Davis v. Hall
Annotate this Case IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
_______________________________________________ FILED
OLLIE DAVIS AND R. D. DAVIS,
October 3, 1995
Plaintiffs-Appellants,
Cecil Crowson, Jr.
Appellate C ourt Clerk
Vs. Shelby Circuit #47036 T.D.
C.A. No. 02A01-9410-CV-00245
HORACE HALL,
Defendant-Appellee.
_________________________________________________________________________
FROM THE CIRCUIT COURT OF SHELBY COUNTY
THE HONORABLE WYETH CHANDLER, JUDGE
Lewis K. Garrison of Memphis
For Plaintiffs-Appellants
John D. Richardson, The Richardson Law Firm, of Memphis
For Defendant-Appellee
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD, JUDGE
CONCUR:
HEWITT P. TOMLIN, PRESIDING JUDGE, W.S.
ALAN E. HIGHERS, JUDGE
This appeal involves a suit to recover damages for personal injury and
property damage arising out of an automobile accident. Plaintiffs, Ollie H. Davis
and R. D. Davis, appeal from the judgment of the trial court on a jury verdict for
the defendant, Horace Hall.
The complaint alleges that on March 5, 1992, plaintiff, Ollie Davis, was
driving the plaintiffs' 1981 Buick automobile east on Shelby Drive in Memphis,
Tennessee, when the defendant, who was also driving east on Shelby, drove his
1977 Ford automobile into the rear of plaintiffs' vehicle, thereby causing a
collision in which plaintiff sustained personal injuries and property damage.1 The
complaint alleges that defendant's actions were negligent and that they
violated city ordinances and state statutes. The complaint further alleges that
defendant's action were the direct and proximate cause of the collision as well
as the resulting losses, injuries, and damages to the plaintiffs.
Defendant's answer denies the material allegations of the complaint. In
addition, defendant filed a counterclaim for damages alleging that plaintiff was
guilty of various acts of common law negligence and violation of city
ordinances and state statutes, all of which directly and proximately caused the
collision and resulting damages to the defendant.
The jury returned a verdict for the defendant on the original complaint
and awarded defendant $700.00 in damages on his counter-complaint. The
court duly entered judgment on the jury verdict, and plaintiffs have appealed
and present nine issues for review.
The first issue, as stated in plaintiffs' brief, is:
1
Plaintiff, R.D. Davis, Ollie Davis's husband, sues for loss of services and
consortium.
2
1. Did the trial judge commit reversible error by
communicating with the jury during deliberations
outside the presence of counsel and without the
consent of counsel.
In support of the motion for new trial, plaintiffs submitted Mr. Davis's
affidavit which states that he observed the trial judge, during jury deliberations
and absent counsel for the parties, enter the jury room, and that shortly
thereafter, the judge permitted the jury to break for lunch. The affidavit also
stated that immediately after Mr. Davis's lawyer returned from lunch, Mr. Davis
conveyed this information to his lawyer. The record does not reveal, nor does
plaintiffs' brief assert, that plaintiffs' counsel at any time, prior to filing the motion
for a new trial, objected to any communication the judge had with the jury. At
the hearing on the motion for new trial, the trial judge stated:
Now, all I can say again with regard to that first
allegation is, is that I do not recall speaking to any jury.
I have never spoken to any jury unless -- the only
purpose I speak to them would be for the purpose of
saying ladies and gentlemen, you all ready to take a
break or go to lunch or are you ready to go home or
whatever. That doesn't take any sixty seconds. It
takes about five seconds and I wouldn't influence this
jury or any other jury and wouldn't say anything or do
anything unless I had the permission of the counsel to
do it. So -- unless I was just walking by and somebody
yelled at me and said, how long do we have to stay
and I said, if y'all ready to go, I'll tell the lawyers. That
would be the extent of it. Nothing more. And I never
heard -- there has never been -- no allegation of that
type has ever been levied against me and I don't take
well to it.
[D]on't mind your client saying he saw me leaning in
the jury room because I very well could have. As I say,
I do that. I don't know how to tell them it's time to go
home or time to take a break without either me
looking in there or the sheriff looking in there or
somebody looking in there. And I generally like to
knock on the door, tell them to come to attention and
look in and say, ladies and gentlemen, are y'all ready
to go home. . . .
The trial judge permitted plaintiffs to introduce the testimony of a court
3
deputy who testified that she did observe the judge enter the jury room after he
stated that he was "going to check about lunch."
Although it is error for a trial judge to have ex parte communication with
members of the jury, Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 941 (Tenn. 1994), there was no timely objection to any ex parte communication, and, thus, "plaintiffs waive their right to complain." Guy v. Vieth,754 S.W.2d 601
, 605 (Tenn.
1988).
In Guy, the Court stated:
The best position seems to us to be that a trial judge's
ex parte communication with a jury in a civil case
does not require reversal per se, but reversal is
required where a timely complaining party shows
specific prejudice or where, owing to the nature of the
ex parte communication, the reviewing court is
unable to determine whether the action was actually
harmless.2 [Citations omitted]. (Emphasis in original).
