Clements v. Veterans Cab Co.

• Decision Date: 29 August 1960
• Citation: 48 Tenn.App. 152,344 S.W.2d 572
• Parties: Mrs. Betty CLEMENTS, Plaintiff in Error, v. VETERANS CAB COMPANY, Defendant in Error. 48 Tenn.App. 152, 344 S.W.2d 572
• Court: Tennessee Court of Appeals

Page 572

344 S.W.2d 572

Mrs. Betty CLEMENTS, Plaintiff in Error, v. VETERANS CAB COMPANY, Defendant in Error.

48 Tenn.App. 152, 344 S.W.2d 572

Court of Appeals of Tennessee, Western Section, at Jackson.

Aug. 29, 1960.

Certiorari Denied by Supreme Court March 10, 1961.

[48 TENNAPP 153] R. L. Pearson and Louis Peiser, Memphis, for plaintiff in error.

McDonald, Kuhn, McDonald, Crenshaw & Smith, Memphis, for defendant in error.

BEJACH, Judge.

The plaintiff in error, Mrs. Betty Clements, was plaintiff in the lower court and the defendant in error Veterans Cab Company of Memphis, was defendant in the lower court; so, for convenience, the parties will be styled, as in the lower court, plaintiff and defendant, or called by their respective names. A companion suit, tried in the lower court along with this one, was filed by Mrs. Clements' husband for loss of services and medical and hospital expenses incurred by him, which suit resulted in a verdict for $1,250 in his favor. No appeal was taken in that case, however, so it is not involved in this Court. The suit of Mrs. Clements, which was appealed by her, resulted in a verdict which was as follows:

'We the jury, find for the plaintiff with no damages awarded.

'Norman P. Cox, Foreman'

It appears in the record before us, that the jury when it first undertook to report, returned a verdict in favor of Mr. Clements for $1,250, but at the same time tried to return a verdict for the defendant in Mrs. Clements' case. [48 TENNAPP 154] The trial judge explained to the jury that these verdicts were inconsistent; whereupon, the jury, after further deliberation, reported that they had agreed on the amount to be awarded to both Mr. and Mrs. Clements, but did not know how to divide it. The judge then gave further instructions to the jury, after which it reported for the third time, returning the two verdicts as stated,--one in favor of Mr. Clements for $1,250 and the other in favor of Mrs. Clements with no damages awarded. The trial judge accepted these verdicts and entered judgment on same, assessing the costs against the defendant in both cases. In Mrs. Clements' case, she moved for a new trial which was overruled, after which the perfected her appeal in the nature of a writ of error to this Court.

A motion to strike the bill of exceptions was filed in this Court by the defendant in error, on the ground that the bill of exceptions does not state that it contains all the evidence introduced in the case, and on the further ground that said bill of exceptions affirmatively discloses that it does not in fact contain all of the evidence. Counsel for the plaintiff in error undertook to answer this motion by filing an affidavit of the court reporter who wrote up his notes for the purpose of making a bill of exceptions, which stated that it was a pure oversight and inadvertence on his part that caused him to omit adding a statement that it contained all of the evidence in the case. As to the bill of exceptions, as actually filed, affirmatively showing that it does not contain all of the evidence, it was contended by counsel for plaintiff in error that the exhibits shown to be omitted dealt exclusively with the husband's suit, and were not necessarily or properly a part of the bill of exceptions in the case which was appealed.

[48 TENNAPP 155] At the hearing of this cause, counsel for the defendant in error undertook to withdraw said motion to strike the bill of exceptions, to the end that the recitals therein contained, showing the several reports of the jury and the trial judge's comments thereon would be properly before this Court. After careful consideration of the matter, we have decided to permit the withdrawal of said motion, although it makes no difference in the result we have reached whether the bill of exceptions be stricken or permitted to remain in the record. Even with the motion to strike withdrawn, it would still be our duty to refuse to consider the evidence in the case when the fact is called to our attention that the bill of exceptions contains no certificate reciting that it contains all the evidence, if consideration of the evidence should be material to the result reached.

