INTERSTATE LIFE and also ACCIDENT COMPANYv.William H. COX, Jr., Administrator the the legacy of Jennie crow Hirst.

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Court the Appeals the Tennessee, east Section.

March 29, 1965.

Certiorari denied November 1, 1965.

*81 Campbell & Campbell, Chattanooga, for plaintiff in error.

Atchley, Atchley & Cox, Chattanooga, because that defendant in error.

Certiorari refuse by can be fried Court November 1, 1965.

COOPER, Judge.

William H. Cox, Jr., together administrator, recovered a $6,000.00 judgment versus the *82 defendant, federal government Life and also Accident insurance money Company, as damages for the wrongful fatality of Jennie crow Hirst, who was hurt in a loss on a parking lot owned and also operated through the defendant.

The parking lot, which was situated on the southern side of east 8th Street directly behind the Interstate building in Chattanooga, Tennessee, to be of the self-service variety, and was used generally by employee of Interstate. Roughly 15 parking spaces to be designated together "in and out" spaces for usage by patients of medical professionals who leased office room in the federal government Building. Such patients were enabled to park 1 hour there is no charge, but were compelled to salary 10c because that each extr hour or component thereof. A parking attendant to be constantly on the many to collection parking charges and also to view that no one parked top top the lot who was no authorized to do so.

Jennie raven Hirst, in firm with her daughter, Mrs. Lillie Hudnall, parked top top the federal government lot ~ above the morning the December 1, 1961. Top top their return to the lot, Mrs. Hudnall and Mrs. Hirst stopped at the attendant"s office, payment the parking ticket and walked toward their automobile, through Mrs. Hudnall holding top top Mrs. Hirst"s arm to steady and also support her. ~ above nearing the automobile, Mrs. Hudnall relinquished her hold on Mrs. Hirst"s arm and also walked a action or two ahead to open the auto door. Within a few steps, Mrs. Hudnall heard her mother fall, turned, and also found her sitting in a water-filled hole. On examination, the was found that Mrs. Hirst"s appropriate thumb and also left leg to be broken. She passed away three work later.

Plaintiff, together administrator, charged the Mrs. Hirst"s injuries and also resulting death were due to the negligence of federal government (1) in failing to preserve the surface of the parking lot of in a sensibly safe condition, (2) in failing to warn Mrs. Hirst the the hazard attendant to the use of the lot, and also (3) in inviting Mrs. Hirst and others to usage the lot when it knew, or should have actually known, of the dangerous condition existing on the lot.

The defendant filed unique pleas denying the there were any kind of material defects in the parking lot, and averring that, if there were, they to be obvious and were well-known by Mrs. Hirst together she offered the parking many frequently. The defendant also took the place that Mrs. Hirst"s fall was the direct an outcome of her own negligence (1) in not keeping a appropriate lookout because that her very own safety, and (2) in go unaided, understanding that her feeling of sight, balance, and also general physical problem were not an excellent due to her advanced age. Together a corollary, the defendant additionally charged that Mrs. Hudnall was guilty that negligence which would avoid her share in any recovery for the wrongful death of her mother, in the she permitted her mother to go unaccompanied and unsupported. This last plea was struck on motion of plaintiff before trial.

After hear the evidence, the jury solved the worries in donate of the plaintiff and returned a verdict of $5,000.00 for the lose of Mrs. Hirst"s life and also $1,000.00 for medical and also funeral expense. The defendant perfected its appeal, directing its numerous assignments that error to the trial court"s refusal to straight a verdict, come alleged prejudicial remarks and also actions the the attempt court, to the court"s activity in highlight a portion of the unique plea, come the join of clinical testimony relating come the background of injury offered by the deceased and the cause of death, and to the lot of the verdict.

