Bankhead v. Hall
| Decision Date | 08 November 1950 |
| Citation | 238 S.W.2d 522,34 Tenn.App. 412 |
| Parties | BANKHEAD et al. v. HALL. |
| Court | Tennessee Court of Appeals |
Nelson, Norvell, Owens & Floyd, of Memphis, for plaintiffs-in-error.
W. C. Rodgers, of Memphis, for defendant-in-error.
The transcript is incorrectly styled in this case. The defendants below have appealed, are the Plaintiffs-in-Error. The case should therefore be styled as we have it on the Caption sheet of this opinion. The attention of the Clerk of the Court below should be called to the proper styling of transcripts.
The record reflects that the actors in the following episode are Negroes and the incidents developed by the evidence are quite out of the ordinary.
This appeal in the nature of a writ of error is by the defendants below from an adverse verdict and judgment.
The declaration is in two counts, which are really two separate suits; the first count is for damages for assault and battery with a taxicab; the second count is for damages for malicious prosecution.
To the first count defendants plead the general issue and contributory negligence and specially that defendants admitted that the cab struck plaintiff but claimed self-defense in that plaintiff was alleged to have been threatening defendant Bankhead, the operator of the cab, with a pistol and attempting to rob him; it was admitted that Bankhead was an employee of defendant, Nu-Way Taxi Company, Inc., but denied he was acting on the business of the company or within the scope of his employment at the time.
To the second count defendants deny they made false accusations against plaintiff but admit they had him arrested and incarcerated; they deny they had him indicted and tried but admit he was acquitted in the Criminal Court; they deny they were motivated by malice.
At the close of all the evidence a verdict was directed in favor of the Taxi Company as to the first count--assault and battery, from which action no appeal was sought.
The case was submitted to the jury who found as to the assault and battery count as follows:
and as to the malicious prosecution count as follows:
'We the jury find for the plaintiff, and assess damages in the amount of Three hundred and fifty ($350.00) as compensatory damages and assess punitive damages at one thousand ($1000.00) dollars.
Motions for new trial having been made and overruled and appeal perfected the errors assigned here are in substance in behalf of Bankhead on the first and second counts are (1) no material evidence to support the verdict and error in not directing a verdict in his favor, (2) the verdict is excessive and so excessive as to indicate passion, prejudice and unaccountable caprice, and (3) as to the second count Bankhead assigned the additional error that 'the verdict was not definite and certain in that it did not specify whether is was against one or both defendants'.
The errors assigned by the Taxi Company as to the malicious prosecution count are the same as above.
The assignment that the verdict is against the weight of the evidence is not a proper one on appeal for the purpose of testing the correctness of a jury verdict in either of the two aspects of a jury verdict--liability or amount.
We discussed this matter in the recent case of Board of Mayor etc. v. Moore, Tenn.App., 232 S.W.2d 410, and need not repeat it here.
The assignments raising the question whether there is material evidence to support the verdict on the first count, assault and battery, must be overruled. The brief of plaintiff in error omits any discussion in support of these assignments and we find ample evidence to support the verdict. It would be unnecessary to discuss the evidence in support of the first count except for the fact that it is quite germane to the same assignments directed at the verdict on the malicious prosecution count.
There is no dispute as to what occurred up to a certain point. Bankhead had four passengers in the cab when he was flagged on Beale Street by Hall who there entered the cab. Two of the passengers left the cab shortly afterwards and the other two rode up to Hall's destination, some distance north of Main Street and Jackson Avenue where the altercation later arose.
Bankhead agreed to and did wait for Hall to fetch his girl friend Willie Mae Small and then drove them with the other two passengers back down to Main and Jackson.
Bankhead and Hall then went into a cafe to get change for a five dollar bill and Hall paid Bankhead $1.50 fare and a five cent tip.
At this juncture the dispute arose. Bankhead claimed Hall owed $1.95. Hall claimed he made inquiry as to the fare both when he first entered the cab and before he and his girl entered it and that Bankhead fixed it at 75cents each time.
