Davidson v. Lindsey

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 8, 2003 Session

ROBERT LEWIS DAVIDSON, Individually and as Administrator of the
Estate of Joyce Davidson, Deceased, et al v. CHARLES R. LINDSEY, et al.

Appeal by permission from the Court of Appeals, Western Section
Circuit Court for Henry County
No. 1365 Julian P. Guinn, Judge

No. W2000-02891-SC-R11-CV - Filed May 13, 2003

In this personal injury case, we address whether the trial judge properly performed his duties as
thirteenth juror in denying the appellees’ motion for new trial. The Court of Appeals found that
based on statements made by the trial judge during the trial, at the hearing for the motion for new
trial, and at the hearing to set bond and stay execution of the judgment, there was “an appearance of
bias” against two of the defendants due to their failure to reach a settlement with the plaintiffs. As
a result, the Court of Appeals found that the trial judge could not have properly discharged his duty
as thirteenth juror. We reverse. There is no indication that the trial judge was biased against the
defendants; instead, it is clear that the trial judge believed that the ultimate outcome was obvious
from the outset, and that the bad facts and poor testimony of one of the defendants should have
prompted a substantial settlement offer from the defendants. The record indicates that the trial
judge considered the issues in the case and explicitly approved the jury’s apportionment of fault and
the amount of damages awarded. Additionally, acting in our discretion under Tennessee Rule of
Appellate Procedure 13(b), we address the other issues raised on appeal by the appellees, and find
that they are without merit. As such, we reinstate the judgment of the trial judge approving the jury’s
verdict.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed;
Judgment of the Trial Court Reinstated

FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON,
ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Edward L. Martindale, Jr., Jackson, Tennessee, for the appellant, Robert Lewis Davidson.

Fred N. McLean, Paris, Tennessee, for the appellant, Charles R. Lindsey.

Raymond G. Prince, Nashville, Tennessee, for the appellants, Jason R. Ross and Alan P. Ross.
Russell E. Reviere and Michael L. Mansfield, Jackson, Tennessee, for appellees, Allen Briggs and
Southland Transportation.

OPINION

Factual Background

On the afternoon of July 27, 1998, the plaintiff/appellee Robert Lewis Davidson (“Mr.
Davidson”) and his wife, Joyce Davidson (“Mrs. Davidson,” or collectively “the Davidsons”), were
traveling north in their pickup truck driven by Mr. Davidson on Highway 79 from McKenzie,
Tennessee, to Paris, Tennessee, on a shopping trip.

Traveling southbound on Highway 79, in the following order, were the three other parties to
this lawsuit: first, the defendant/appellant Charles Lindsey (“Mr. Lindsey”), driving his pickup truck;
second, defendant/appellant Jason Ross (“Mr. Ross”), driving with four passengers in a Honda Civic;
and third, defendant/appellee Allen Briggs (“Mr. Briggs”), driving his semi-tractor which was leased
to his employer, defendant/appellee Southland Transportation (“Southland”), on his way to Jackson,
Tennessee, to pick up a trailer.

Highway 79 consists of two lanes of traffic, one lane heading north, and one lane heading
south. Near Routon, Tennessee, the southbound lane widens to two lanes for approximately one-half
mile to allow southbound traffic to pass, while there remains only one northbound lane. When Mr.
Lindsey, Mr. Ross, and Mr. Briggs arrived at this half-mile portion of highway, the following events
occurred.

Mr. Ross was being tailgated by Mr. Briggs, so Mr. Ross moved into the right southbound
lane. Mr. Briggs then moved into the area vacated by Mr. Ross and began to tailgate Mr. Lindsey.
A disinterested witness, Mark Hart, testified at trial that Mr. Briggs was so close to Mr. Lindsey that
a person could have stepped off Mr. Briggs’s bumper onto Mr. Lindsey’s bumper. Fearing that Mr.
Briggs would “run over [him],” Mr. Lindsey then attempted to shift into the right lane. However,
he collided with Mr. Ross, causing Mr. Lindsey to immediately pull back into the left lane, where
he then collided with Mr. Briggs, who had already begun to pass. Mr. Briggs skidded across the
center line of Highway 79 and collided with an oncoming northbound vehicle driven by Juan
Calderon (“Mr. Calderon”), who is not a party to this action. Seeing these events unfold, Mr.
Davidson had thought it best to pull off the highway and stop. After colliding with Mr. Calderon,
however, Mr. Briggs continued to skid and collided head-on with the Davidsons’ vehicle while it
was parked on the shoulder of the highway. Mrs. Davidson was killed instantly, and Mr. Davidson
sustained serious injuries.

