Hemmer v. Tennessee Elec. Power Co.

• Decision Date: 27 January 1940
• Citation: 139 S.W.2d 698,24 Tenn.App. 42
• Parties: HEMMER v. TENNESSEE ELECTRIC POWER CO. et al. (two cases).
• Court: Tennessee Court of Appeals

139 S.W.2d 698

24 Tenn.App. 42

HEMMER v. TENNESSEE ELECTRIC POWER CO. et al. (two cases).

Court of Appeals of Tennessee, Middle Section.

January 27, 1940

Certiorari Denied by Supreme Court May 18, 1940.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Actions by Henry Hemmer and Delmas Hemmer against the Tennessee Electric Power Company and another for damages from collision of street car with automobile. The actions were tried together by consent. Judgments for defendants, and plaintiffs appeal in error.

Affirmed.

Jas. C R. McCall, Jr., and John T. McCall, both of Nashville, for plaintiffs in error.

Aust McGugin & Cochran, of Nashville, for defendants in error.

FAW Presiding Judge.

The above-styled two cases, brought and docketed separately below, were, by consent, tried together to a jury in the Circuit Court of Davidson County, and have been brought to this Court in one transcript, with a single bill of exceptions, and tried together here.

Henry Hemmer was the plaintiff in one of the two cases, and his adult son, Delmas Hemmer, was the plaintiff in the other case. The defendants in each of the two cases were the same, viz: The Tennessee Electric Power Company, a corporation, and H. E. Ashley.

It is admitted on the record that, about 6:30 o'clock P. M. on November 15, 1937, a street car owned by defendant Power Company and operated at the time by defendant Ashley (who was then employed by defendant Power Company as a motorman to operate said street car) collided with an automobile, owned and driven by plaintiff Delmas Hemmer, in which plaintiff Henry Hemmer was riding as the guest of his said son, and that, as a result of the collision, each of the plaintiffs suffered serious injuries to his person, and the automobile was "wrecked" and rendered practically worthless.

Averring that his injuries were proximately caused by negligence of defendant Ashley, in the particulars stated in his declaration, Henry Hemmer sued the two defendants named for $15,000 as damages for his personal injuries; and, upon the same averments of negligence of defendant Ashley, Delmas Hemmer sued the two defendants for $3,000 as damages to his person and his automobile.

To each of the declarations and defendants filed a plea of the general issue--not guilty--and the cases were submitted to a jury upon evidence on behalf of the plaintiffs and defendants, respectively, argument of counsel, and the charge of the Court; whereupon the jury found "the issues joined in favor of the defendants", and the Court rendered a separate judgment in each of the two cases dismissing the plaintiff's suit and adjudging the costs against the plaintiff.

In due season, each of the plaintiffs filed a motion for a new trial which was overruled by the Trial Court, and the plaintiffs, separately, excepted to the action of the Court and prayed an appeal in the nature of a writ of error to this Court, which was granted by the Trial Court and perfected by the respective plaintiffs, and the case has been heard by this Court on the transcript of the record, assignments of error, briefs, and oral arguments of counsel at the bar.

For convenience, we will continue to refer to Henry Hemmer and Delmas Hemmer as plaintiffs, and to the Tennessee Electric Power Company and H. E. Ashley as defendants.

It is not claimed for plaintiffs, either through an assignment of error or otherwise, that there is no material evidence to support the verdict of the jury; but it is urged that there were sharp conflicts in the testimony of the witnesses, with respect to controlling and determinative facts, which conflicts emphasize the asserted materiality and prejudicial effect of certain rulings of the Court below, and of certain instructions of the Trial Judge to the jury.

It is insisted that there was material and substantial evidence before the jury which would have sustained a verdict in favor of each of the plaintiffs, but it is, in effect, conceded by learned counsel for plaintiffs that it is not within the province of this Court to determine the comparative weight of the evidence for the parties, respectively, and that the verdicts of the jury in these cases will not be disturbed unless there was error prejudicial to the plaintiffs in the conduct of the trial below.

In the consideration and disposition of the assignments of errors it must be borne in mind that we are expressly forbidden, by statute, to set aside the verdict or judgment, or grant a new trial, "on the ground of error in the charge of the judge to the jury *** or for any error in any procedure in the cause", unless, in our opinion, "after an examination of the entire record in the cause, it shall affirmatively appear that the error complained of has affected the results of the trial." Code, section 10654.

