GLENN STILES, d/b/a SMITH JEWELERS, Appellants/Cross-Appellees, v. DAN
WALTERS, Individually, and ROLLINS PROTECTIVE SERVICES, CO., INC.,
Appellees/Cross-Appellants.

Court of Appeals of Tennessee, Western Section at Jackson-1984 Tenn. App.
LEXIS 2812-April 13, 1984

PRIOR HISTORY: TIPTON LAW

HON. HERMAN REVIERE Judge

DISPOSITION: AFFIRMED
CASE SUMMARY

PROCEDURAL POSTURE: Defendants, salesman and security company, sought review
of a judgment from the trial court (Tennessee) in favor of plaintiff
customer with respect to his action for fraudulent misrepresentation,
negligent misrepresentation, breach of express and implied warranty, and
negligent installation of a burglar alarm system. The customer sought review
of the remittitur suggested on the punitive damage award against the
security company.


OVERVIEW: The customer purchased a burglar alarm system for his jewelry
store from the security company. Burglars cut the exposed telephone line
completely disarming the burglar alarm system. The customer brought an
action against the salesman and the security company for fraudulent
misrepresentation, negligent misrepresentation, breach of express and
implied warranty, and negligent installation. The jury found in favor of the
customer and awarded compensatory and punitive damages. The trial court
remitted the punitive damage award. On appeal, the court affirmed the trial
court's judgment. The court ruled that the evidence was sufficient for the
jury to return a verdict against the salesman. The court held that an
exculpatory clause in the sales contract that limited liability could not
apply to the security company's gross negligence as a matter of public
policy. The court found that the foreseeability of the third party's
criminal acts was clear. The court also found that the issue of punitive
damages was properly submitted to the jury because gross negligence was
proven. The court determined that the trial court was justified in
decreasing the punitive damage award.


OUTCOME: The court affirmed the judgment of the trial court in favor of the
customer with respect to his action against the salesman and the security
company for fraudulent misrepresentation, negligent misrepresentation,
breach of express and implied warranty, and negligent installation of a
burglar alarm system.


COUNSEL: FOR APPELLANTS/CROSS-APPELLEES: J. HOUSTON GORDON, and MICHAEL W.
WHITAKER, of Covington, Tenn.

FOR APPELLEES/CROSS-APPELLANTS: Walters: WALKER T. TIPTON, of Covington,
Tenn.

Rollins: HERBERT E. GERSON, and DANIEL ADOMITIS, of Memphis, Tenn.

JUDGES: Summers, Special Judge wrote the opinion. NEARN, P.J., W.S. TOMLIN,
J.

OPINIONBY: Summers

OPINION: SUMMERS, Special Judge

The plaintiff, Glenn Stiles, d/b/a Smith Jewelers, sued Dan Walters, an
individual, and Rollins Protective Services Company, a corporation, for
fraudulent misrepresentation, negligent misrepresentation, breach of express
and implied warranty, and negligent installation of a burglar alarm system
placed in Stiles' jewelry store. The plaintiff sought $250,000.00 in
compensatory damages and an equal amount in punitive damages.

The jury found in favor of Stiles against Walters and awarded compensatory
damages in the amount of $25,000.00. The jury also found against Rollins and
awarded compensatory damages in the amount of $80,000.00 and punitive
damages in the amount of $150,000.00. The court suggested a remittitur on
the punitive damage award against Rollins [*2] in the sum of $125,000.00
and on the compensatory damage award against Walters in the sum of
$10,000.00. From the action of the Court, the plaintiff and both defendants
filed their notice of appeal and have brought their many issues to this
court for review.

Glen Stiles, owner of Smith Jewelers, moved "back" to Covington, Tennessee
in the latter part of the nineteen seventies and purchased the jewelry store
from a W. O. Smith. Stiles and his wife operated the business for a year or
so, but were finally joined by a son who is still with the establishment.

Dan Walters, one of the defendants, was a salesman for 15 years prior to his
association with Rollins. His training had been in retail management, having
been employed by J.C. Penney Co., Sears Roebuck and others.