On June 7, 1999, Mr. Davidson, individually and as administrator of the estate of Mrs.
Davidson, and the Davidsons’ five adult children (collectively, “the plaintiffs”) filed a complaint in
the Circuit Court of Henry County against Mr. Lindsey, Mr. Jason Ross, Alan Ross (the father of
Jason Ross who was sued under the family purpose doctrine), Mr. Briggs, and Southland (all
collectively, “the defendants”). The complaint alleged that the defendants proximately caused the

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accident through negligent operation of their vehicles. Mr. Davidson claimed that he was entitled
to damages for past and future medical expenses, impairment of earning capacity, lost wages, past
and future pain and suffering, past and future emotional injuries, past and future loss of the
enjoyment of life, property damages, injuries, and loss of consortium. As administrator of Mrs.
Davidson’s estate, Mr. Davidson claimed that the estate was entitled to damages for the pecuniary
value of Mrs. Davidson’s life, pain and suffering, medical and funeral expenses, prejudgment
interest, and damages under the wrongful death statute. The Davidson children claimed they were
entitled to damages for loss of consortium. The total amount of compensatory damages requested
was $1,625,000.

Several motions were filed prior to trial. On February 9, 2000, the plaintiffs filed a motion
to increase their request for compensatory damages to $5,000,000. On February 11, 2000,
defendants Mr. Briggs and Southland filed a motion to dismiss the individual claims of the Davidson
children, arguing that under Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999),
no separate cause of action exists for a child’s loss of consortium. Further, the motion claimed that
Jordan did not retroactively provide for spousal and parental consortium claims. Mr. Briggs and
Southland also filed a motion in limine to exclude evidence concerning Mr. Briggs’s and Mr. Ross’s
post-accident activities. Finally, on February 24, 2000, the plaintiffs filed a motion to amend the
complaint to allege that Mr. Briggs was negligent per se in violating Tennessee Code Annotated
section 55-10-103, the duty to give information and render aid.

The trial court heard all four motions on April 27, 2000. The plaintiffs’ motions to amend
their complaint were granted. The parties agreed to dismiss the children as plaintiffs. The trial court
denied the motion in limine of Mr. Briggs and Southland. On July 24, 2000, the trial court granted
one final motion submitted by the plaintiffs, to preclude reference to the fact that certain medical and
funeral expenses incurred by the Davidsons had been paid by insurance and/or Medicare.

A jury trial was held on July 26 and 27, 2000. The jury found that Mr. Briggs and Southland
were 100% liable, and the jury awarded damages of $1,250,000 to Mr. Davidson and $500,000 to
the estate of Mrs. Davidson. The trial court entered judgment on the jury’s verdict on August 14,
2000, and dismissed the plaintiffs’ claims against the remaining defendants.

Mr. Briggs and Southland moved for a new trial on September 13, 2000. The trial court
denied the motion on October 10, 2000. On November 1, 2000, Mr. Briggs and Southland filed a
motion to set bond and to stay execution of the judgment pending appeal; the motion was denied by
the trial court on November 9, 2000. On November 28, 2000, Mr. Briggs and Southland filed a
motion for review of the trial court’s denial of the motion to stay execution with the Court of
Appeals. On December 18, 2000, the Court of Appeals reversed the trial court and allowed Mr.
Briggs and Southland to file one million dollars bond to stay execution of the judgment pending
appeal. Mr. Briggs and Southland filed the bond on January 12, 2001.

Mr. Briggs and Southland appealed to the Court of Appeals, presenting seven issues for
review. The Court of Appeals reached only the first issue, whether the trial court properly

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discharged its duty as thirteenth juror to independently weigh the evidence presented at trial and
determine whether the evidence preponderated for or against the jury’s verdict.

