FILED

July 15, 1998

Cecil W. Crowson

Appellate Court Clerk

ROSALYNN C. DONOHO, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9802-CV-00070

v. )

) Wilson Circuit

WILLIAM J. DONOHO, JR., ) No. 8887

)

Defendant/Appellant. )

)

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, Tennessee 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
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OPINION

In this case defendant appeals an adverse jury verdict in a personal

injury action.

Appellant and appellee were married in the mid-seventies and divorced

in 1983. They reconciled after their divorce and had been 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, William J. Donoho, Jr. physically

assaulted Rosalynn C. Donoho. After a one day trial, a jury assessed $85,000

compensatory damages and $15,000 punitive damages against Mr. Donoho. His

motion for a new trial or, in the alternative, for a remittitur was overruled by the

trial court and he appealed.

The issues presented for review as stated by the appellant are:

1. Whether the trial court erred in denying

Defendant's Motion for New Trial, or in the alternative, a

Remittitur, and in approving the jury verdict for

compensatory damages in the amount of Eighty-five

Thousand ($ 85,000.00) Dollars when the Plaintiff offered

proof of only Eight Hundred, Nineteen ($ 819.00) Dollars in

medical damages?

2. Whether the trial court committed reversible

error in failing to exclude improper evidence of the

Defendant's character?

3. Whether the trial court committed reversible

error in admitting evidence of the Plaintiff's reputation

without proper foundation?

Appellant does not take issue with the $15,000 punitive damage award

but asserts only that the $85,000 compensatory damage award should be

reversed.

Appellant does not assert that the verdict of the jury is a product of

passion, prejudice or caprice. The issue asserted is that the compensatory

damage award is above the range of reasonableness and, as such, is not supported

by the evidence.
-3-

In the case at bar, the trial court has approved the verdict of the jury.

In Ellis v. White Freightliner Corp., the Supreme Court 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 reason why that rule should not have

the same effect when that approval includes the amount of

the award. That action by the trial judge means that he has

accredited the testimony of the witnesses on the issue of

damages and has evaluated the evidence as supporting the

amount awarded. Nevertheless, when the question of

remittitur is raised, the Court of Appeals has the duty to

review the proof of damages and the authority to reduce an

excessive award. But when the trial judge has approved the

verdict, the review in the Court of Appeals is subject to the

rule that if there is any material evidence to support the

award, it should not be disturbed.

We affirm these guidelines and caveats in Southern R. R.

Co. v. Sloan, supra :

"There is no exact yardstick, or measurement,

which this court may use as a guide to determine the

size of verdicts which would should be permitted to

stand in cases of this kind. Each case must depend

upon its own facts and the test to be applied by us is

not what amount the members of the court would

have awarded had they been on the jury, or what they,

as an appellate court, think should have been

awarded, but whether the verdict is patently

excessive. The amount of damages awarded in

similar cases is persuasive but not conclusive, and, in

evaluating the award in other cases, we should note

the date of the award, and take into consideration

inflation and the reduced value of the individual

dollar." 56 Tenn. App. at 392-393, 407 S.W.2d at

211.

We also reiterate that a finding of excessiveness

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 distinguished from Smith v. Shelton, supra, all

of the evidence in the record that tends to support the amount

of the verdict should be given full faith and credit upon

appellate review.

Ellis v. White Freightliner Corp., 603 S.W.2d 125, 129 (Tenn.1980). Hence, the

only question for this court to consider is whether there is material evidence to

support the award below. 
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The evidence below showed Mrs. Donoho was physically assaulted by

Mr. Donoho. The results of his assault upon her are graphically illustrated by the

record. The photographic evidence revealed extensive facial and bodily injury.

Both Mrs. Donoho and lay witnesses testified that she suffers great embarrassment, humiliation and severe emotional distress as a result of the assault.

While it is true that the only medical bills in evidence were $819.00 paid to

Donleson Hospital; Mrs. Donoho further testified without objection from the

defendant that she had required medical and psychological treatment in Arizona

and that she had been diagnosed as suffering from post-traumatic stress

syndrome. She was compelled to take anti-depressant medications. The

evidence indicates that Mrs. Donoho was a professional, career-oriented woman

and very successful in her business. After the February 20, 1993 incident she

was forced to live in a motel for five weeks, too depressed, embarrassed and

humiliated to go to work during this period or to eat out because of her injuries.

The evidence concerning the damages suffered by Mrs. Donoho ismore

than sufficient to support the verdict. The $85,000 award is not beyond the range

of reasonableness. It is true that the evidence concerning Mrs. Donoho's

treatment in Arizona was not supported by medical testimony. Her own

testimony, admitted in evidence without objection by the defendant, is adequate

to support the jury's verdict.

Appellant further objected to testimony asserting that the defendant

neglected his children by a previous marriage until they were in their mid-teens

and allowed his minor son, Jay, to drink alcohol and use drugs in their home.

This evidence came in during the testimony of Mrs. Donoho and further during

the testimony of Mr. Donoho and his son Jay. It generally established some of

the factors leading up to the explosive incident of February 20, 1993. 

Appellant further 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 accomplished. For the purposes offered, the evidence was
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admissible. Even if the admissibility were questionable, it cannot be said that

such evidence, more probably than not, affected the judgment. See Tenn. R.

App. P. 36(b). In this respect therefore, the jury verdict stands.

The judgment of the trial court is in all respects affirmed. The case is

remanded to the trial court for further proceedings. 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