We have repeatedly stated that in reviewing a case on appeal, where the very nice is from a judgment based upon a jury"s verdict, we execute not weigh the evidence to determine the preponderance thereof, nor do we decide the credibility of witnesses. McAmis v. Carlisle, 42 Tenn. App. 195, 300 S.W.(2d) 59. Our evaluation is restricted to a decision of whether over there is any material proof to assistance the verdict, and also "it must be governed *83 through the preeminence safeguarding the constitutional appropriate of psychological by jury, which calls for us to take the strongest legitimate check out of every the proof to uphold the verdict, to i think the truth of every that has tendency to support it, come discard every to the contrary, and to permit all reasonable inferences come sustain the verdict." D.M. Rose & Co. V. Snyder, 185 Tenn. 499, 206 S.W.(2d) 897. And also if over there is material proof to support the verdict, it need to be affirmed. City that Chattanooga v. Ballew, 49 Tenn. App. 310, 354 S.W.(2d) 806, and numerous cases there cited.

It is undisputed that at the time of she fall, Mrs. Hirst to be an invitee and that the defendant owed her the duty to exercise reasonable treatment to keep the parking lot in a safe condition, consisting of the duty of remove or warning against a dangerous problem which it knew or, in the practice of reasonable care, should have actually known to exist. Good Atlantic and Pacific Tea Co. V. Lyle, 49 Tenn. App. 78, 351 S.W.(2d) 391; walls v. Lueking, 46 Tenn. App. 636, 642, 332 S.W.(2d) 692; Phillips v. Harvey Co., 196 Tenn. 174, 264 S.W.(2d) 810. The legal responsibility of the defendant, if any, is predicated top top a superior knowledge of a perilous condition on the premises and also defendant would not it is in liable because that injuries continual from threats that were obvious, reasonably obvious or too known come the invitee as to the defendant. Broome v. Parkview, Inc., 49 Tenn. App. 725, 359 S.W.(2d) 566; kendal Oil Co. V. Payne, 41 Tenn. App. 201, 293 S.W.(2d) 40; Illinois Cent. Ry. Co. V. Nichols, 173 Tenn. 602, 118 S.W.(2d) 213, 38 Am.Jur. Negligence § 97, pp. 757, 758. The invitee suspect all typical or apparent risks attendant top top the usage of the premises. Gargaro v. Kroger grocery store & Baking Co., 22 Tenn. App. 70, 118 S.W.(2d) 561.

In the current case, the record shows that defendant"s parking many was built in 1951, and has been supplied constantly since that time. The original construction required a deep earthen fill and the defendant provided "a rock binder course" as pavement to give the to fill time to settle. In 1953, the parking many was paved with asphalt. No repairs were made to the surface ar of the lot between the time the lot was paved and the work Mrs. Hirst fell.

Various employee of the defendant made regular weekly and also monthly inspections that the lot, and the attendant "covered the lot" nearly daily. Corley Young, defendant"s structure manager that inspected monthly, to be the just employee who admitted seeing depressions or holes in the surface of the lot. He testified that there were number of in the basic area where Mrs. Hirst fell, however stated that he walk not consider them hazardous. He explained the hole where Mrs. Hirst fell as being "a tire and fifty percent wide where cars had actually repeatedly remained in there"; and not much more than 1 come 1 1/4 customs deep.

The parking lot of attendant, Joe Goodson, who went to the assist of Mrs. Hirst immediately after her fall, testified the the hole to be 18 inches to 2 feet in diameter and from 1 1/2 to 2 customs in depth.

Mrs. Hudnall explained the hole together being "right in the heat of passing together you walk there between the cars" and that it was filled with "black, murky, greasy water or something, the color of the pavement around the hole." Mrs. Hudnall further described the hole as being about 25 customs long, 15 to 18 inches wide and 2 or 3 customs deep.

Several various other employees that the defendant testified as to the size and also shape of the hole whereby Mrs. Hirst fell, and also the fact that there was no break in the pavement.