The Court of Appeals found that based on the trial judge’s commentary during trial, at the
hearing on the motion for new trial, and at the bond hearing, there was “an
appearance of bias against Mr. Briggs and Southland Transportation due to the failure of settlement
between their insurance carrier and the plaintiffs.” Thus, the Court of Appeals determined that the
trial judge could not have properly discharged his duty as thirteenth juror, and the Court of Appeals
reversed and remanded for a new trial.

We granted Mr. Davidson, Mr. Lindsey, Mr. Ross, and Alan Ross’s Rule 11 applications for
permission to appeal, and we now reverse the decision of the Court of Appeals and reinstate the
judgment of the trial court.

Analysis

I. Motion for New Trial

No verdict is valid until it is approved by the trial court judge. See Cumberland Tel. & Tel.
Co. v. Smithwick, 79 S.W. 803, 805 (Tenn. 1904). Where, in a motion for new trial, the judge
simply approves the jury’s verdict without further comment, the appellate court presumes that the
trial judge adequately performed his function as thirteenth juror. See Holden v. Rannick, 682
S.W.2d 903 (Tenn. 1984) (citing Central Truckaway Sys. v. Waltner, 253 S.W.2d 985, 991 (Tenn.
Ct. App. 1952). This duty of a trial judge to act as “thirteenth juror” is well established:

The reasons given for the rule are, in substance, that the circuit judge hears the
testimony, just as the jury does, sees the witnesses, and observes their demeanor upon
the witness stand; that, by his training and experience in the weighing of testimony,
and the application of legal rules thereto, he is especially qualified for the correction
of any errors into which the jury by inexperience may have fallen, whereby they have
failed, in their verdict, to reach the justice and right of the case, under the testimony
and the charge of the court; that, in our system, this is one of the functions the circuit
judge possesses and should exercise--as it were, that of a thirteenth juror. So it is
said that he must be satisfied, as well as the jury; that it is his duty to weigh the
evidence; and, if he is dissatisfied with the verdict of the jury, he should set it aside.

Smithwick, 79 S.W. at 804.

When the judge comments as to the reasons for his or her decision, “this court looks to them
only for the purpose of determining whether he passed upon the issues, and was satisfied or
dissatisfied with the verdict thereon.” Id. at 805.

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 The Court of Appeals determined that the trial judge in this case failed to properly discharge
his duty as thirteenth juror because his bias against two of the defendants, Mr. Briggs and Southland,
prevented him from independently weighing the evidence and objectively determining his
satisfaction with the jury’s verdict. In support of its decision, the Court of Appeals quoted at length
the trial judge’s comments during the trial itself, the hearing on the motion for a new trial, and the
hearing on the motion to set bond and stay execution of the judgment:

At the close of the proof on the first day of trial, after the jury had exited the courtroom, the
trial judge made the following comments to the parties' attorneys:

Trial Judge: Gentlemen, let me ask you, didn't I order this case into mediation
somewhere earlier?

Mr. Martindale: Yes, sir.

Trial Judge: Who mediated it?

Mr. Martindale: Judge McGinley.

Trial Judge: Judge McGinley was the mediator?

Mr. Martindale: Yes, sir.

Trial Judge: The reason I pose that question to you is, you're all experienced
attorneys. I mean, this is not your first time down the path. And from time to time
you see cases, perhaps not that often, but you see cases that ought to be settled. And
this, quite obviously, is one of those cases. I obviously have enough calluses to know
that many times cases that should be settled, aren't settled.

And they are many times not settled for the wrong reasons.

I realize that there can be recalcitrant plaintiffs. And sometimes there's stubborn
defendants. And I suspect from time to time there might even be a case where,
perhaps, everybody didn't understand their positions, their weaknesses and their
strengths.

I say that, and certainly wouldn't suggest that it's the attorneys.

But I think perhaps you really want to reevaluate your positions, and maybe take a
few minutes to talk to each other and make sure that everybody has got their best
offers up on top of the table here.

It would be very interesting to see what the jury will do with the case. But, you
know, I see a whole lot of interesting cases and I suspect that you do, too. And

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 justice says that if it can be settled, then it ought to be settled. I'd like to make sure
that everybody has done what they ought to have done here. And I'm not suggesting
for one moment that you haven't. You know, sometimes there's slight inflection of
a word that is misinterpreted. And people think, well, they've stopped there, and I
ain't going to be the one to make the next overture. You need to make sure that you
got all your money on the table. Particularly now that you've got all the facts before
the jury.

At the October 10, 2000 hearing on the motion for a new trial, the trial judge stated the
following with respect to the failure to settle the case and the mediation that had taken place: 1

You were given a file that some insurance adjuster or appraiser either was unable or
inexplicably refused to evaluate. I'm aware of that.

***

The facts were so bad that after this case was over, I sought out Judge McGinley,
who I had had mediate this matter, to remonstrate with him as to why this case had
not been settled. If there was ever a case begging for settlement, this was it.
Incidentally, Judge McGinley is very good about settling these. He had no
explanation, other than it was an adamant feeling on both behalf of the plaintiff and
the defendant. It was his feeling that had he been able to coerce a reasonable offer,
that the plaintiff would have been coerced to take a reasonable offer. Judge
McGinley is pretty good at this. As I say, I went to him to remonstrate with him for
not settling it. This case should have been settled.

***

I would suspect that a wise plaintiff might be talking about some settlement. The
question is, can I get a wise defendant. He's been forewarned now. I know how you
handle cases, Mr. Reviere. Perhaps you might ought to knock somebody around a
little bit.

On November 9, 2000, the trial judge again discussed the issue of settlement during the
hearing on the motion to stay execution of the judgment.

1
Rule 31 o f the Tennessee R ules of the Supreme Co urt (“Rule 31”) governs judicial settlement conferences,
which are mediations cond ucted by jud icial officers. See Tenn. Sup. Ct. R . 31, § 2(e). A s a Rule 31 “neutral,” a judge
acting as a mediator must “preserve and maintain the confidentiality of all information obtained” during Rule 31
proceedings. See Tenn. Sup. Ct. R. 31, §§ 2(l), 10(d). Defendants imply that this confidentiality was breached and point
to the in-court exchange with the trial judge as additional evidence of bias on the part of the trial court. The record does
not reflect the information, if any, imparted to the trial judge by the judge conducting the settlement conference. W e
decline to infer impro priety from this exchange.

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 Trial Judge: Let me ask you - it has bothered me in this case since it's [sic] inception,
of why it didn't settle. Was this million dollars offered to the plaintiff?

Mr. Reviere: I guess we're waiting. I understood that the discussions and mediation
are supposed to be kept in confidence. But I was . . .

Trial Judge: Well, I think I'd like to consider that, because I strongly detect an
insurance company that has gone beyond the realm of recalcitrance. Knowing the
facts, or they should have known the facts in this case, they should have been up
there, cramming the million dollars down these plaintiffs' throats. Now, the plaintiff
can pound their chest all they want to and say, "Well, we ain't going to accept that or
we wouldn't accept it," but he would have been an utter fool if he didn't, and he
would have perhaps been sued for malpractice somewhere along the line. But I
detect an unwillingness to deal. I detect an unwillingness to get this case to its
ultimate conclusion, to hold it off, to not settle the case.

***

I don't see that, now that we've got judgment here - what did they offer the man? Did
they ever offer anything near the million?

Mr. Reviere: Well, I'm answering this because Your Honor has put the question to
me, and as an officer of the court I am responding. I guess I have to say at the outset,
it was my understanding that this is not, this was supposed to be, under the rules, kept
in confidence. But I will answer your question.

Trial Judge: Well, it's kept from the court prior to trial. And what I'm attempting to
do is to evaluate and see if there was a good-faith attempt to settle, or as I strongly
have suspected all along, there was not.

***

I remember remonstrating with you gentlemen after the jury came back with - no, I
guess it was on the Motion for New Trial, and suggesting that now that the adrenaline
had subsided and the emotions had eased, that you look to settling this case. I
assume that settlement negotiations were to no avail, or I wouldn't have you in here
today. Were there any?

