We hold the rule to be that a tort feasor must accept the injured person as he finds him. If the wrongful act results in the aggravation of, or an increase in, a permanent partial disability existing in the injured party, then it matters not to what extent the wrongful act aggravates or increases that disability; any increase thereof renders the tort feasor liable for all. Wilson v. Cook Manufacturing Company (1966), 56 Tenn. App. 129, 405 S.W.2d 584. See also: Elrod v. Town of Franklin (1918), 140 Tenn. 228, 204 S.W. 298; Holt v. McCann (1968), 58 Tenn. App. 248, 429 S.W.2d 441. The jury should have been so charged. p. 778. The rationale for the stated rule is set forth subsequently in the body of that opinion as follows:
and needs no discussion other than the foregoing. If the trial judge was not in error in refusing to order an independent examination, then he was not in error for refusing a continuance for such purpose. The granting or refusal of continuance is discretionary with the trial judge, and his exercise of discretion will not be disturbed in the absence of a clear showing of abuse of discretion or injustice. Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313 (1957), Higgins v. Steide, 47 Tenn. App. 42; 335 S.W.2d 533 (1959), Arrants v. Sweetwater Bank, 55 Tenn. App. 631, 404 S.W.2d 253 (1965); Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441 (1968). The second assignment of error is respectfully overruled.
Monday v. Millsaps, 37 Tenn. App. 371, 264 S.W.2d 6 (1953). See also Clinchfield Railroad Company v. Forbes, 57 Tenn. App. 174, 417 S.W.2d 210 (1966) and Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441 (1968), using the same language. For pain and suffering, out of pocket expenses and possibly future nursing home care, the Court finds the sum of $80,000.00 to be reasonable.
Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978); Transport, Inc. v. Perry, 220 Tenn. 57, 414 S.W.2d 1 (1967); Shuey v. Frierson, 197 Tenn. 235, 270 S.W.2d 883 (1954); Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38 (1928); Ferrill v. Southern Ry. Co., 493 S.W.2d 90 (Tenn. App. 1972); Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441 (1968); Clinchfield R. Co. v. Forbes, 57 Tenn. App. 174, 417 S.W.2d 210 (1966); Lyons v. Wagers, 55 Tenn. App. 667, 404 S.W.2d 270 (1966); French v. Fischer, 50 Tenn. App. 587, 362 S.W.2d 926 (1962); Yellow Cab Co. of Nashville v. Pewitt, 44 Tenn. App. 572, 316 S.W.2d 17 (1958). So, under our system of jury trials, the parties have the benefit, in the first instance, of the deliberations of the jury upon the facts, guided as to the law by the instruction of a trial judge learned in the law; next, on a motion for a new trial, or mero motu, the benefit of the deliberations of the circuit judge himself, upon the whole case, in determining whether the verdict of the jury shall stand; . . . .
I would adopt for Oklahoma the rationale of other jurisdictions which have held that an instruction containing the meaning of term aggravation of preexisting conditions should be given in all cases. Irving v. Bullock, 549 P.2d 1184 (Alaska 1976); Jacob v. Key System Transit Lines, 140 Cal.App.2d 357, 295 P.2d 569 (1956); Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441 (1968). I would not give prospective application to the announced change and requirement set out aforesaid because the only issue in the instant case was the question of damages.
When asked to determine whether a verdict should be set aside based on the amount of the damage award alone, the courts must consider the nature and extent of the plaintiff's injuries, the pain and suffering the plaintiff experienced, the expenses the plaintiff incurred as a result of the injuries, the plaintiff's loss of earning capacity as a result of the injuries, the impact the injuries have had on the plaintiff's enjoyment of life, and the plaintiff's age and life expectancy. Holt v. McCann, 58 Tenn. App. 248, 256, 429 S.W.2d 441, 445 (1968); Nash-Wilson Funeral Home, Inc. v. Greer, 57 Tenn. App. 191, 203, 417 S.W.2d 562, 567 (1966). When the conduct of a jury is challenged, the appellate courts begin with a presumption that juries are honest and conscientious and they have followed the instructions given to them.
When asked to determine whether a verdict should be set aside based on the amount of the damage award alone, the courts must consider the nature and extent of the plaintiffs injuries, the pain and suffering the plaintiff experienced, the expenses the plaintiff incurred as a result of the injuries, the plaintiffs loss of earning capacity as a result of the injuries, the impact the injuries have had on the plaintiffs enjoyment of life, and the plaintiffs age and life expectancy. Holt v. McCann, 58 Tenn.App. 248, 256, 429 S.W.2d 441, 445 (1968); Nash-Wilson Funeral Home, Inc. v. Greer; 57 Tenn.App. 191, 203, 417 S.W.2d 562, 567 (1966). See also, e.g., Manns v. Am. Airlines, Inc., 314 F.3d 968, 973 (8th Cir. 2003); Dougan v. Rossville Drainage Dist., 270 Kan. 468, 15 P.3d 338, 351 (2000); John Crane, Inc. v. Jones, 650 S.E.2d 851, 858 (Va. 2007).
When asked to determine whether a verdict should be set aside based on the amount of the damage award alone, the courts must consider the nature and extent of the plaintiff's injuries, the pain and suffering the plaintiff experienced, the expenses the plaintiff incurred as a result of the injuries, the plaintiff's loss of earning capacity as a result of the injuries, the impact the injuries have had on the plaintiff's enjoyment of life, and the plaintiff's age and life expectancy. Holt v. McCann, 58 Tenn. App. 248, 256, 429 S.W.2d 441, 445 (1968); Nash-Wilson Funeral Home, Inc. v. Greer, 57 Tenn. App. 191, 203, 417 S.W.2d 562, 567 (1966). See also, e.g., Manus v. Am. Airlines, Inc., 314 F.3d 968, 973 (8th Cir. 2004); Dougan v. Rossville Drainage Dist., 15 P.3d 338, 351 (Kan. 2000); John Crane, Inc. v. Jones, 650 S.E.2d 851, 858 (Va. 2007).
A plaintiff, therefore, is entitled to recover all damages which actually and necessarily follow the injury. See Owen v. Dix, 210 Ark. 562, 196 S.W.2d 913, 915 (1946); C.F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694, 696 (1937); Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 113 (1911); Becker v. D E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); Holt v. McCann, 58 Tenn. App. 248, 429 S.W.2d 441, 445 (1968); Brunson v. Strong, 17 Utah 2d 364, 412 P.2d 451, 453 (1966); Bennett v. Messick, 76 Wn.2d 474, 457 P.2d 609, 612 (1969). Having ascertained the extent of a tortfeasor's liability for aggravating a dormant condition, we must determine whether the trial court properly instructed the jury on this issue.
The Trial Judge and the jury below are best equipped to ascertain or place a value on the personal injury of mental suffering. See and compare Transports, Inc. v. Perry (1967) 220 Tenn. 57, 414 S.W.2d 1; Holt v. McCann (1968 E.S.) 58 Tenn. App. 248, 429 S.W.2d 441. Without prolonging more than necessary this already lengthy Opinion, we simply state that on the matter of the alleged excessiveness of the verdict for punitive damages of Mrs. Johnson and the verdict for Mr. Johnson for compensatory damages, it is our opinion that under the circumstances of the case the verdicts as adjusted by the Trial Judge are not so excessive as to shock the conscience of the Court nor do we believe the Trial Judge erred in granting the remittiturs that he did.