IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
FILED
BRUCE HUTTON, Administrator ) August 22, 1997
of the Estates of Floyd Hutton and )
Lena Hutton, Deceased, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiffs/Appellees, )
) Hardin Circuit No. 2403
)
VS. ) Appeal No. 02A01-9612-CV-00314
)
CITY OF SAVANNAH, TENNESSEE, )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT OF HARDIN COUNTY
AT SAVANNAH, TENNESSEE
THE HONORABLE JULIAN P. GUINN, JUDGE
JAMES A. HOPPER
Savannah, Tennessee
Attorney for Appellant
EDWARD L. MARTINDALE, JR.
DREW AND MARTINDALE, P.C.
Jackson, Tennessee
Attorney for Appellee
AFFIRMED AS MODIFIED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
WILLIAM H. INMAN, SR. J.
In this wrongful death action, Defendant City of Savannah appeals the trial court’s
final judgment awarding $260,000 to Plaintiff/Appellee Bruce Hutton, administrator of the
estates of his parents, Floyd and Lena Hutton. For the reasons hereinafter stated, we
affirm the trial court’s judgment, but we modify the amount of the judgment.
On the morning of March 5, 1995, Floyd and Lena Hutton were killed in a car
accident at the intersection of Highway 69 and Airport Road in Hardin County. The weather
was cloudy and rainy that morning. Employees of the City of Savannah were repairing a
broken water line near the intersection when the accident occurred. A stop sign positioned
at the intersection required traffic on Airport Road to stop before crossing Highway 69,
while vehicles on Highway 69 were not required to stop. A City employee served as the
flagman directing traffic on Airport Road past the construction site and through the
intersection. The flagman first saw the Huttons’ vehicle, which was driven by Floyd Hutton,
when it was still fifty to sixty feet away. The Huttons’ vehicle proceeded west on Airport
Road toward the intersection at a speed of about ten miles per hour. As the Huttons’
vehicle proceeded through the intersection, it was struck by a tractor-trailer traveling south
on Highway 69. The Huttons were killed instantly.
The Plaintiff subsequently brought this wrongful death action against the City of
Savannah. At trial, the parties presented conflicting evidence as to the flagman’s actions
just prior to the accident. The City’s flagman testified that his flag was positioned for traffic
on Airport Road to stop as the Huttons approached the intersection. After he turned to
check the flow of traffic on Highway 69, he realized that the Huttons’ vehicle had not
stopped at the flag but had entered the intersection. The Plaintiff, on the other hand,
presented evidence that the flagman waved the Huttons through the intersection without
making sure that no traffic was approaching on Highway 69. The driver of the tractor-trailer
testified that, shortly after the accident, the flagman admitted that he flagged the Huttons
through the intersection and that he did not see the tractor-trailer approaching.
A dispute also arose as to whether the City had positioned its construction vehicles
alongside Highway 69 so as to block the drivers’ views. City employees testified that no
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construction vehicles were parked along the east side of Highway 69. The tractor-trailer
driver, however, testified that there were vehicles alongside the highway and that City
employees moved the vehicles before the police arrived. Other witnesses also testified
that they observed City vehicles parked along Highway 69.
At the time of their deaths, Floyd Hutton was seventy-nine years of age and Lena
Hutton was seventy. Floyd Hutton had retired from Paris Manufacturing when he was in
his early sixties, and Lena Hutton was a homemaker throughout the marriage. Both were
active and in good health. Floyd Hutton, who had a life expectancy of 6.53 years, received
social security payments of $428 each month. Lena Hutton, whose life expectancy was
13.37 years, received $427 in social security payments each month. The Plaintiff and his
wife and two children lived next door to the Huttons. The Huttons helped the Plaintiff by
feeding and seeing the children off to school each morning and by picking up the Plaintiff’s
son from school every afternoon. Additionally, Floyd Hutton worked plowing gardens for
himself, his neighbor, and the Plaintiff’s brother-in-law. In the summers Lena Hutton
engaged in gardening and canning, and in the winters she quilted. The parties stipulated
that each of the Huttons’ estates incurred $5,224.47 in funeral expenses and $157.50 for
ambulance services.