Following the hearing on the motion to stay execution of the judgment, the trial judge denied
the motion and stated his reasoning as follows:

I'm of the opinion, and remain of the opinion, that this insurance company has not
negotiated in good faith, that they were attempting to delay this case and they are
attempting at this time to obtain the benefits of the very situation that they created,

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 that is essentially, a free appeal, having a case that should have been settled and could
have been settled.

In reversing the jury’s verdict, the Court of Appeals failed to quote language from the
hearing on the motion for new trial in which the trial judge clearly acknowledged his approval of
the verdict:

Excessiveness. I rest very easy with the amount of the verdicts that were returned in
this case. There is no question, whatsoever, as to the appropriateness of the larger
of the two. That is, the surviving husband. There is that question that will have to
be resolved by the Supreme Court as to the deceased wife’s verdict because of the
inclusion of the loss of consortium elements.

Apportionment. I approve the verdict of the jury as to that. . . ..

I rest easy with what I did with the case. I approve the verdicts of the jury in this
instance.

The trial judge’s one reservation regarding the verdict involved the award to the estate of Mrs.
Davidson regarding the application of Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593
(Tenn. 1999), but that issue was made moot by Hill v. City of Germantown, 31 S.W.3d 234 (Tenn.
2000). It is apparent that the trial judge had no reservations about the finding of negligence or the
amount of the award.

Mr. Briggs and Southland assert that the judge’s statements approving the verdict do not cure
the bias present throughout the trial. They state that nothing “forecloses an appellate court from
examining the judge’s comments during a hearing on a motion for new trial to determine whether
the court was biased for or against a party. . ..” However, it appears that rather than exhibiting a bias
against Mr. Briggs and Southland, the judge’s fervor is instead related to his belief that the facts and
circumstances presented a very bad case for Mr. Briggs and Southland. Indeed, given the bad facts
and poor testimony of Mr. Briggs, the trial judge could not understand why Mr. Briggs and
Southland would not settle the case. At the hearing for the motion for new trial, counsel for Mr.
Briggs himself stated the following:

MR. REVIERE: . . .So we suggest to Your Honor that it was all calculated to simply
put Mr. Briggs in as bad a light as could be. And as we all know, Mr. Briggs didn’t
need any help in that regard.

THE COURT: He didn’t need a whole lot of help.

Later in the hearing, the trial judge goes on to say the following:

You were given a case that had an impossibly bad set of facts and a client who did
everything, notwithstanding your best advice and preparation, the wrong way. I

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 don’t think I’ve ever seen a client that really related his series of events worse than
this man did. If there were two ways to testify, one acceptable and the other
unacceptable, he found a third way to make it sound worse.

These statements explain why, after the first day of trial (which included the testimony of
Mr. Briggs), the trial judge suggested to the parties, outside the presence of the jury, that they again
try to settle the case.

The judge’s comments do not reveal a bias against the defendants: his comments indicate
that he wholeheartedly agreed with the jury verdict as the thirteenth juror, and that in his opinion,
the ultimate outcome was obvious from the outset and should have prompted a substantial settlement
offer from Mr. Briggs and Southland. The trial judge explicitly approved the jury’s apportionment
of fault and the amount of damages awarded. There is nothing in the record to indicate that the trial
judge failed to adequately perform his duty as thirteenth juror. Instead, the record reflects that he
logically considered the issues and indicated his satisfaction with the verdict. Thus, we reverse the
Court of Appeals on this issue and reinstate the judgment of the trial judge approving the jury’s
verdict.

To prevent needless litigation and to promote judicial economy, we exercise our discretion
and address the other issues raised by Mr. Briggs and Southland rather than remanding the case to
the Court of Appeals. See Tenn. R. App. P. 13(b) (“[t]he appellate court . . . may in its discretion
consider other issues in order, among other reasons: (1) to prevent needless litigation, (2) to prevent
injury to the interests of the public, and (3) to prevent prejudice to the judicial process.”).