Id. at 605.
In the case at hand, the record is clear that the trial judge merely inquired
about lunch, and that this inquiry had no bearing on the jury deliberations.
Therefore, plaintiffs' first issue is without merit.
Plaintiffs' second and third issue, as set out in the brief, will be considered
together:
2. Did the trial court err by permitting defendant to
introduce, play in the presence of the jury, and mark
as an exhibit a tape recording of plaintiffs'/appellants'
independent witnesses' statements to an insurance
adjuster when the Defendant failed to disclose these
oral statements or the name of the adjuster during
discovery.
3. Did the trial court err in allowing defense counsel to
play a recorded statement by lay witness, Everett
Jones and where the witness opined that the rain on
2
This rule, announced in Guy, was reaffirmed in Spencer v. A-1 Crane
Serv., Inc., supra.
4
the day of the accident caused the accident and
plaintiffs' motion for a mistrial was denied.
We should first note that plaintiffs' brief concerning these issues contains
no citations to the record. This Court has no duty to exhaustively search this
voluminous record to verify the unsupported allegations in plaintiff's brief.
McReynolds v. Cherokee Ins. Co., 815 S.W.2d 208, 211 (Tenn. App. 1991); Airline Constr. Inc. v. Barr,807 S.W.2d 247
, 275 (Tenn. App. 1990). Nevertheless, in this
instance the Court will address the issue.
Plaintiffs first argue that the trial court should have excluded the
statements because they were not produced in discovery. The record reflects
that plaintiffs did not file interrogatories to discover any pertinent material, nor
did plaintiffs file a request for production. Apparently plaintiffs contend that in
a pretrial discovery deposition defendant was asked if he had knowledge of
any witnesses, to which he replied in the negative and that this constituted a
denial of the existence of any tapes.
The record also reflects that when defense counsel brought up the tape
in the trial of the case, the trial court recessed and allowed plaintiffs' counsel to
listen to the tape and then to make any objections. Although plaintiffs' counsel
made several objections, he never stated as a ground for an objection that
defendant had violated any rules of discovery. Moreover, we do not have the
discovery deposition apparently relied upon by plaintiffs, and therefore, we
cannot ascertain the context of any questions asked concerning witnesses
known to the defendant.
Plaintiffs also argued that the tape recording was improperly used to
impeach the witness's testimony concerning five issues, because the issues were
either irrelevant or the taped statement was not inconsistent with the testimony
of the witness on those issues. In order for a statement to be used to impeach
5
a witness, the statement must be inconsistent with the statement given at trial.
Tenn.R.Evid. 613; Doochin v. U.S. Fidelity & Guar. Co., 854 S.W.2d 109, 114 (Tenn. App. 1993). A review of the tape introduced in this case indicates statements that were inconsistent with the version of events the witness related at trial. We note also that the witness was afforded the opportunity to explain or deny the statements made on the tape. See Tenn.R.Evid. 613 (b). The trial court has great discretion in the admission or rejection of evidence, and the court's action will be overturned on appeal only when there is a showing of abuse of discretion. Otis v. Cambridge Mutual Fire Insurance Co.,850 S.W.2d 439
(Tenn. 1992). These
issues are without merit.
The fourth issue presented for review, as stated in plaintiffs' brief, is:
4. Did the trial court commit reversible error by
permitting the investigating police officer of a prior
automobile accident by plaintiff to testify regarding
the prior accident where the plaintiff stated she did
not remember the accident and medical records
from the prior accident had already been introduced.
Plaintiff testified that she could not remember being in a prior automobile
accident in 1985. To impeach plaintiff's testimony, defendant introduced a
hospital record to show that plaintiff claimed a neck injury apparently from an
automobile accident in 1985. Defendant then submitted the testimony of a
police officer stating that plaintiff was involved in a rear end collision in 1985.
Plaintiffs' suit is for personal injuries, including a neck injury resulting from an
automobile accident, and she denied a prior accident in which such an injury
was claimed. Therefore, the evidence introduced was relevant and properly
admitted to contradict plaintiffs' testimony.3 See Neil P. Cohen et al., Tennessee
Law of Evidence ยง 607.3 (2d ed. 1990).
3
However, the testimony of the police officer might be considered
somewhat cumulative.
6
The fifth issue for review, as stated in plaintiffs' brief, is:
5. Did the trial court err in not sustaining plaintiffs'
counsel's objection and by not giving curative
instructions to the jury where defense counsel in his
closing argument told the jury that a vehicle moves so
many feet per second and no proof was adduced at
trial on this point.
Although plaintiff failed to direct this Court to the point in the record
where any alleged error occurred, we have located the alleged error and will
briefly address it. During the closing argument, defendant's counsel argued to
the jury that, "We all know that a car driving 40 m.p.h. goes 60 feet a second."