Rollins Protective Services Company, the corporate defendant, is the
undisputed leader in the selling and servicing of "security systems." Their
specific interest is placed on the prevention of burglaries, and they have
been in business for more than seventy years. The Rollins stock is traded on
the New York Stock Exchange. They advertise their wares through television,
written advertisements and salespeople [*3] and state in their
advertisement that: "Rollins is the world's leader in residential security
and the only company that has a fully serviced economical wireless security
system."

In July 1980, Walters contacted Rollins seeking employment. In September of
that year, he was hired as a branch manager in training. He received most of
his instruction in Memphis but did attend a seminar in Kansas City for a
period of three or four days along with other newly hired employees.

While working in the Covington area, Walters contacted Stiles on October 27,
1980 in regard to the sale or installation of a burglar alarm system. While
in the Stiles' jewelry store, he walked over the building and utilized a
checklist provided by Rollins. This checklist was to assist him in
determining the type of equipment that might be needed to provide burglar
alarm protection for the store. After Walters had completed his survey, he
recommended a very sophisticated system which had a cost factor in excess of
$2,000.00.

Being somewhat cost conscious, Stiles told Walters that the $2,000.00 figure
was too much. Walters then suggested that they consider a new product that
had just become available in the [*4] Memphis area. The new device was a
microwave intrusion detector, commonly known as Solfan. The unit was
selected by Walters because Stiles wanted to get the price down and Walters
was under the impression that the Solfan unit would take the place of a lot
of devices that he had originally suggested in his original burglar alarm
system estimate.

The Solfan unit was specifically designed to cover an area up to 36 feet
wide and 100 feet in depth. This should have been ample coverage for Stiles
because his building was only 75 feet in depth. Also, the instructions that
Walters had received from Rollins in connection with the capabilities of the
Solfan unit was that it would penetrate a 1/4 to 3/8 inch sheetrock or
paneled wall if they were laid on 2 X 4 inch studs. Walters related this
information to Stiles but it was actually misleading because the Solfan unit
"could be" contained by a standard four-inch drywall, and would be "totally"
contained by a concrete masonry or brick enclosure.

Walters made another call on Stiles on November 3, 1980. This time he
informed Stiles that he had sold a unit to a competitor. Other negotiations
followed but on that date, Stiles signed the [*5] necessary instruments to
have the Solfan system installed. The list of equipment Walters had compiled
for Stiles for the security program at Stiles' store was examined for
accuracy by the branch manager for Rollins. This examination was made to
determine if it would give adequate protection for the premises as they
appeared from the sketch prepared by Walters during his initial survey.

The next day, November 4, 1980, the installation was made. Walters returned
to Stiles' establishment in order to check the list of items which had been
delivered as per agreement. Walters left before the installation was
completed.

Walters made one more contact with Stiles between the date of installation
and his date of resignation. His employment with Rollins ended on November
18, 1980.

The sophisticated burglar alarm system (Solfan) was installed by a
technician employed by Rollins. The unit was attached to a single telephone
line, and this telephone line was the sole method of communications between
the Solfan unit and the informing agent should a disturbance occur in the
jewelry store. There were other precautions offered by Rollins that would
have protected the establishment should [*6] there be "telephone line
interferences" caused by a burglar, but Walters did not inform Stiles of
these precautionary devices because Walters had never been informed by
Rollins that these precautionary devices existed.

Bruce Herron, the master technician for Rollins Protective Service, who
installed the system was well aware that Rollins marketed and sold modular
units, reverse current units, direct line or cutline systems, but never
discussed with Stiles that these "backup" precautions were available. Bruce
Herron was not concerned enough to check to determine where the telephone
lines were located and whether or not they were hidden. In his own words, he
stated that those facts "were no concern of mine."

The system sold Stiles was not a modular system. If it had been, it would
have set of an alarm at the police station if the telephone line was ever
disturbed.

Sometime during the evening of December 11, 1980, or the early morning of
December 12, 1980, burglars opened a hold in the ground floor of the Stiles'
building. They came up from the basement and opened the safe and several
display cases. The entry of the burglars was made after they had severed the
telephone line [*7] which was in plain view. This cutting of the telephone
line completely disarmed the Solfan system and allowed the criminal act to
be performed with no interference by the police or Stiles.

Stiles filed his lawsuit against Walters and Rollins, and the jury returned
a plaintiff's verdict. Since the Court suggested a remittitur as to both
defendants, all parties have appealed.

