statute, review of findings of fact by the trial court in civil
actions shall be de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the
14
finding, unless the preponderance of the evidence is
otherwise. Findings of fact by a jury in civil actions shall be
set aside only if there is no material evidence to support the
verdict.
The courts are in agreement upon a primary guideline relevant to the issue of
damages. In Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38 (1928), this Court said:
The amount of the verdict is primarily for the jury to determine,
and next to the jury the most competent person to pass upon
the matter is the judge who presided at the trial and heard the
evidence. 157 Tenn. at 176, 7 S.W.2d at 36.
In our evaluation of the case before us, we find that there was sufficient proof of
Whitley’s damages presented to the jury on which they could base their award.
Recognizing that it is the jury's special province to evaluate damages and that damages
often cannot be defined with "mathematical precision," we do not find the award to be
excessive, but rather that it stemmed legitimately and naturally from the regrettable facts
of this case. After a de novo review on the record, we find that the jury's verdict conformed
to the requirements of Tenn. R. App. P. 13(d), and therefore we reinstate the original
award of $183,362.
CONSUMER PROTECTION ACT
Whitley and England insist that TABA should be held liable for Liggett’s fraudulent
conduct under the Tennessee Consumer Protection Act. They further insist that the
principles of agency should be made applicable to the Act in so holding TABA liable. We
agree.
Five days before the trial on this matter, plaintiffs filed a motion with the court in an
attempt to amend their complaint. In their attempt at amending the complaint, England and
Whitley desired to state more specifically what sections of the Tennessee Consumer
Protection Act they believed TABA had violated. The trial court denied their motion to
amend and the trial proceeded as scheduled.
15
England and Whitley’s original complaint contained a cause of action under the
Tennessee Consumer Protection Act. Specifically, it stated:
16. The actions alleged hereinabove constitute unfair or
deceptive acts or practices affecting the conduct of trade or
commerce in violations of the Tennessee Consumer Protection
Act of 1977. (Tenn. Code Ann. § 47-18-104[a]).
17. The plaintiffs and each of them are “consumers” within the
meaning of the Tennessee Consumer Protection Act of 1977.
18. The actions alleged hereinabove are also violations of
Tenn. Code Ann. § 47-18-104(b)(7) of the Tennessee
Consumer Protection Act of 1977 as representations that
goods or services are of a particular standard, quality or grade
when they were actually of another.
The record fails to disclose that England and Whitley, in accusing TABA, relied upon
any specific provisions of the Tennessee Consumer Protection Act besides sections (a)
and (b)(7). Tenn. Code Ann. § 47-18-104(a) of the Act provides that “unfair or deceptive
acts or practices affecting the conduct of any trade or commerce are hereby declared
unlawful.” In any event, it is the opinion of this Court that the jury could have found TABA
liable for Liggett’s deceptive trade practices under agency principles.
Apparent agency is essentially agency by estoppel; its creation and existence
depend upon such conduct by the apparent principal as will preclude him from denying
another's agency. Kelly v. Cliff Pettit Motors, 191 Tenn. 390, 234 S.W.2d 822 (1950).
Generally, to prove apparent agency one must establish (1) the principal actually or
negligently acquiesced in another party's exercise of authority; (2) the third person had
knowledge of the facts and a good faith belief that the apparent agent possessed such
authority; and (3) the third person relied on this apparent authority to his or her detriment.
Oppenheimer v. Wooline, 4 Tenn.Civ.App. 134 (1834). See also Southern Railway Co.
v. Pickle, 138 Tenn. 238, 197 S.W. 675 (1917) and Am.Jur.2d Agency, §§ 19 and 80
(1986).
First, there is sufficient proof in the record to support the finding that TABA
negligently acquiesced in Liggett’s exercise of authority in inseminating cows. Indeed,
16
TABA allowed its name to be placed on the breeding receipts. TABA’s general manager
admitted by negative inference that Liggett was a representative of TABA when he stated
that Liggett was “no longer a representative of the Association.” Furthermore, TABA
provided “bull books” whereby cattle farmers chose what type of bull semen with which to
inseminate their heifers.
Second, both England and Whitley testified that they believed that TABA and Liggett
were one and the same. Specifically, England testified as follows:
Q. To what extent, if any, did you believe T.A.B.A. had any
backing of Mr. Liggett?
A. Well, they was all one in my opinion.
Q. And what did the appearance of their name on this
breeding receipt signify to you?
A. That he was an agent of them.
Q. And did that give you any comfort in your belief that based
on this receipt, that he was an agent of T.A.B.A.?
A. Yes, because I have their bull books and all and I knew
what their semen was doing.
Whtiley testified similarly:
Q. During this period of time that you were using artificial
insemination on your dairy herd, from whom were you buying
bull semen?
A. Select Sires.
Q. And what is Select Sires and T.A.B.A., can you tell the
jury?
A. To me Select Sires and T.A.B.A. is just one giant
organization, that is the way I always understood it. It is a
place that you would purchase semen from the bulls that you
wanted to use to breed your cows. And T.A.B.A. was the State
organization and I understood the Ohio based placed to be the
National part and then you had county brances under that. I
lived in Maury County. Mr. Liggett, he was a Giles County
technician. Mr. Sam Kirk and Roger Toombs was Maury
County Technicians.
Q. For?
A. Tennessee Artificial Breeding Association.
Finally, England and Whitley relied upon this apparent authority of Liggett to their
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detriment. Testimony was given on behalf of both England and Whitley elaborating on the
extent of their damages.
Tenn. Code Ann. § 47-18-109(a)(1) and (e)(1) allow plaintiffs who filed suit under
the Act to recover actual damages and reasonable attorney’s fees.
We see no logical reason why agency principles should not be applied to the
Tennessee Consumer Protection Act.
CONCLUSION
In light of the foregoing, we reverse the judgment of the trial court granting TABA’s
motion for directed verdict and dismissing plaintiffs’ Tennessee Consumer Protection Act
claim and remand this matter to the trial court for further proceedings necessary and
consistent with this opinion. Further, we reverse the judgment of the trial court affirming
the jury’s verdict awarding England $77,840.54 and 8% prejudgment interest and remand
this matter to the trial court for further determination of damages and attorney’s fees to
award to England, if any, under the Tennessee Consumer Protection Act. Further, we
reinstate the jury’s verdict awarding Whitley $183,362.00 and remand to the trial court for
a further determination of the amount of attorney’s fees to award to Whitley, if any, under
the Tennessee Consumer Protection Act. Costs are adjudged equally against England and
TABA for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
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LILLARD, J.
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