Plaintiffs' counsel objected because there was no proof of such calculations in
the record. The trial court admonished counsel to allow the jury to make their
own calculations and, thus, in effect, sustained the objection. Plaintiffs' counsel
asked for no curative instruction of any kind.
In general, the control over the argument of counsel resides with the trial
court, and the trial court has broad discretion as to what shall and shall not be
permitted in argument. The appellate courts generally will not interfere with the
discretionary action of a trial court in refusing to grant a mistrial or a new trial for
misconduct of counsel in argument unless the argument is clearly unwarranted
and made purely for the purpose of appealing to passion, prejudices and
sentiment which cannot be removed by sustaining the objection of opposing
counsel. Perkins vs. Sadler, 826 S.W.2d 439, 442 (Tenn. App. 1992). We find no
error by the trial court, and this issue is without merit.
The sixth issue, as stated in plaintiffs' brief, is:
6. Did the trial court err by instructing the jury that an
insurance company was not a party to this suit and
insurance should not be considered by the jury, where
the jury was led to believe there was no insurance and
plaintiffs' motion for a mistrial was denied.
Plaintiffs assert that the "trial court's instructions regarding no insurance in
7
the case went beyond the normal charge of instructing the jury not to consider
insurance in their deliberation." Once again, plaintiffs have failed to cite to the
record, but we have located the alleged error in the trial court's instructions. The
trial court stated:
Now, Ladies and Gentlemen, in this case no insurance
company is a party to this action. You must refrain
from inferences, speculation or discussion about
insurance.
The court's instruction to the jury is correct in every respect. This issue is
without merit.
Plaintiffs' seventh issue for review, as stated in their brief, is:
7. Did the trial court err in permitting defense counsel
in his opening argument to state that plaintiff had
previously sustained a worker's compensation injury,
received a 16 percent (16%) disability rating, and
settled her claim where its unfair prejudice
outweighed the probative value of this statement and
mislead [sic] the jury.
In the opening statement, defendant's counsel stated that plaintiff was
claiming a neck injury in the case about to be tried, but that in fact she had
continuing problems from a previous injury where she had received a workers
compensation settlement based upon a disability rating of only 16 percent to
the body as a whole. Plaintiffs' counsel made no objection to this statement, nor
did plaintiffs' counsel ask for a mistrial or other curative measures. From our
review of the record we cannot say that counsel's remarks in opening statement
concerning the workers compensation settlement more probably than not
affected the verdict of the jury. In any event, it appears that plaintiffs' counsel
apparently did not think that there was an infraction because no motion was
made for any curative instruction or for a mistrial. This issue is without merit.
Plaintiffs' eighth issue for review, as set out in the brief, is:
8. Did the trial court err in not permitting plaintiffs'
8
witness/investigator to testify about debris, skid marks
and measurements he took at the accident scene
where the investigator had personal knowledge of this
information since he visited the scene within days after
the accident and made a diagram of same.
Plaintiffs have failed to direct this Court to the alleged error's location in
the record, but it appears from our review that defendant addressed the court
in what could be considered a motion in limine concerning a witness's
testimony. We did not see a definitive ruling by the trial court excluding this
person as a witness. The trial court, in colloquy with counsel, noted that he
would prohibit the witness from testifying as to certain things that were not
competent, and apparently no objection was made by plaintiffs' counsel. In
any event, the witness was never put on the stand, and there was never any
offer of proof of any kind. Thus, we have no way of knowing whether the
evidence was improperly excluded. In the absence of an offer of proof and the
inclusion of the testimony in the record, this Court cannot consider the alleged
error. Brown v. Weik, 725 S.W.2d 938, 948 (Tenn. App. 1983); Valentine v. Conchemco, Inc.,588 S.W.2d 871
, 876 (Tenn. App. 1979). This issue is without
merit.
The last issue presented for review, as stated in plaintiffs' brief, is:
9. Did the trial court err in permitting the jury to take
into deliberations the original tape recording of a
recorded statement given by plaintiffs' independent
witness Jones, where part of the original tape had
been deemed inadmissible and excluded from the
jury and a second substitute tape recording with the
objectionable material deleted had been entered as
an exhibit.
It appears from the briefs that the tape recording involved in issues 2 and
3 was retaped to eliminate objectionable material, and the new tape was to be
the evidentiary exhibit. However, the original tape recording, introduced for
identification only, was kept with the exhibits and inadvertently went to the jury
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room with the other exhibits. When the exhibits were sent to the jury room,
counsel for plaintiffs should have been alert to what was being sent to the jury
room and not now complain that the court allowed a rejected piece of
evidence to go to the jury. This issue is entirely without merit.
The judgment of the trial court is affirmed, and costs of the appeal are
assessed against the appellants. The case is remanded to the trial court for such
further proceedings as may be necessary.
____________________________________
W. FRANK CRAWFORD, JUDGE
CONCUR:
_________________________________
HEWITT P. TOMLIN, JR.,
PRESIDING JUDGE, W.S.
_________________________________
ALAN E. HIGHERS, JUDGE
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