We will first consider the position of Dan Walters, the salesman for Rollins
who made the initial contact with Stiles and sold the burglar alarm system.

At the close of the plaintiff's proof and after a motion for a directed
verdict on behalf of Walters was overruled, the Court limited the issues as
to him to the question of whether or not he had committed an actual fraud or
misrepresentation in the sale of the burglar alarm system to Stiles.

The most important issue presented by Walters for review by this Court is:

Whether the Court erred in failing to sustain the defendant's (Walters')
motion for a directed verdict, made at the conclusion of the plaintiff's
proof and at the conclusion of all the proof.

In order for the plaintiff to be successful in his action against Walters it
was necessary [*8] for him to prove certain essential elements. That which
is needed to prove intentional misrepresentation of a material fact is set
out in the well reasoned case of Haynes v. Cumberland Builders, Inc., 546
S.W.2d 228 (Tenn.App. 1976). In Haynes, supra, Justice Drowota, writing for
the Court, stated:

When a party intentionally misrepresents a material fact or produces a false
impression in order to mislead another or to obtain an undue advantage over
him, there is a positive fraud. Rose v. Foutch, 4 Tenn. App. 495 (1926). The
representation must have been made with knowledge of its falsity and with a
fraudulent intent. Shwab v. Walters, 147 Tenn. 638, 251 S.W. 42 (1922); Vela
v. Beard, 59 Tenn.App. 544, 442 S.W.2d 644 (1968). The representation must
have been to an existing fact which is material and the plaintiff must have
reasonably relied upon that representation to his injury. Whitson v. Gray,
40 Tenn. 441 (1859); Dozier v. Hawthorne Development Co., 37 Tenn.App. 279,
262 S.W2d 705 (1953).

In considering a motion for a directed verdict, if there is any material
evidence to support a verdict by the jury in favor of the party opposing the
motion, [*9] the motion must be denied. City of Columbia v. C.F.W.
Construction Co., 557 S.W.2d 734, 740 (Tenn. 1977).

We have reviewed the record, and we are of the opinion that there is
material to support the jury verdict in favor of Stiles against Walters.
Stiles testified that he told Walters what he wanted to protect, that he
wanted to protect the safe more than anything else. Stiles further testified
that he was relying upon Walters in protecting the safe and he told him that
he was relying on him. Stiles further testified that Walters told him that
the microwave unit, which was being installed at the front of the store,
would protect the whole store and would definitely protect the safe. In
addition, Stiles stated that Walters never mentioned any limitation of the
unit to be installed and told him that he did not have to worry about the
safe.

Without going into the record further, we think this testimony was
sufficient for the jury to return a verdict for Stiles against Walters.
Accordingly, this issue is found to be without merit.

Rollins Protective Services Company has presented many issues for
consideration by this Court. They are:

1. Did the trial, court err in [*10] failing to grant Rollins' motion for
judgment N.O.V. in light of:

A. the $250.00 limitation of liability provision agreed upon by the parties
in their contract, which the court refused to enforce?

B. The criminal intervening acts of a third party who burglarized
plaintiff's store and thus proximately caused plaintiff's alleged damages?

II. Did the trial court err in failing to grant Rollins a new trial in light
of:

A. The court's improper exclusion of Rollins' expert proof on damages on the
ground that the court could not recall that a proper foundation had been
laid for the hypothetical question to the expert, when the transcript now
establishes conclusively that such a foundation was laid by the plaintiff's
own testimony:

B. The court's refusal to instruct the jury to disregard the closing
argument of plaintiff's attorney directed to the tort of outrageous conduct,
where the court ruled that there was insufficient evidence in the record to
support such a finding?

C. The court's refusal to submit the complex issues in this case to the jury
in the form of special interrogatories, so as to avoid the type of jury
confusion that in fact occurred?

III. Did the [*11] trial court err in failing to completely remit the award
of punitive damages in this suit arising out of a contract between two
commercial entities, or in the alternative, was the trial court justified in
at least partially remitting the award of punitive damages?