On appeal from the trial court’s final judgment, which awarded each of the Huttons’
estates the maximum recovery permitted by law, 1 the City presents the following issues for
this court’s review:
ISSUE NO. 1: [Whether the] preponderance of the
evidence in this case is that the Huttons were guilty of more
than 50% negligence in this accident, which negligence would
bar them from any recovery.
ISSUE NO. 2: [Whether the] Huttons’ recovery is
excessive and shocking under the proof in this case, in that
there was no proof presented by the Huttons of the pecuniary
value of each of their lives as required by [Tennessee Code
Annotated section] 20-5-113, i.e., future income offset by
reasonable and anticipated living expenses.
1
See T.C.A. §§ 29 -20-311, -403 (198 0 & Sup p. 1994).
3
Inasmuch as this case was tried by the court below sitting without a jury, this court’s
review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which
directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692
S.W.2d 863, 865 (Tenn. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297,
300 (Tenn. App. 1984); T.R.A.P. 13(d). In conducting a de novo review of the record
below, however, this court must presume that the trial court’s findings of fact are correct.
Under this standard of review, we must affirm the trial court’s decision unless the trial court
committed an error of law affecting the result or unless the evidence preponderates against
the trial court’s findings. Roberts, 692 S.W.2d at 865. In this regard, when a conflict in
testimony requires the trial court to make a determination regarding the credibility of a
witness or witnesses, such a determination is “binding on the appellate court unless from
other real evidence the appellate court is compelled to conclude to the contrary.”
Hudson v. Capps, 651 S.W.2d 243, 246 (Tenn. App. 1983).
Applying the foregoing standard, we affirm the trial court’s ruling on the liability
issue. The trial court found that evidence of the City’s negligence was overwhelming, and
we conclude that the evidence does not preponderate against the trial court’s finding of
liability against the City. In making this finding, the trial court necessarily must have
resolved any conflict in testimony in favor of the Plaintiff. After carefully reviewing the
record, we have determined that the evidence does not compel a contrary conclusion.
The more difficult issue presented by this case is whether the trial court erred in
awarding the Plaintiff $130,000 for each of the Huttons’ deaths, given the limited evidence
presented at trial regarding the pecuniary value of the Huttons’ lives. In a wrongful death
action brought in Tennessee, the plaintiff has the right to recover for the following
damages:
[T]he mental and physical suffering, loss of time, and
necessary expenses resulting to the deceased from the
personal injuries, and also the damages resulting to the parties
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for whose use and benefit the right of action survives from the
death consequent upon the injuries received.
T.C.A. § 20-5-113 (1994).
In the present case, damages for the Huttons’ mental and physical suffering were
not at issue because the parties stipulated that the Huttons died instantly. See
McClanahan v. Clayton, No. 01A01-9308-CV-00371, 1994 WL 248183, at *3 (Tenn. App.
June 10, 1994), perm. app. denied (Tenn. Aug. 29, 1994). Accordingly, the Plaintiff’s
recovery was limited to the necessary expenses resulting from the Huttons’ injuries, which
the parties stipulated to be $5,381.97 apiece, and the pecuniary value of the Huttons’ lives.
When a plaintiff’s recovery is based upon the pecuniary value of the decedent’s life, the
trial court must make this determination upon a consideration of several factors, including
the decedent’s life expectancy, “age, condition of health and strength, capacity for labor
and for earning money through skill in any art, trade, profession, and occupation or
business.” Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994). The resulting
amount should then be reduced by deducting the decedent’s probable living expenses had
the decedent lived. Wallace v. Couch, 642 S.W.2d 141, 144 (Tenn. 1982).
Citing McClanahan v. Clayton, No. 01A01-9308-CV-00371, 1994 WL 248183 (Tenn.