II. Cross-Examination of Mr. Briggs

The appellees argue that testimony regarding whether or not Mr. Briggs rendered assistance
to the Davidsons following the accident was irrelevant and that it was admitted inappropriately as
a prior bad act. The challenged testimony relating to Mr. Briggs’s conduct at the scene of the
accident clearly is not barred by Tennessee Rule of Evidence 608(b). Mr. Briggs’s testimony was
impeached only after he claimed, in response to an open-ended question, that he had assisted the
Davidsons. He was then impeached by his inconsistent deposition testimony. This was proper
impeachment, and, in sum, the trial court’s admission of this testimony was not error. Thus, we find
that this issue is without merit.

III. Testimony of Mr. Ross

Mr. Briggs and Southland argue that the trial court erred by allowing Mr. Ross to testify with
regard to (1) facts concerning the activities of Mr. Ross and the occupants of his vehicle to free the
Davidsons from their truck beyond the facts necessary to describe the accident scene and, to some
extent, (2) the nature of Mr. Davidson’s injuries immediately following the accident. Mr. Ross
testified that he and one of his passengers pulled Mr. Davidson out of his truck, and he described
what they saw and what Mr. Briggs did. Testimony describing the scene was relevant and properly
admitted. This issue is without merit.

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 IV. Testimony of Trooper Sexton

Mr. Briggs and Southland argue that Trooper Sexton’s testimony included inadmissible
hearsay that affected the jury’s verdict. The appellees claim specifically that Mr. Ross’s statement
to Trooper Sexton that Mr. Briggs had been tailgating him prior to the accident was hearsay.
Plaintiffs assert that Mr. Ross’s statement qualifies as an excited utterance: the defendants conceded
in their brief to the Court of Appeals that the accident qualifies as a startling event, so the only
question is whether Mr. Ross’s statement was the spontaneous result of stress occasioned by this
event. Mr. Ross was nineteen years old at the time of the accident, and just before talking to Trooper
Sexton, he had participated in pulling Mr. and Mrs. Davidson from their truck just before it
exploded. Mr. Ross was so much under the stress occasioned by the accident that he did not
remember talking to Trooper Sexton. Thus, we find that Mr. Ross’s statement falls within the
excited utterance hearsay exception.

We further note that Trooper Sexton’s testimony was cumulative to that of several other
witnesses, including Mr. Ross on direct examination, Mr. Lindsey, and Mark Hart, a disinterested
witness to the accident, all of whom testified that Mr. Briggs was tailgating the other cars.

Thus, this issue is likewise without merit.

V. Apportionment of Fault

The appellees claim that the jury’s apportionment of 100% fault against Mr. Briggs and
Southland is clearly erroneous and not supported by material evidence. Upon careful review of the
record, we conclude that the jury’s apportionment of 100% fault to Mr. Briggs and Southland is not
clearly erroneous and is supported by material evidence. See Tenn. R. App. P. 13(d); Cross v. City
of Memphis, 20 S.W.3d 642, 644-45 (Tenn. 2000). Thus, this issue is without merit.

VI. Jury Instructions

Mr. Briggs and Southland next assert that the trial court erred by failing to instruct the jury
that they should consider the ages of the Davidsons’ children in determining whether the children
were entitled to loss of consortium damages as a result of Mrs. Davidson’s death. Mr. Briggs and
Southland base this argument on the following language from Jordan:

Adult children may be too attenuated from their parents in some cases to proffer
sufficient evidence of consortium losses. Similarly, if the deceased did not have a
close relationship with any of the statutory beneficiaries, the statutory beneficiaries
will not likely sustain compensable consortium losses or their consortium losses will
be nominal. The age of the child does not, in and of itself, preclude consideration of
parental consortium damages.

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984 S.W.2d at 601. Thus, the appellees assert that the trial judge erred by not instructing the jury that
the age of the deceased’s children should be considered in calculating damages for the children’s loss
of consortium.

While the Jordan decision makes clear that the age of a child does not in and of itself
preclude recovery of consortium losses, it does not mandate a jury instruction on this issue. At trial,
each of the five Davidson children testified about the close relationship they had with their mother,
including one child who, though an adult, was living at home at the time of the accident. Thus, the
evidence indicated that close relationships existed between each of the Davidson children and their
mother. The jury was entitled to consider this evidence of loss of consortium in calculating the
pecuniary value of Mrs. Davidson’s life. The lack of a specific jury instruction was not error in this
case.