The plaintiffs' first assignment of error is that the Trial Court erred "in failing and refusing to give to the jury the additional instruction requested by the plaintiffs after the jury had reported that they could not agree upon a verdict, and before the verdict was arrived at", which requested instruction is copied into the assignment, as it appears in the record; and we here quote an excerpt from the bill of exceptions (which immediately follows the recital therein of the charge of the Court to the jury and the direction of the Court to the jury to take the case and consider of their verdict), which excerpt discloses the circumstances under which the request was made and refused, and contains the requested instruction, as follows:

"The jury here retired, and deliberated upon their verdict for about two hours, and at the end of this time returned to the courtroom and announced that they were unable to agree upon a verdict. Upon questioning by the trial judge, the jurors indicated that they might be able to agree, upon further discussion, and they were authorized again to retire. And the plaintiffs thereupon moved the Court to give to the jury the following additional instruction for their consideration:

"'I charge you Gentlemen of the Jury, that where the conduct of the Defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the Defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of injury. The fact that one has put himself in a place of danger is never an excuse for another purposely or recklessly to injure him.

"'If, therefore, you should find that the defendant Ashley discovered, or saw the automobile containing the plaintiffs' motionless upon the track in front of the street car in time by the use of ordinary care to avoid striking the automobile, and that he did not use the means at hand so as to avoid striking the automobile, he is chargeable with reckless injury, and the contributory negligence of the plaintiffs, if any, would not relieve him of liability for the injury inflicted.'

"The Court overruled this motion, and the plaintiffs thereupon duly excepted to this action of the Court.

"After further deliberation, the jury again returned to the courtroom, and after the polling of the jury had been waived, returned a verdict in favor of the defendants in each case."

The record does not disclose the ground or grounds upon which the learned Trial Judge declined to charge the instruction thus requested for the plaintiffs, and if his ruling was proper, in the circumstances, under recognized rules of law and practice, it will not be disturbed.

It is, we think, apparent that the requested instruction was not seasonably presented to the Trial Judge, but came too late, and, for that reason, there was no error in his refusal to give it in charge to the jury.

In some jurisdictions special requests for instructions to the jury must be presented to the court at the close of the evidence, in others at the close of the argument of counsel, and in still others at any time before the principal charge is given to the jury; but in Tennessee the established rule is that such requests must be presented to the Trial Judge after the principal charge has been given, and not previous thereto. This rule is too well settled to need citation of authority.

It is likewise the general rule, in Tennessee and elsewhere, that such requests for special instructions must be presented to the Trial Judge before the jury retires to consider of their verdict.

"If no request is made for specific charges after the general charge has been delivered, the presumption is that the charge is satisfactory to the parties." Roller v. Bachman, 5 Lea 153, 159.

And it is not reversible error for the Trial Judge to refuse to call the jury back for special instructions requested by a party to the cause. Williams v. Miller, 2 Lea 405, 412, 413; Bowling v. Railroad Co., 15 Lea 122, 124, 125; Swaggerty v. Caton, 1 Heisk. 199, 202; Claxton v. Claxton, 16 Tenn.App.399, 401, 64 S.W.2d 854; Tennessee Procedure in Law Cases (Higgins and Crownover), section 1460; State v. Barbee, 92 N.C.820,824; Cady v. Owen, 34 Vt. 598, 602; Garrity v. Higgins, 177 Mass. 414, 58 N.E. 1010, 1011; Sovereign Camp, W. O. W. v. Hutchinson, 217 Ala. 71, 114 So. 684, 686; Pybus v. Goldstein, 45 Ga.App. 669, 165 S.E. 866; Kellogg v. French, 15 Gray, Mass., 354, 357; 11 Ency. Pl. & Pr. Page 239; 4 C.J.S. Appeal and Error, page 629, § 307; 64 C.J. 856; 38 Cyc. page 1698; Abbott's Civil Jury Trials, 3rd Ed., page 730.

In Williams v. Miller, supra, defendant's counsel (after the jury had been charged and had retired to consider of their verdict) tendered to the Trial Judge a series of written...