Cumberland Tel. & Tel. Co. v. Shaw

• Decision Date: 19 April 1899
• Citation: 52 S.W. 163,102 Tenn. 313
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. SHAW.
• Court: Tennessee Supreme Court

52 S.W. 163

102 Tenn. 313

CUMBERLAND TELEPHONE & TELEGRAPH CO. v. SHAW.

Supreme Court of Tennessee.

April 19, 1899

Error to circuit court, Shelby county; J. S. Galloway, Judge.

Trespass by B. A. Shaw against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff for a less amount than that demanded, plaintiff brings error. Reversed.

W. M Farrington, for plaintiff in error.

Turley & Wright, for defendant in error.

McFARLAND Special Judge.

This is a suit for the wrongful cutting of a tree by the Cumberland Telephone & Telegraph Company, belonging to plaintiff in error, B. A. Shaw. The action was begun before a justice of the peace to answer B. A. Shaw in a plea of damages under $500. There was judgment before the justice for $5, appeal to the circuit court, trial before a jury, and verdict for $7.50, and appeal to this court, and assignment of errors.

The assignments of error are five in number. Four of these are as to errors in the refusal of the trial judge to give specific instruction requested. As to these, the record shows that the request for three specific instructions was made before the judge had given his charge to the jury, and the request was not resumed after the judge had charged the jury. Under the established rule of this court, it will not reverse in such cases, even though the special charges asked were in themselves proper to have been given; for if the attorney does not, after hearing the charge so given, renew his request for special instructions, he is presumed to have considered the general charge as sufficient, and deemed it unimportant to his client's interest that the special charges previously asked be given. For this reason these four assignments of error must be overruled.

The first assignment of error is this: "The judge erred in sustaining objections to questions propounded to Mr. Foster Hume, superintendent of the Memphis department of defendant in error's company, tending to show its ability to pay punitive damages." Upon this point the record shows that, while Mr. Hume was being examined by plaintiff's attorney, he asked him questions as to capital, business etc., of the defendant company, "tending to show its ability to pay punitive damages," all of which were ruled out by the court; whereupon plaintiff's counsel excepted, upon the grounds that he was entitled to prove such facts to enable the jury to estimate punitive or exemplary damages, if they thought such were proper. The special charges requested by plaintiff, and refused by the court were mainly upon the question of punitive damages, but, as we have decided, these cannot be now considered.

The only remaining question, therefore, is, were sufficient facts proved by the plaintiff to allow these questions of punitive or exemplary damages to go to the jury? The facts of the case upon this point were these The plaintiff, Dr. B. A. Shaw, an old gentleman 80 years of age, lives, with his wife on Hernando road, some 10 miles from Memphis. As he was driving out of his yard, on February 9, 1898, on his way to Memphis he noticed a gang of four or five linemen at work stringing wires on the telephone poles of defendant company. The same gang of men had worked the day before on part of his premises, and had cut several limbs and branches off of his trees, and, on passing them, he stopped and said to them that he did not want them to cut any more of his trees. They said they would not, and he continued on his way to Memphis. On his return, in the evening, he learned, and upon examination saw, that a large, healthy gum tree had been cut down, which tree was upon his property, and near by was a newly-erected...