VII. Damages

Mr. Briggs and Southland next claim that the damages awarded by the jury were excessive.
If there is any material evidence to support the award of damages, we must affirm the judgment.
Tenn. R. App. P. 13(d). The $500,000 damage award to Mrs. Davidson’s estate is supported by
material evidence. Approximately $101,000 of the $500,000 verdict is conceded.2 The remaining
portion of the award, approximately $399,000, is supported by material evidence related to Mrs.
Davidson’s pecuniary contributions to her family in the form of personal services, such as cooking
and other housekeeping and the value of her consortium. Her five children testified at length about
the strength of their relationship with their mother and her role in keeping the family together. In
sum, material evidence supports the damages awarded to the estate.

Likewise, the jury’s award of $1,250,000 in damages to Mr. Davidson is supported by
material evidence. Mr. Davidson sustained extensive injuries that greatly affected his life. His
medical bills alone totaled $200,000. His major injury was an open fracture of his left femur, and
it required two surgical procedures involving the insertion of 12" metal rods in his leg. He spent a
month convalescing at his daughter’s home, during which time he was bedridden and required
nursing care. He received painful physical therapy sessions four times per week; Mr. Davidson’s
daughter, Dianne Cook, testified at trial as to the grueling nature of the therapy:

Q. And what type of physical therapy were they doing for him?

A. They would come out and – he had a brace that he had to wear at all times,
because he had to keep his leg straight. And they would remove that brace, and they
would start bending his leg. And she would actually get down on her hands and
knees and she would start – because his leg wouldn’t bend at all. And she would get
down on her hands and knees and she’d start pushing his leg. And I would put my
weight on his shoulders to hold him in the wheelchair.

2
The amount conceded is as follows: $8 68.2 5 (medica l expenses) + 7,889.90 (funeral expenses) + 92,568
(social security for 19 years life expectancy) = $101,326.15.

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 Q. Was that a painful experience for him?

A. Yes. He would scream.

Q. You okay?

A. (Witness moves head up and down.)

Mr. Davidson endured this physical therapy for two months before doctors would allow him to begin
using a walker. He then continued physical therapy five days per week, for two hours each session.
Finally, two years after the accident, Mr. Davidson was released from his doctor’s care and assigned
a permanent impairment rating of 54%, based on loss of motion in his left knee and ankle, the
shortening of his leg, atrophy of his thigh, and decreased venous supply to his leg which results in
leg swelling. Due to the swelling, Mr. Davidson is permanently required to wear a “Jobst stocking”
to reduce excess fluid in his leg. Mr. Davidson’s son and daughter-in-law moved into his home to
help care for him and assist with daily tasks, as Mr. Davidson is unable to live alone. Mr.
Davidson’s mobility is severely limited; he cannot go up stairs without the aid of a banister or like
structure, and he cannot stand without balancing assistance. He uses either a walker or two canes
to walk at all times. He can no longer engage in activities he enjoyed before the accident, such as
woodworking, because he cannot steady himself. Furthermore, Mr. Davidson wore a prosthetic right
leg prior to the accident, and had adjusted quite well to using it. The prosthesis was damaged in the
accident and had to be repaired and subsequently shortened to make it level with his injured left leg.
Mr. Davidson, his daughter, his son, and his doctor testified about Mr. Davidson’s injuries and their
effect on him, and their testimony went unchallenged. Thus, the damages awarded are supported by
material evidence. The defendant’s claim that the damages were excessive is without merit.

Conclusion

Having concluded that the trial judge fulfilled his duty to act as thirteenth juror, the judgment
of the Court of Appeal is reversed. Additionally, the six other issues presented for review are
without merit. As such, the judgment of the trial court is reinstated. The costs of the appeal are
taxed to the appellees, Allen Briggs and Southland Transportation, for which execution may issue
if necessary.

___________________________________
FRANK F. DROWOTA, III, CHIEF JUSTICE

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