In any event another cab of the same company and driven by Bennett arrived on the scene and Hall says he thought these two cab drivers were going to gang him, so he was about to pay the additional 45cents but that suddenly both cabs whisked away. In the meantime his 'girl friend' had become frightened and left. Hall says he then went east in an effort to get to his home at 129 Jackson but before he reached it the cab appeared again and slowed down, so that he was frightened and got under a porch until he thought the cab was gone. He then emerged from hiding and was attempting to cross from the north side of Jackson to the south side where his girl was waiting for him, when she yelled to him to look out and just then the cab headed east on Jackson, which is a one-way street west, came up behind him, ran over him and left the scene without stopping.
Bankhead's version is that when the dispute about the fare arose, Hall drew a pistol on him and attempted to rob him, that both cabs pulled away in a hurry, that he made a U-turn on Main back north, went west on Jackson a short distance, made a U-turn back east on Jackson blowing his horn all along to attract the police and when he had gotten a short distance east of Main on Jackson, Hall suddenly ran out in front of the cab brandishing his pistol and pointing it toward the cab. He admits he deliberately ran over Hall and did not stop; he claims self-defense.
Hall's theory is supported by ample evidence--particularly by the testimony of his girl and by a disinterested witness, James Wallace, who saw the cab run over Hall and who saw no pistol in his hand and who contradicts Bankhead about his claim of blowing his horn.
There was simply a conflict in the evidence and the jury believed Hall and his witnesses. It requires little discernament to see why the jury did not believe Bankhead. All that, however, was within the province of the jury alone and, as intimated, we have touched upon it because of its relevancy to the question of lack of probable cause and malice under the second count.
As a sequel to that incident Hall was arrested a few days later, tried in the City Court and bound over to the State on a charge of robbery and carrying a pistol. He was tried in the Criminal Court only on the pistol charge and acquitted and was released after languishing in jail for over six weeks.
As said above, defendants plead the general issue and justification, which though inconsistent, may be done under Code Section 8759 and cases cited thereunder. In their joint special plea they admitted they had Hall arrested and incarcerated, but they denied they had him indicted and tried and denied they acted without probable cause and with malice. This left the burden of proof on Hall to show malice and want of probable cause under the general issue. F. W. Woolworth Co. v Connors, 142 Tenn. 678, 222 S.W. 1053; Bry-Block Mercantile Co. v. Proctor, 13 Tenn.App. 45; Poster v. Andrews, 183 Tenn. 544, 194 S.W.2d 337.
Counsel for Hall relies upon a statement in Wheeler v. Nesbitt, 24 How. 544, 65 U.S. 544, 16 L.Ed. 765, 769, that plaintiff must prove lack of probable cause by some affirmative evidence, '.
Such a statement could be applicable only to the special plea herein, but not to the general issue.
Defendants have not plead singly the truth of the charge, but have plead it in addition to the general issue.
In such a situation, if the defendant prove the truth of the charges, that is a complete defense. If defendant fail on this special plea, then the plaintiff must succeed in proving as a part of his case in chief, malice and want of probable cause. See discussion in 38 C.J. 471-472, sections 135 and 136, 54 C.J.S., Malicious Prosecution, § 81.
There is ample evidence to show that Bankhead acted with malice and without...
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Devine v. Patteson
...failure to testify in the malicious prosecution case warranted an inference of bad faith and want of probable cause. Bankhead v. Hall, 34 Tenn.App. 412, 238 S.W.2d 522, 527. The District Court did not err in submitting this issue to the Defendant raises a second question which we deem it un......
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...jury's $475,000 damage award. A. Reviewing courts must, whenever possible, give effect to a jury's verdict. Bankhead v. Hall, 34 Tenn.App. 412, 424, 238 S.W.2d 522, 527 (1950). Thus, we must give verdicts their most favorable interpretation and must give effect to the jury's intent if permi......
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