From this evidence, us think the jury reasonably could find the Mrs. Hirst was brought about to autumn by stepping unexpectedly right into a feet or depression in the surface ar of defendant"s parking lot of "where cars had actually repeatedly been in there" showing the hole no to it is in of recent origin; that the hole to be so located that it to be reasonable to anticipate the the patrons of the lot would walk near, if no in it, in going to and from their *84 automobiles; that the hole was challenging to see under any circumstances together it was led with the same material as the rest of the lot and also there was no obvious break in the pavement; the on the occasion of Mrs. Hirst"s fall, the hole was filled with water the color of the neighboring pavement, which make it also more challenging to see. These findings would, in our opinion, justify and support the jury"s conclusion that the defendant knew or should have known the a dangerous problem existing top top its parking lot, and that it was guilty of negligence proximately causing the accident and resulting injuries to Mrs. Hirst in failing to correct the condition, or come warn Mrs. Hirst that its existence. Further, in watch of the evidence that the feet was difficult to view under the situations existing at the time of Mrs. Hirst"s fall, the jury reasonably might find that the plaintiff worked out reasonable treatment for her own safety.

Defendant strong insists that Mrs. Hirst was guilty that contributory negligence in go unaided over the parking lot, pointing come the reality that she was 84 years of age and also that Mrs. Hudnall usually held onto her arm to secure her as she walked. Many questions to be asked worrying Mrs. Hirst"s physical condition, but they all included up come the fact that "she remained in moderately good health for her age", and there to be no mirroring that she could not go unaided. Us think under the proof the issue of whether Mrs. Hirst to be guilty the negligence in walking unaided was for the jury no the court.

It is noted that defendant has assigned together error the psychological court"s action in striking indigenous the special pleas the corollary averment that Mrs. Hudnall was guilty of negligence which would bar her sharing in the restore in that she permitted her mother to go unaccompanied and unaided. We agree v the defendant that the plea need to not have been stricken; however, we cannot agree that such activity was prejudicial or materially affected the results of the trial in check out of the necessary finding that the jury, under the pleadings, evidence and also charge, the Mrs. Hirst was no guilty the negligence in go alone and also unaided. If it were not negligence for Mrs. Hirst to walk alone, it follows that it can not it is in negligence for she daughter to permit her to execute so.

The defendant contends additionally that the psychological court was guilty of prejudicial misconduct in continuous interrupting counsel and commenting on the proof so regarding lead the jury to believe that inquiries asked by defendant"s counsel to be improper, pointless, or repetitious. In assistance of its position, defendant has actually cited us to many excerpts native the document too plenty of to be duplicated into the opinion. We have read the excerpts in context and also have uncovered no basis because that holding that defendant remained in any means prejudiced through the plot of the psychological court.

The defendant insists, in two different assignments of error, the the trial court erred in admitting testimony of Dr. Fred E. Marsh relative (1) come the medical history given by Mrs. Hirst in the course of his check of she after the fall, and also (2) the reason of death.

"Where it shows up that the physician testifying was called by the injured human in his ordinary skilled capacity and for purposes of securing relief native pain and for clinical treatment, and there room no circumstances spreading suspicion top top the genuineness the the utterances, every statements of symptoms and also sufferings, whether previous or present, and also though entailing statements regarding the nature the the accident, if vital to diagnosis by the physician, may be testified to by him. * * *" 3 Jones on proof (2 Ed.) Sec. 1217, pp. 2234-2235, quoted through approval in Gulf Refining Co. V. Frazier, 15 Tenn. App. 662, 689. See also City of Maryville v. McConkey, 19 Tenn. App. 520, 90 S.W.(2d) 951, 955.

Likewise, the opinions that physicians regarding the reason of fatality are admitted *85 in proof where the opinions are established either on personal knowledge of the truth of the situation or top top a explain of the symptoms of the disease, or manner of dying, as comprehensive by others. If such opinions were no received, it would be difficult in many instances to understand the cause or way of death, especially in those instances where there to be no persons current at the time of the death, and also no autopsy to be performed. See usually Endowment location K.P. V. Steele, 108 Tenn. 624, 69 S.W. 336, 337, and also numerous instances there cited; nationwide Life and also Acc. Ins. Co. V. Follett, 168 Tenn. 647, 80 S.W.(2d) 92; Act-o-Lane Gas business Co. V. Hall, 35 Tenn. App. 500, 248 S.W.(2d) 398, 404.