The first issue presented for review by Rollins is that the contract between
the parties contained an exculpatory clause which limited liability. That
clause is as follows:

The parties agree that if loss or damage should result from the failure or
performance of operation or from defective performance of operation or from
improper installation or servicing of the system that Rollins' liability, if
any, for the loss or damages thus sustained shall be limited to a sum equal
to ten (10%) percent of one year's service charge or $250 whichever is
greater, and that the provisions of this paragraph shall apply if loss or
damage, irrespective of cause or origin, results directly or indirectly to
persons or property from the performance or nonperformance of the
obligations imposed by this agreement or from negligence, active or
otherwise of Rollins, its agents or employees.

Rollins is relying on the applicability [*12] of that $250,00 limitation
and contends that the Court should have enforced the provisions thereof. We
must at the beginning hold that the attempted limitation cannot, as a matter
of law apply to the gross negligence of Rollins as a matter of public policy
in this state. The citations relied on by Rollins do not go beyond the
issues of simple negligence. The jury was charged and found Rollins to be
guilty of gross negligence, and rightfully so. The installation of the
system was made by a highly technically trained individual with an
unbelieveable knowledge of electronics. With all of this expertise, he did
not inspect the telephone line, but on the other hand he allowed the
telephone line to remain exposed, knowing full well that it was the
"lifeline" of the system. This negligence in allowing the telephone line to
remain exposed was the proximate cause of the burglary. It allowed a group
of professional burglars to disarm the alarm system by merely cutting the
telephone line and entering the building through the floor and at their
leisure.

In the well reasoned Pennsylvania case of Douglas W. Randall, Inc. v. AFA
Protective Systems, 516 F.Supp. 1122 (1981), the defendants [*13] in
support of their motion for judgment N.O.V. contended the exculpatory clause
in the contract between the parties limited the amount of damages
recoverable by the plaintiff to $250.00. In Randall, supra, the court held:

Under Pennsylvania law, exculpatory clauses in contracts relieving a party
from liability for negligence are valid. Dilks v. Flohr Chevrolet, Inc., 411
Pa. 425, 192 A.2d 682 (1963). Such clauses, however, will be strictly
construed against the party who seeks to limit its liability. Fidelity
Leasing Corp. v. Dun & Bradstreet, Inc., 494 F.Supp. 786 (E.D. Pa. 1980);
Richard's 5 & 10, Inc. v. Brooks Harvey Realty Investors, 264 Pa.Super. 384,
399 A.2d 1103 (1979). The exculpatory clause in this action limits the
defendant's liability only with respect to acts of negligence, and not for
acts of gross negligence. Since the jury found that the defendant was
grossly negligent, the exculpatory clause does not limit the defendant's
liability to the plaintiff. Fidelity Leasing, supra. The defendant is
therefore liable to the plaintiff for $14,330.00, the entire amount of
damages awarded by the jury. The defendant's motion for judgment n.o.v. will
[*14] be denied.

In a most recent case, Trend Coin Co. v. Honeywell, Inc., Fla., Dade
County-11th Judicial Circuit Court, No. 80-8735-CA-06, June 22, 1983, the
court held that the exculpatory clause was unenforceable in circumstances
similar to the facts in the case at bar. The Florida court stated:

The jury determined that the exculpatory clause was unenforceable as an
adhesion provision and found for the plaintiff under all theories. Plaintiff
was awarded $8,037.674 for the full amount of loss, and $1 million punitive
damages, and $3,171,027 in interest from the date of loss.

We therefore hold that the law as stated in Randall, supra is no different
from the law in Tennessee and under the same facts the results are the same.
This issue is overruled.

The next issue that we must consider is whether the criminal acts of a third
party who burglarized the plaintiff's store were the proximate cause of the
plaintiff's alleged damages.

Under Tennessee law, the intervening act of a third party will not
ordinarily relieve a defendant of liability where the intervening cause
could reasonably have been foreseen. Gunn v. International Harvester Co.,
366 F.2d 349 (6th Cir. [*15] 1966); Ringer v. Godfrey, 362 S.W.2d 825
(Tenn.App. 1962). The crucial question in determining whether a third
person's criminal act is to be considered an efficient proximate cause of
injury is the foreseeability of the illegal conduct or the concurrence of
the original negligent conduct with the illegal intervening acts of the
third person. Central Alarm of Tucson v. Gannen, 567 P.2d 1203 (Ariz.App.
1977). Clearly, under the facts of this case, the foreseeability of the
burglary was clear.