App. June 10, 1994), perm. app. denied (Tenn. Aug. 29, 1994), the City contends that the
award of damages in this case should be reversed based upon the Plaintiff’s failure to
prove the pecuniary value of the Huttons’ lives. In McClanahan, as in the present case,
the plaintiffs’ elderly parents were killed in an automobile accident. Mrs. McClanahan died
instantly, and Mr. McClanahan died without ever regaining consciousness, so the primary
issue at trial was the pecuniary value of each of the decedent’s lives. Id., at *3. The
plaintiffs presented proof concerning their parents’ ages, life expectancies, health, and
personal habits. Id., at *4. The plaintiffs also presented evidence that their parents
provided them with certain domestic services, such as babysitting the plaintiffs’ children
(the decedents’ grandchildren). Id. The plaintiffs failed, however, to present any proof of
the parents’ actual earning capacity. Id. Specifically, the plaintiffs did not present any
proof concerning their parents’ retirement income, such as social security benefits, nor did
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they demonstrate the value of any of the domestic services provided by the decedents.
Id. Based on the plaintiffs’ failure to prove the pecuniary value of their parents’ lives, the
trial court limited damages to the deceased parents’ medical expenses and funeral bills.
Id., at *1.
On appeal, this court affirmed, reasoning:
The life of every person has value. The value is not,
however, always economically quantifiable. Many times it rests
on the emotional bonds and attachments that bind family
members together. Personal worth is not measured merely by
material accumulations but rather by a person’s character,
deeds, and contributions to family, friends, and the community.
This appeal does not concern itself with the personal value of
the lives of Mr. and Mrs. McClanahan but rather with the
narrow issue of the “pecuniary value” of their lives for the
purpose of [Tennessee Code Annotated section] 20-5-113.
While we have no doubt of Mr. and Mrs. McClanahan’s
inestimable value to their family, we concur with the trial court’s
determination that their [children’s] proof concerning the
“pecuniary value” of their lives is insufficient to warrant a
monetary recovery under [section] 20-5-113.
McClanahan, 1994 WL 248183, at *4.
This court’s McClanahan decision suggests that, in order for pecuniary value to be
recoverable under the wrongful death statutes, the value must be “economically
quantifiable.” McClanahan, 1994 WL 248183, at *4. In the present case, as in
McClanahan, the Plaintiff failed to present proof of the value of the domestic services
provided to the Plaintiff by the decedents, such as feeding and seeing the Plaintiff’s
children off to school each morning and picking up the Plaintiff’s son from school each
afternoon. The only evidence quantifying the pecuniary value of the Huttons’ lives was that
Floyd Hutton had a life expectancy of 6.53 years and received social security payments of
$428 each month, while Lena Hutton had a life expectancy of 13.37 years and received
$427 in social security payments each month.2 If the Huttons’ expected incomes are
added to their stipulated expenses, this evidence justifies awards of approximately $75,000
2
Contrary to th e C ity’s argum ent on appeal, previous decisions of this court indicate that, in calculating
the pecuniary value of a deced ent’s life, the fact-finder prope rly m ay consider future social security benefits.
See McClanahan, 1994 W L 24 818 3, at *4; see also Burr v. State, 1987 W L 15842, at *7 (Tenn. App. Aug. 21,
1987).
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for Lena Hutton’s estate and $40,000 for Floyd Hutton’s estate, well below the amounts
awarded by the trial court.
We decline, however, to interpret McClanahan as requiring a rigid mathematical
calculation based merely on the decedent’s earning capacity and life expectancy. The
assessment of damages for the pecuniary value of a decedent’s life “is not governed by
fixed rules of mathematical precision,” but is a matter left to the sound discretion of the
finder of fact. Thrailkill v. Patterson, 879 S.W.2d 836, 841 (Tenn. 1994) (citing Wilkerson v.