The law is settled in Tennessee by a long line of cases holding that where there has been a general verdict, the bill of exceptions must affirmatively show, or it must appear from the nature of the case that all the evidence submitted to the jury of the court below material with reference to the questions to be raised in the reviewing court, is stated in the bill, or the appellate court will presume that there was evidence to authorize and sustain the verdict of the jury or findings of the Court and the judgment thereon. Among such cases are: Insurance Co. v. Scales, 101 Tenn. 628, 49 S.W. 743; Kennedy v. Kennedy, 84 Tenn. 736; Kirkpatrick v. Utley, 82 Tenn. 96; Huffman v. Hughlett, 79 Tenn. 549; Franklin Fire Ins. Co. v. Crockett, 75 Tenn. 725; Kincaid v. Bradshaw, 65 Tenn. 102; Holbert v. Seawright, 62 Tenn. 169, 170; Mason v. Anderson, 59 Tenn. 40; Jackson Ins. Co. v. Sturges, 59 Tenn. 339; Tomeny v. German Nat. Bank, 56 Tenn. 493; [48 TENNAPP 156] Sweat v. Rogers, 53 Tenn. 117; Heatherly v. Bridges, 48 Tenn. 220; Massengill v. Shadden, 48 Tenn. 357; Hix v. Cornelison, 47 Tenn. 299; Woods v. State, 47 Tenn. 335; Wickham v. State, 47 Tenn. 525; Pullen v. Lane, 44 Tenn. 249, 250; Martin v. Bank, 42 Tenn. 332; Mulholland v. Ellitson, 41 Tenn. 307, 308; Whiteside v. Latham, 42 Tenn. 91; Bird v. Fannon, 40 Tenn. 12; Davis v. Jones, 40 Tenn. 603; Nolen v. Wilson, 37 Tenn. 332, 333; Noe v. Hodges, 24 Tenn. 103, 105; Turnley v. Evans, 22 Tenn. 222; Melton v. State, 22 Tenn. 389; Wilkins v. Gilmore, 21 Tenn. 140; Trott v. West, 18 Tenn. 499; Trott v. West, 19 Tenn. 163; Yates v. State, 18 Tenn. 549; Crawford v. Bynum, 15 Tenn. 381; McCallen v. Sterling, 13 Tenn. 223; Kingsley v. State Bank, 11 Tenn. 107; and McGavock v. Ward, 3 Tenn. 403. This formidable line of cases is mitigated to some extent by rulings in Yates v. State, 18 Tenn. 549 and Woods v. State, 47 Tenn. 335, holding that some other recital may be sufficient, or that if it otherwise appears that the bill of exceptions does contain all of the evidence, the absence of the unequivocal recital to that effect will not be fatal. In the recent case of Eslinger v. Miller Bros. Co., Inc., Tenn. 1958, 315 S.W.2d 261, 265, in an opinion on petition to rehear, written by Mr. Justice Swepston, the Supreme Court held that the absence of a recital in the bill of exceptions that it contains all of the evidence could not be first called to the attention of the Court in a petition to rehear. Two of our own cases of recent date are in harmoney with the policy of mitigating the extreme harshness of the rule. In Zanola v. Hall, Tenn.App.1957, 307 S.W.2d 941, 943, we held that a certificate reciting that the bill of exceptions contained all of the evidence 'material to the issues raised on appeal', was sufficient; and in State for Use and [48 TENNAPP 157] Benefit of Henderson County ex rel. Hanover v. Stewart, Tenn.App.1959, 326 S.W.2d 688, where the bill of exceptions recited that it contained all of the evidence, but it appeared affirmatively that two exhibits, not material to the issues raised on appeal, had been omitted, we held that such omission was not fatal. These decisions, in our opinion, justify us in permitting the withdrawal of the motion to strike; although, as stated above, withdrawal of the motion would not, of itself, remove the obligation on our part to presume, in the absence of a recital that the bill of exceptions contains all the evidence, that other evidence was in fact presented in the lower court, if examination of the evidence became material to our decision.

In the instant case, however, it is our opinion that it is immaterial whether the bill of exceptions be stricken or be allowed to remain in the record for consideration of this case on appeal, because consideration of the evidence is unnecessary. If the bill of exceptions were stricken, we would still have before us the technical record, including the verdict of the jury and the judgment of the lower court thereon; and, it is our judgment that a verdict returned in favor of the plaintiff which awards no damages is erroneous on its face. Plaintiff in error has filed, in this Court, eight assignments of error; but we will refer to the...