Foreseeability is a question of fact for determination of the jury. City of
Elizabethton v. Sluder, 534 S.W.2d 115 (Tenn. 1976). Also see: Douglas W.
Randall, Inc. v. AFA Protective Systems, supra.

This issue is respectfully overruled.

The defendant, Rollins, in this issue contends that the court erred in not
allowing their tax expert to testify to a hypothetical question posed to him
but based on percentage figures previously established by the testimony of
the plaintiff. The Court experienced great difficulty in recalling the
testimony of the plaintiff on this specific point but in an abundance of
caution allowed counsel for Rollins the opportunity to clarify the
confusion. [*16] The Court held the proof open until the following morning
giving Rollins the opportunity to eliminate any problem that might have been
presented.

The following morning the Court again inquired of Rollins' counsel and asked
if they wished to correct the Court's position. To this inquiry, counsel for
Rollins replied: "Your honor, it just was not physically possible to get the
transcript."

The record reflects that neither counsel for Rollins nor counsel for Walters
made contact with the court reporter and requested a transcript of Stiles'
testimony nor the tapes made by the court reporter.

Rule 36, Rules of Appellate Procedure, clearly states:

... Nothing in this rule shall be construed as requiring relief be granted
to a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an
error.

The advisory Commission Comment to this portion of the rule also states:

The last sentence of this rule is a statement of the accepted principle that
a party is not entitled to relief if he invited error, waived an error, or
failed to take whatever steps were reasonably available to cure an error.

We [*17] must therefore hold that the court reporter was available to
furnish the tapes and/or record, and when counsel did not contact the court
reporter in an attempt to clarify the problem, that if there was error, it
was waived by the defendant, Rollins. This issue is respectfully overruled.

In presenting the next issue for review, the defendant, Rollins, contends
that the trial court erred in failing to grant a new trial in light of the
court's refusal to instruct the jury to disregard the closing argument of
plaintiff's attorney directed to the tort of outrageous conduct.

Prior to closing argument, the plaintiff insisted that the jury should be
allowed to consider the tort of outrageous conduct. The Court ruled that the
jury would be allowed to consider the tort of outrageous conduct as to
Rollins, but not as to Walters. Plaintiff's counsel argued or made mention
of outrageous conduct, however before counsel for Rollins could argue, the
Court reconsidered and held that the jury would not be allowed to consider
the tort of outrageous conduct as to Rollins. The Court in its charge
omitted any reference to the law concerning the tort of outrageous conduct.

It is well settled [*18] law that the latitude of argument is under control
of the Court. In the celebrated case of Hager v. Hager, 17 Tenn.App. 143, 66
S.W.2d 250 (1933), Judge DeWitt writing for the Court stated:

It is well settled that the latitude of argument is under the control of the
court; that it must be left largely to the ethics of the profession and the
direction of the trial judge. Saunders v. Baxter, 6 Heisk, 381; Ferguson v.
Moore, 98 Tenn. 342, 39 S.W. 341.

Therefore we must hold that if counsel for the plaintiff was allowed to give
argument that was improper and resulted in error, the error was surely
harmless and would not have affected the judgment. See: Rule 36, Tennessee
Rules of Appellate Procedure.

We overrule this issue.

Rollins further contends that the trial court erred by failing to grant a
new trial because of the Court's refusal to submit special interrogatories
to the jury.

We hold that this contention of the defendant, Rollins, is without merit.
All theories under which the plaintiff was allowed to go to the jury were
common law causes of action: fraud, misrepresentation, and gross negligence.
The Court was correct in refusing to submit special interrogatories [*19]
to the jury.

This issue is overruled.

The last and final issue Rollins submitted for review was whether the trial
court erred in not completely remitting the award of punitive damages, or,
are punitive damages allowable in the case at bar.

