# FILED

July 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk ROSALYNN C. DONOHO, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9802-CV- 00070 v. ) ) Wilson Circuit WILLIAM J. DONOHO, JR., ) No. 8887 ) Defendant/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE

THE HONORABLE BOBBY CAPERS, JUDGE

HUGH GREEN 100 Public Square Lebanon, Tennes see 37087 ATTORNEY FOR PLAINTIFF/APPELLEE

JAMES C. McBROOM C. EDWARD SCUDDER , JR. 211 Printers Alley

Building, Suite 502 Nashville, Tennessee 37201 ATTORNEYS FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

In this case defendant appea ls an a dverse jury verdict in a personal injury action.
Appellant and appellee were married in the mid-seventies and divorced in 1983. They re

conciled after the

ir divorce and ha

d be en living together for approximately

five years at the time of the incident of February 20, 1993 which precipitated the law suit at bar. On that day, Willia

m J. Donoho, Jr

. physically assaulted Rosa lynn C. Donoho. After a one day trial,

a jury assessed $85,000 compensatory

damages and $15, 000 punitive damag es against Mr. Donoho. His motion for a new trial or, i

n the alternative,

for a remitti

tur was overruled by

the trial court and he a

ppealed.
The issues presented for review as stated by the appellant are: 1. Whether

the trial courterre d in denying Defendant's Motion f

o r New Trial, or in the alternat ive, a Remittitur, and in approving the j ury verdict for compensatory

damages i

n the amount of E

ighty-five Thousand ($ 8 5,00 0.00) Dollars when the Plaintiff offered proof of only Eight

Hundred, Nineteen ($ 819.00) Dollars in medical dam

ages? 2. Whethe

r t he trial court com

mitted revers

ible error in failing to exclude improper evid ence of the Defendant's character? 3. Whether

the trial cou

rt committed

reversible err orin admitting evide nce of the Plaintif

f's reputation without proper founda

tion? Appellant does not take issue with th e $15,000 punitive damage award but asserts only tha

t the $85 ,0 00 compensatory damage awar

d should be reversed.
Appellant

does not assert that t

he verdict of the j ur y is a product of passion, preju d ice or caprice. The issue asserted is that the compensatory damage award is above the

range of reasonabl

eness and, as such, is not supported by the evidence.-3- In the case at bar, the trial court has a pproved the verdict of

the jury

.

In Ellis v. White Freightl iner Corp., the Supreme C ourt said: [6] The trial judge ' s approval of a jury verdict invokes the material evidence

rule with respect to all other

issues of fact and we know of no re

ason why that rul

e should not have the same effec

t when tha

t app roval includes the am ount of the award. That action by the trial judge means that h e has accredited th e testimony of the witne sses on the issue of damages and has evaluated the evidence as s upport ing the amount awarded. Nevertheless, when the q uesti on of remittitur is r ai sed, the Court of A ppeals has the duty

to review the proof of damages and the a uthority to reduce an excessive award. But whe

n the trial judge has approved the verdict, the review in the Court of Appeal s is s ubject to the rule that if there is any material evidence to support the award, it should not

be disturbed. We affirm these

guidelines and cavea

ts in Southern R. R. Co. v. Sloan, supra : "T her e is no exact yard

stick, or mea

surement, which this court m

ay use as a guide

to determine

the size of verdicts which w

ould s ho uld be permitte

d to standin cases of this kind.Each case m ust depend upon its own facts and the test to be applied by

us is not w hat am ount the mem

bers of the court w

ould have awarded had they been on the j ury, or wh at they, as an appellate court, think should have been awarded, b u t whether the verd ict is patently excessive. The am ount of damages a warded in similar cases is persuasive

but not conclusive, and,

in evaluatingthe award in other cases , we s hould note the da te of the award, a nd take into considera

tion inflation and the reduced valu

e of the i ndividual dollar." 56 Tenn. App. a t 392-393, 407 S.W.2d at 211. We also reiterate th

at a finding of exce ssiveness necessarily

involves a determination of the dollar figure that represents the point at which excessiveness begins, and that figure is the upper limit of the range of reasonableness. In this case, as dis ting uish ed fro m Smith v. Shelton, supra , all of the evidence in the record that tends to support the amount of the verdict should be g iven full fait

h and credit upon appellate review. Ellis v. White Freight

liner Corp. , 603 S.W.2d 125, 129 (Tenn.1980). H

ence, the only question for t

his court to consider i s whether there is material evi

dence to support the award bel ow.-4- The evidence below show ed Mrs. Donoho was physi cally assaulted by Mr. Donoho. The resul

ts of his assault upon her are graphically illustratedby the record. The photographic eviden ce revea led ext ensive facial a nd bod ily inju ry. Both Mrs. Donoho and lay witnesses testified that she suffers gre at embarrassment,humiliation and severe emotional distress as a result of the a ssault. W hile it is true that the only medical bills in

evidence were $81 9.00 paid to Donleson Hospital; Mrs. Donoho further testif ied without object

ion from the defendant that shehad required medical and psychological treatment in A

rizona and that she had been diagnosed as suffering fr om post -traumatic st ress syndrome. She was compe lled to take anti-de pressant medic ations. The evidence indicates that Mrs. Donoho was a professional, career-oriented woman and very successf

ul in her bu siness. After the Februa ry 20, 1993 incide

nt she
was forced to live in a m otel f or five weeks, too depres sed, embarr assed and humiliatedto go to work during this period or to eatout because of her i njuries.

The evidence concern ing the damages s uffered by Mr

s. Donoho i s mor

e than sufficient

to support the verdict.The $85,000 awar d is not beyond the r

ange of reasonableness. I

t is true that the evi

dence con cer ning Mrs. Donoho's treatment in Arizona was not sup ported by medical testimony. Her own testimo ny, admitted

in evidence without objection by the defendant, is a

dequate to support the jury 's verdict.
Ap pella ntfurther objecte d to testimony

asserting that the de

fendant neglected his children by a previous marr

iage until they w

ere in their

mid-teens and allowed his min

or son, Jay, to

drink alcohol and use

drug s in their home. This evide nce ca me in during the testim ony of Mrs. Donoho and f urther during the testimony of Mr. Donoho and his son Jay. It generally established some of the factors leading up to the explosi ve incident of Febru ary 20, 1993.
Appellant fu rther asserts that the trial court erred in admitting an advertising

brochure depicting the plaintiff, along with other professionals in her field of endeavor . This document is cumulative to the testimony of other witnesses who testified to the effect that Mrs. Donoho was a hard worker and professionally

accomplishe

d. For the purposes offered, the evidence was-5-

admissible. Even if the adm issibility were

questionable, it ca

nnot b e said that such evidence, more probably than n ot, affected the judgment. See Tenn. R. App. P. 36(b). In this respect ther efore, the jur

y verdict stands.

The judgment of the

trial court is in all

respects affirm

ed. The case is remanded to the trial court f

or further proceedi

ngs. The costs

of this appeal are assessed against appellant, William J. Donoho, Jr.

________________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE