
    Wilfred M. BATES, Plaintiff-Appellee, v. John D. JACKSON, Defendant-Appellant.
    Supreme Court of Tennessee.
    Oct. 12, 1982.
    
      Robert M. Johnson, J. Richard Buchigna-ni, Memphis, for defendant-appellant.
    Frierson M. Graves, Jr., Memphis, for plaintiff-appellee.
   BROCK, Justice.

This is an action for personal injuries arising out of an automobile collision. The jury found in favor of the plaintiff and awarded to him the sum of $1,350.00, representing damage to his automobile, and damages for personal injuries in the amount of $85,200.00. On motion for a new trial, the trial judge remitted the property damages to the sum of $480.63, being the amount stipulated by the parties as the damage to the plaintiff’s automobile that remained owing, the defendant having already paid a considerable sum toward defraying such damages; the trial judge also remitted the personal injury damages from $85,200.00 to the sum of $50,000.00. The plaintiff accepted both elements of the remittitur under protest and appealed to the Court of Appeals. The Court of Appeals affirmed the remittitur of property damages but reversed the remittitur of personal injury damages and restored the original verdict of $85,200.00 for personal injury damages. The defendant has appealed to this Court, asserting that the Court of Appeals erred in restoring the remitted personal injury damages.

Our remittitur statute is as follows:

“(a) In all jury trials had in civil actions, after the verdict has been rendered, and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party should be reduced, and a remittitur is suggested by him on that account, with the proviso that in case the party in whose favor the verdict has been rendered refuses to make the remittitur a new trial will be awarded, the party in whose favor such verdict has been rendered may make such remittitur under protest, and appeal from the action of the trial judge to the Court of Appeals.
(b) If, in the opinion of said Court of Appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the Court of Appeals for the full amount originally awarded by the jury in the trial court.” T.C.A., § 20-10-102.

Recently, we said, in Smith v. Shelton, Tenn., 569 S.W.2d 421 (1978), that

“... appellate review of a trial judge’s actions in making use of remittitur or additur resolves into a determination of whether or not the jury verdict is within the range of reasonableness established by the credible proof. The upper and lower liniits of that range must be determined by a reasoned examination of the credible proof of damages and all factors that have bearing upon the amount of recovery .... Throughout the review, the jury’s determination should be given primary weight and the trial judge’s secondary weight.
“If it is determined that the jury’s verdict is within the range of reasonableness or that both the jury’s and the trial judge’s awards are within that range, the appellate court must restore the jury verdict. If only the trial judge’s award is within the range, it must be affirmed. If neither are within the range of reasonableness, the Court of Appeals should make appropriate use of remittitur and render judgment within the range of reasonableness based upon the credible proof of damages.” 569 S.W.2d at 427.

Later, in Foster v. Amcon Intern., Inc., Tenn., 621 S.W.2d 142 (1981) we described the criterion for appellate review of a trial judge’s remittitur as follows:

“Henceforth the standard of appellate review will be simply to ascertain whether the trial judge’s actions in increasing or decreasing a verdict were justified, giving due credit to the jury’s decision on the credibility of the witnesses and that of the trial judge in his capacity as thirteenth juror.” 621 S.W.2d at 145.

Moreover, Foster, supra, modified the instruction of Shelton, supra, as follows:

“We therefore modify Shelton to the extent that trial judges may suggest adjustments when the jury verdict is within the range of reasonableness, as an alternative to the practice of granting a new trial, if they are of the opinion that the jury-verdict is not adequate. T.C.A. § 20-10-101. See also, T.C.A., § 20-10-102. In so holding, we do not intend to in any way alter our position that in personal injury cases the amount of compensation is primarily for the jury, and next to the jury, the most competent person to pass on the matter is the trial judge.” [Emphasis in original.] 621 S.W.2d at 147.

Although the Court in Foster was dealing with an additur, the reference to T.C.A., § 20-10-102, in the quoted excerpt shows that what was there said applies equally to review of remittiturs of verdicts found to be within the range of reasonableness.

In suggesting the remittitur of damages for personal injuries in this case, the trial judge made clear his opinion that the verdict of $85,200.00 for personal injury damages exceeded the upper limit of the range of reasonableness established by the credible proof in this case. However, the Court of Appeals in restoring the remitted damages, concluded that both the $50,000.00 remitted verdict and the $85,200.00 verdict of the jury were within the range of reasonableness established by the credible proof. In reaching this conclusion the Court of Appeals noted:

“Plaintiff’s medical expenses were $4,979.34 with the largest bill ($4,582.00) being for continuing treatment by an osteopath. The medical testimony as to the percentage of permanent disability ranged from zero percent (orthopedic surgeon) to 10 to 15 percent (orthopedic surgeon) to 60 or more percent (osteopath). Prior to his injury plaintiff worked as a college industrial arts teacher. After the injury plaintiff complained of total disability and inability to return to the teaching profession. The contested issue below was the actual extent of plaintiff’s back injury. Defendant sought to show that plaintiff had exaggerated his injury, was not injured as badly as plaintiff alleged and had not made adequate efforts to speed recovery....
“It should be noted that this case is not one where injuries are undisputed yet their monetary value is contested. Here we have a case where both the existence of the injuries and their monetary value are highly disputed.
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“As far as we are able to tell from a cold record, the plaintiff’s proof is just as credible as the defendants’, that is to say, reasonable men could believe either version. It is our understanding of the holding of Smith v. Shelton, supra, that when such is the case, we are bound to reinstate the jury verdict. Accordingly, we are constrained to set aside the remittitur and reinstate the jury verdict as to personal injuries.”

Our review of the evidence results in our conclusion that the Court of Appeals was correct in concluding that both the verdict of $85,200.00 and the remitted judgment of $50,000.00 are within the range of reasonableness established by the credible proof in this ease. However, it does not follow that the Court of Appeals was bound to restore the award made by the jury. Although that award was within the range of reasonableness, the appellate court should have determined from a review of the evidence “whether the trial judge’s [action] in . . . decreasing the verdict [was] justified, giving due credit to the jury’s decision on the credibility of the witnesses and that of the trial judge in his capacity as thirteenth juror.” See, Foster, supra, 621 S.W.2d at 145; T.C.A., § 20-10-102(b). The Court of Appeals is not to be faulted in this respect, however, because it was following the instruction of Shelton without the modification of Shelton made by Foster which had not been released at the time the Court of Appeals decided this case.

Our own review of the record convinces us that the action of the trial judge in suggesting the remittur was justified in his capacity as thirteenth juror. The judgment of the Court of Appeals is, therefore, reversed and that of the trial court is affirmed. Costs incurred on appeal are taxed against the plaintiff and surety.

COOPER, HARBISON and DROWOTA, JJ., concur.

FONES, C. J., not participating.  