The case of National Polymer Products v. Borg-Warner Corp., 660 F.2d 171
(1981) sets the standards as to when punitive damages are allowable in the
Tennessee courts. In National Polymer Products, supra, the Court
emphatically stated:

The general standard for punitive damages under the Tennessee Law that
controls this diversity case was outlined in Johnson v. Husky Industries,
Inc., 536 F.2d 645 (6th Cir. 1976):

Under Tennessee law punitive damages may only be awarded in cases involving
fraud, malice, gross negligence or oppression, where a wrongful act is done
with a bad motive or so recklessly as to imply a disregard for social
obligations, or where there is such willful misconduct or entire want of
care as to raise a presumption of conscious indifference to consequences.
Such damages are allowed as punishment of the wrongdoer and are not based so
much upon the nature and extend of the injury as they are upon the
oppression [*20] of the party who does the injury.

536 F.2d at 650 (citations omitted). See also Edwards v. Travelers Insurance
of Hartford, Conn., 563 F.2d 105, 119 (6th Cir. 1977). Considering this
standard, the issue is whether the evidence was sufficient to submit the
issue of punitive damages for resolution by the trier of fact. See Drayton
v. Jiffee Chemical Corp., 591 F.2d 352, 366 n.13 (6th Cir. 1978); Guilbert
v. Phillips Petroleum Corp., 503 F.2d 587, 591 (6th Cir. 1974).

The decision in Douglas W. Randall, Inc. v. AFA Protective Systems, Inc.,
supra is precisely on point and allows recovery based on gross negligence.
If gross negligence is proven, punitive damages are recoverable.

We hold that there is no merit to this issue and it is thereby overruled.

The plaintiff, Glenn Stiles, also filed a notice of appeal and has presented
a sole issue for review. That issue being:

Whether the Trial Court was justified in suggesting a remittitur of
$125,000.00 punitive damages for those assessed by the jury against the
world's largest security company after the jury found to have been grossly
negligent and guilty of fraudulent and negligent misrepresentation.

On [*21] the motion for a new trial and judgment notwithstanding the jury
verdict, the trial judge remitted the punitive damage award from $150,000.00
to the sum of $25,000.00. The plaintiff accepted the remittitur under
protest and appealed to this Court, pursuant to our remittitur statute which
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 [*22] in the trial court." T.C.A. § 20-10-102.

The Tennessee Supreme Court in Foster v. Amcon Intern., Inc., 621 S.W.2d
142, 145 (1981), speaking through Justice Drowota, stated the standard of
appellate review in reviewing the trial court's actions in increasing or
decreasing a verdict:

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.

The plaintiff urges that the trial judge's remittitur of punitive damages
against defendant Rollins from $150,000.00 to $25,000.00 was not justified.
The polestar in this state concerning the consideration of the use of
remittiturs and additurs by the trial judge is Foster v. Amcon Intern.,
Inc., supra, a thorough and well stated opinion by Justice Drowota. After
reviewing the history of the use of remittiturs and additurs by the trial
judge, Justice Drowota substantially eliminated some of the difficulties
presented by Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978). Shelton
established [*23] that "[A]ppellate 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." Id. at 427.

Shelton was further explained in the subsequent case of Ellis v. White
Freightliner Corporation, et al, 603 S.W.2d 125 (Tenn. 1980). When dealing
with the question of remittitur according to Ellis, this Court has the duty
to review the proof of damages in the authority and to reduce an excessive
award.

Justice Drowota points out in Foster that Shelton provides that:

Appellate review should involve a determination of whether the jury's
verdict or the trial judge's use of a remittitur or additur has established
or rejected the credibility of any witness. The amounts awarded by the jury
and the trial judge may also indicate the probative value given to the
testimony of the witnesses. Throughout the review, the jury's determinations
should be given primary weight and the trial judge's secondary weight.
621 S.W.2d at 146.

Justice Drowota concluded:

We therefore modify Shelton to the extent that trial judges [*24] 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.
Id. at 147. He had earlier stated that:

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.
Id. at 145.

We have reviewed the record regarding the award of punitive damages and the
action of the trial judge relative thereto in accordance with the principles
laid down by our Supreme Court in Foster. We are of the opinion that the
trial judge was justified in decreasing the punitive damage award against
Rollins from $150,000.00 to $25,000.00.

For the reasons above stated, the judgment below is affirmed. Costs in this
cause are taxed one-fourth to plaintiff and three-fourths to defendants, for
which execution may issue, if necessary.

NEARN, P.J., W.S. (Concurs), TOMLIN, J. (Concurs) [*25]