Lambert Bros. v. Larkins

Mr. Justice TomliNsoN

delivered the opinion of the Court.

The jury awarded Larkins damages in the amount of $20,000. The Trial Judge suggested a remittitur of $5,000. It was accepted under protest and appealed. The Court of Appeals affirmed the Trial Judge. By petition for certiorari, heretofore granted, it is prayed that this Court adjudge a further reduction.

In the case of Koehn v. Hooper, 193 Tenn. 417, 419, 246 S.W.2d 68, 69, the following rule deduced from previous decisions is stated thus:

“We find no reported case from this Court, since the Court of Appeals was created, in which, when the Trial Judge and the Court of Appeals have concurred in granting or refusing a remittitur, that this Court has interfered with their judgment. The reported cases all present cases where the low.er Courts have differed, and where 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 will not be disturbed.”

The rule stated was not, of course, intended to include verdicts tinctured with corruption of one or more jurors; thereby, an illegal verdict. In such a situation the proper course would be, not to reduce the verdict, but to set it aside. Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38.

There is no corruption involved in the present case. Therefore, this Court, assuming it has the authority otherwise, must, in the opinion of its majority, overrule Koehn v. Hooper, supra, which is this Court’s latest expression upon the question, if it should further reduce the amount of this judgment.

In the opinion of the majority members of this Court, Koehn v. Hooper, supra, aside from a code section to be hereinafter noted, is supported by the previous decisions of this Court.

Several of the cases state that when the Trial Judge and the Court of Appeals have concurred in approving the amount to he allowed, the amount being equal to or less that the amount allowed by the verdict of the jury, the practice has been to treat such concurrence as “well nigh conclusive”. Reeves v. Catignani, supra, Lunn v. Ealy, 176 Tenn. 374, 141 S.W.2d 893, and Wolfe v. Vaughn, 177 Tenn. 678, 688, 152 S.W.2d 631.

Others of our decisions go futher. For instance, in Carolina, C.&O.R. v. Shewalter, 128 Tenn. 363, 161 S.W. 1136, 1137, L.R.A. 1916C, 964, the Court said that “we will not interfere in a matter of this sort, where the Court of Civil Appeals has upheld the trial judge”. And in Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 461, 186 S.W. 1053, 1056, the Court said that it saw no reason “for departing from our usual practice of accepting the concurrent finding of both lower courts on the matter of damages as conclusive”. And in Goodner v. Goodner, 147 Tenn. 517, 537-538, 249 S.W. 805, 811, 33 A.L.R. 1222, this appears:

“It is insisted that the verdict of the jury in this case is so excessive as to indicate passion, prejudice and caprice upon the part of the jury.

“It is a sufficient answer to this assignment to point out that the trial judge and the Court of Civil Appeals have concurred in holding otherwise.”

And in Provident Life & Accident Insurance Co. v. Rimmer, 157 Tenn. 597, 600, 12 SW.2d 365, 367, the rule was stated thus:

“The Court of Appeals, upon reviewing the evidence, sustained the action of the trial judge in directing a remittitur of the penalty, and, under the facts presented, the concurrent action of the trial judge and Court of Appeals, involving an exercise of discretion, will not he reviewed in this court.”

Thus it is that previous decisions of this Court support the rule stated in Koehn v. Hooper to the effect that, in the absence of a corrupt verdict, the concurrence of the two lower Courts as to the amount of damages, if supported by material evidence, will not he disturbed here. If corrupt, the verdict should be set aside, not reduced.

Section 27-119, T.C.A., as this Court construes it, is in accord with the rule re-enunciated in Koehn v. Hooper, supra. Eliminating provisions immaterial here, that code section provides as follows:

“If the judgment of the trial court, with regard to a remittitur, is affirmed in the Court of Appeals, * * # the party in whose favor the verdict or judgment has been rendered may * * * take the case * * * upon that point, to the Supreme Court; and if in the opinion of the Supreme Court the verdict should not have been reduced, and the Court of Appeals was in error in affirming the action of the- trial court, as to said remit-titur * * # the case shall be reversed to that extent, and judgment shall be rendered in the Supreme Court for the full amount originally awarded by the jury.” (Emphasis supplied.)

This language can mean but one thing, to-wit,— that the Supreme Court is given jurisdiction to restore the verdict of the jury if, in its opinion, the Trial Judge and the Court of Appeals were in error in reducing it, but is without jurisdiction to reduce that verdict further than reduced by the Trial Judge or the Court of Appeals. The jurisdiction of this Court, in the language of this code section, is that if this Court thinks the verdict should not have been reduced, then the case shall be reversed to that extent and judgment rendered “for the full amount originally awarded by the jury.”

The insistence of petitioner that this Court reduce the verdict below the amount fixed by the remittitur suggested by the Trial Judge and affirmed by the Court of Appeals is rejected, and the judgment of the Court of Appeals, affirming the judgment as finally entered in the Circuit Court, is affirmed with costs of the appeal adjudged against the petitioner. Mr. Justice Swepston dissents.