Altizer, 845 S.W.2d 744, 749 (Tenn. App. 1992)); accord Strother v. Lane, 554 S.W.2d
631, 636 (Tenn. App. 1976) (noting that there is no set rule by which to measure the value
of a life); Crowe v. Provost, 374 S.W.2d 645, 654 (Tenn. App. 1963) (amount of pecuniary
damages is not governed by precise mathematical formula). Determining the pecuniary
value of a decedent’s life, therefore, does not involve merely multiplying the decedent’s
annual earning capacity by the decedent’s life expectancy. See Thrailkill, 879 S.W.2d at
841 (concluding that pecuniary value of decedent’s life was not merely what wages
decedent might have been able to earn during life expectancy); see also Bellamy v. Sadler,
640 S.W.2d 20, 22 (Tenn. App. 1982) (“Life expectancy tables, earnings and awards in
other cases are helpful in the determination of the value of the decedent’s life. However,
these guides only shed some light on the subject, each case must be decided upon its own
facts.”); Martindale v. Pillow, 1987 WL 11325, at *8 (Tenn. App. May 27, 1987) (concluding
that pecuniary value of decedent’s life “cannot be made the subject of mere mathematical
calculation, upon the basis of what the deceased would have earned during his expectancy
of life”). Even the McClanahan decision recognizes that the permissible range of proof of
the pecuniary value of a decedent’s life “is very broad and need not be absolutely precise
as long as it enables the jury [or other fact-finder] to make a fair and reasonable
assessment of damages.” McClanahan, 1994 WL 248183, at *3.
Moreover, the courts of this state have recognized that human lives have some
intrinsic pecuniary value beyond the market value for their services. In an action by a
husband for the wrongful death of his wife, for example, our supreme court declined to limit
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the husband’s damages to the wages the wife might have been able to earn or to the cost
of hiring another to perform the wife’s work in the home. Thrailkill v. Patterson, 879 S.W.2d
836, 841 (Tenn. 1994). The court reasoned that this “basis of recovery would overlook the
value of the wife’s personal interest in the affairs of the home and the economy incident
to her services.” Id. In another case, “the deceased was a 53 year old mentally retarded
person with an eighth grade education who had never been employed.” Redd v.
Lawrenceburg Power Sys., 1986 WL 5034, at *9 (Tenn. App. Apr. 30, 1986). Although the
evidence suggested that the decedent had no earning capacity, this court refused to hold
that the decedent’s life had no pecuniary value and, in doing so, declined to adopt a rule
“which would declare the life of any human being to be worthless.” Id.
In awarding the Huttons’ estates the maximum allowable recovery, the trial court
properly considered the foregoing principles. As in Thrailkill, if the pecuniary values of the
Huttons’ lives were to be determined merely by calculating their expected earnings over
the remainder of their lives, the damages awarded would fail to reflect the value of the
Huttons’ personal interest in caring for their grandchildren and the economy incident to
their services. See Thrailkill, 879 S.W.2d at 841. Nevertheless, we agree with the City’s
contention that the evidence presented at trial cannot support the amounts awarded by the
trial court, even when we consider evidence of the Huttons’ services to the Plaintiff and his
family. Accordingly, we modify the trial court’s judgment to award the estate of Lena
Hutton the sum of $100,000 and the estate of Floyd Hutton the sum of $55,000, for a total
award of $155,000.
In modifying the trial court’s judgment, we reject the City’s argument that the awards
should be reduced further based on what the Huttons’ reasonable living expenses would
have been had they survived. This court previously has held that an appellant cannot
complain of the trial court’s failure to make a deduction for the decedent’s living expenses
where the appellant fails to offer proof on this issue at trial. Bradford ex rel. Estate of
Bradford v. Swain, 1989 WL 1221, at *5 (Tenn. App. Jan. 13, 1989). Here, the City had
ample opportunity to cross-examine the Plaintiff regarding the amount of the Huttons’ living
8
expenses but chose not to do so. Cf. Wallace v. Couch, 642 S.W.2d 141, 144 (Tenn.
1982) (where during discovery process and again at trial defendant attempted to elicit
testimony from plaintiff as to amount of decedent’s probable living expenses).
As modified, the trial court’s judgment is hereby affirmed. Costs on appeal are
taxed to the City of Savannah, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
FARMER, J.
INMAN, Sr. J.
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