The record in this situation shows Dr. Marsh had treated Mrs. Hirst regularly since 1941; the he examined she minutes prior to her fall and again instantly after the fall; the he gave her emergency treatment and referred she to one orthopedic physician in the interstate Building; however, Dr. Marsh ongoing to view Mrs. Hirst while she remained in the hospital and also was dubbed by the attending nurse instantly upon the fatality of Mrs. Hirst.

Under this circumstances, and also in the irradiate of the above authorities, we discover no error in the admission of Dr. Marsh"s testimony.

The defendant next insists that the verdict was excessive and also was based on speculation and conjecture.

As heretofore noted, the jury reverted two separate awards $5,000.00 for the wrongful fatality of Mrs. Hirst, and $1,000.00 because that medical and funeral costs though the 2 awards were included in a solitary judgment for $6,000.00.

"Where a person"s death is caused by the wrongful act, fault, or omission the another, and also suit is brought for loss * * *, the party suing shall, if licensed has been granted to damages, deserve to recover for the mental and physical suffering, ns of time, and also necessary expenses resulting come the deceased from the personal injuries, and also the loss resulting come the parties because that whose use and also benefit the appropriate of activity survives * * *." T.C.A. 20-614. The latter damages embrace the pecuniary worth of the life that the deceased, to be determined upon the consideration of her expectations of life, she age, condition of health and strength, capacity, if any type of for labor and for earning money through ability in any kind of art, trade, profession, occupation, or business and also her an individual habits as to sobriety and also industry. Davidson Benedict Co. V. Severson, 109 Tenn. 572, 72 S.W. 967; Memphis Street Railway agency v. Cooper, 203 Tenn. 425, 313 S.W.(2d) 444.

As heretofore noted, Mrs. Hirst received a damaged right thumb and also a broken left foot in the fall. The technique of treating the thumb is not listed in the record; however, it is displayed that the broken leg was treated by placing the in a long-leg cast, which prolonged from the ankle approximately the thigh. The record additional shows the Mrs. Hirst was "awful nervous ~ the fall." Later, that was detailed that Mrs. Hirst"s blood pressure had dropped, and her breathing was becoming shallow. 3 days later she ended up being cyanotic and also expired. The cause of fatality was offered as a pulmonary embolism resulting from the fractures.

Dr. Marsh declared that prior to the fall, Mrs. Hirst remained in moderately great health for a human being 84 year of age. The mortality tables to be then introduced showing the life expectancy of a white female, 84 years of age, to be 5.14 years.

Mrs. Hirst"s just income included a $50.00 monthly award from the rail Retirement Board, which to be not enough to provide her with the necessities that life. This pension terminated at her death.

The defendant argues that as there was no straight evidence that Mrs. Hirst endured pain from her injuries, recovery need to be minimal to the pecuniary worth of her life and also that the compensation of $5,000.00 to be excessive. *86 us cannot agree through either insistence. We think pain and also suffering reasonably could be inferred indigenous the really nature of the injury, the application and wearing the the cast, Mrs. Hirst"s extreme nervousness ~ the fall, and the fact that she died from one embolism. But, even if the pecuniary worth of life to be the only measure of damage applicable under the truth of this case, us think the pin money of $5,000.00 as loss for the wrongful death of Mrs. Hirst was no excessive.

As come the award of $1,000.00 for medical and also funeral expenses, we think that is too much by $227.46 as the undisputed proof fixes the costs incurred as being $722.54. To make the referee conform v the proof, we suggest a remittitur of $227.46.

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If the remittitur suggested is accepted by the plaintiff, the judgment of the Circuit Court, for this reason reduced, will certainly be affirmed. If not, this cause will it is in reversed and also remanded because that a brand-new trial.