American Lead Pencil Co. v. Davis

• Decision Date: 21 December 1901
• Citation: 66 S.W. 1129
• Parties: AMERICAN LEAD PENCIL CO. v. DAVIS.
• Court: Tennessee Supreme Court

66 S.W. 1129

AMERICAN LEAD PENCIL CO. v. DAVIS.

Supreme Court of Tennessee.

December 21, 1901.

Appeal from circuit court, Marshall county; W. C. Houston, Judge.

Action by Clarence J. Davis, by his father, as next friend, against the American Lead Pencil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Smithson, Armstrong & Neil and Thompson & Wallice, for appellant. Marshall & Armstrong, for appellee.

CALDWELL, J.

While in the employment of the American Lead Pencil Company at its factory in Lewisburg, Tenn., Clarence J. Davis, a boy 10 years old, received such personal injuries as necessitated the amputation of his right arm. By his father, as next friend, he brought this action against the company, and obtained verdict and judgment for $2,875 as damages. The company prosecutes this appeal in error from that judgment, and raises several objections to the proceedings below.

1. It was the duty of the plaintiff, in the course of his work for the defendant, to tie in bundles the penholders that dropped from each of two planers into boxes. These planing machines were near each other, and in close proximity to the pulley on which the plaintiff was caught and injured. With a view of corroborating his own testimony as to the location and unprotected condition of these machines, the plaintiff introduced James Bearden, who testified as follows: "I worked there after Davis was hurt. I know how the planers were arranged and located while I worked there, but don't know how it was when plaintiff was hurt. There were three machines side by side. Two were from four to six feet apart, [and] there was no protection from the belt or pulley while I was there." This statement about the situation was admitted over objection of the defendant, and its admission is assigned as error. The assignment is bad, because the objection was general, being, "Defendant excepted to the question" (Telephone Co. v. Poston, 94 Tenn. 696, 30 S. W. 1040; Crane v. State, 94 Tenn. 86, 28 S. W. 317); also because testimony relating to condition soon after catastrophe, nothing else appearing, was competent as tending to show condition at that time; and, finally, because the next witness said, "Machines [were] in same place and condition when Jim Bearden worked there that they were when Davis worked there." If the testimony excepted to had disclosed the fact of subsequent repair of supposed defect in condition or arrangement of machinery, it would have been incompetent under the principle announced in Railroad Co. v. Wyatt, 104 Tenn. 433, 58 S. W. 308, 78 Am. St. Rep. 926. But such was not the purport of the testimony. It indicated no change in the locus in quo.

2. Again, it is assigned as error that the court charged the jury that they might allow punitive or exemplary damages if they believed, from all the facts and circumstances, that the defendant was "guilty of gross negligence," or acted in "reckless disregard of the safety of the child." The objection is twofold: (1) That the instruction was unsound in law; and (2) that it was not justified by the evidence. Neither point is well taken. The instruction correctly makes either "gross negligence" on the part of the defendant or its "reckless disregard of the safety of the child," if proven, a basis for punitive or exemplary damages, in the discretion of the jury. "Gross negligence" — which is the milder of the two expressions — is one of the terms used by the authorities in stating the general rule that such damages are allowable in actions of tort whenever "fraud, malice, gross negligence, or oppression" intervenes. Exactly those four terms are so employed in Sedg. Dam. (6th Ed.) at page 35, and in many of our cases, including the following: Byram v. McGuire, 3 Head, 532; Dougherty v. Shown, 1 Heisk. 306; Robins v. Frazier, 5 Heisk. 101; Haley v. Railroad Co., 7 Baxt. 242; Cox v. Crumley, 5 Lea, 533; Railroad Co. v. Guinan, 11 Lea, 103, 49 Am. Rep. 279; Transportation Co. v. Smith, 16 Lea, 501, 1 S. W. 280; Telegraph Co. v. Shaw, 102 Tenn. 318, 52 S. W. 163; Traction Co. v. Lane, 103 Tenn. 388, 389, 53 S. W. 557, 46 L. R. A. 549. Gross negligence, then, is undoubtedly one ground for the allowance of punitive or exemplary damages; and for the greater reason is that degree of turpitude described by the stronger expression of the charge, "reckless disregard of the safety of the child," also a ground for...