McAmis v. Carlisle

• Decision Date: 10 July 1956
• Citation: 42 Tenn.App. 195,300 S.W.2d 59
• Parties: J. W. McAMIS v. Albert CARLISLE et al.
• Court: Tennessee Court of Appeals

Page 59

300 S.W.2d 59

42 Tenn.App. 195

J. W. McAMIS v. Albert CARLISLE et al.

Court of Appeals of Tennessee, Eastern Section.

July 10, 1956.

Rehearing Denied Sept. 12, 1956.

Certiorari Denied by Supreme Court Feb. 8, 1957.

D. S. Beeler, Rutledge, Francis W. Headman, Knoxville, for plaintiff in error.

J. Carl Lambdin, Jefferson City, W. I. Daniel, Rutledge, for defendants in error.

HOWARD, Judge.

This appeal is from a judgment based on a jury's verdict in favor of the plaintiff, J. W. McAmis, for $500 as damages for the value of an alleged fine bird dog killed by being struck by a truck owned by the defendant, I. V. Contract Truckers, Inc., of Muncie, Indiana, and driven by its employee and co-defendant, Albert Carlisle, also a resident of the State of Indiana.

The accident occurred on one of the main highways in Grainger County, on December 5, 1955, the plaintiff's declaration alleging acts of common law negligence and reckless driving in violation of certain provisions of our State Code.

Only one of the defendants, I. V. Contract Truckers, Inc., has appealed, and of the numerous errors assigned on its behalf, none relate to matters appearing exclusively on the technical record.

It definitely appears that the record is not only in a somewhat irregular and confused condition, but that the bill of exceptions was never authenticated by the signature of the Circuit Judge, and therefore cannot, under our authorities, be considered as a part of the record. T.C.A. § 27-109, Code 1932, 8819; Heald v. Wallace, 109 Tenn. 346, 71 S.W. 80; State v. Hawkins, 91 Tenn. 140, 18 S.W. 114; Jones v. Burch, 71 Tenn. 747; Garrett v. Rogers, 48 Tenn. 321; Caruthers History of a Law Suit, 7th Ed., Sec. 438, p. 477; Tennessee Procedure in Law Cases, Secs. 1903 and 1905, pp. 750, 751; Merriman v. Coca Cola Bottling Co. of McMinnville, Tenn., 17 Tenn.App. 433, 68 S.W.2d 149.

Accordingly, in the absence of a bill of exceptions, it must be conclusively presumed that the evidence justified the verdict of the jury. Adams v. Winnett, 25 Tenn.App. 276, 156 S.W.2d 353; Tennessee Procedure in Law Cases, Sec. 1887, p. 747.

Affirmed at plaintiff-in-error's costs.

McAMIS, P. J., and HALE, J., concur.

On Petition to Rehear.

As indicated by our original opinion, this case was previously heard and judgment was affirmed on the ground that the bill of exceptions filed in this Court had not been authenticated by the trial judge.

The defendant, I. V. Contract Truckers, Inc., has filed petition to rehear, from which it appears that the original bill of exceptions was in fact authenticated by the trial judge, but that the Circuit Court Clerk in preparing the record inadvertently inserted therein a copy instead of the original, and the petition prays that defendant be allowed to suggest a diminution of the record, and that upon the authenticated bill of exceptions, which accompanies the petition, the case be reconsidered.

Although the application comes late, Rule 20, Rules of the Court of Appeals, we think that under the facts stated a rehearing should be allowed. Russell v. Russell, 3 Tenn.App. 232. However, it is not necessary that a writ of certiorari issue to the Clerk of the Circuit Court in order to bring up the authenticated bill of exceptions, since the plaintiff's answer admits that the original accompanying the defendant's petition was duly authenticated by the trial judge and properly filed with the Circuit Court Clerk. Therefore, the authenticated bill of exceptions will be marked filed by the Clerk of this Court, and the petition to rehear is granted.

First, the defendant contends that the trial court erred in refusing to sustain its motion for a new trial because (1) there was no evidence to support the verdict of the jury, (2) the evidence greatly preponderated against the verdict, and (3) the verdict is excessive.

In ascertaining whether there was any material evidence to support the verdict, we are governed by certain rules heretofore established by decisions of the Appellate Courts of this State. We are required to take the strongest legitimate view of all the evidence to uphold the verdict, disregard all evidence and inferences to the contrary, and if we find there was any material evidence to support the verdict, it must be sustained. Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941; D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 901.

The evidence adduced showed that plaintiff on the date of the accident owned a very fine, well trained, female bird dog, 5 1/2 years old, which he had loaned to a friend and neighbor, George DeBord, who at the time of the accident was quail hunting with said dog and a young dog of his own, in a cove near the foot of Clinch Mountain, about 300 yards west of Highway 25E, in Grainger County. After flushing a covey of quail DeBord shot and winged one, which flew east across the highway about 300 yards before falling in an adjacent field. Both DeBord and the plaintiff's dog, a trained retriever, started immediately in pursuit of the wounded bird, the dog crossing the highway over into the field before DeBord reached the highway. On reaching the west side of the highway DeBord not only saw that the dog had retrieved the bird and was returning to him, but he also observed the defendant's truck approaching from the south at about 200 yards away, and realizing that the truck, which was traveling at 55 miles per hour, might strike the dog while she was crossing the highway, he stepped out onto the pavement, and while pointing to the dog gave 2 signals for the truck to either slow down or stop, both of which were ignored by the driver Carlisle. The accident occurred on the eastern edge of the pavement after the dog had started across the highway, but on seeing the approaching truck had turned around and started back in an effort to reach safety, the right wheels of the truck striking her near the hips and crushing her body under its weight.

After the truck struck the dog the driver neither stopped nor slowed down, and to ascertain his identity DeBord got in his car and drove approximately 12 miles before overtaking the truck in the adjoining County of Claiborne. There the driver was arrested and later returned to Grainger County where he plead guilty and paid a fine in one of the Magistrate's Courts on a charge of reckless driving.

The record shows that on the trial of the case both DeBord and Attorney W. I. Daniel, of the Rutledge Bar, testified without objections regarding a statement made by Carlisle to the effect that he was employed by the defendant, I. V. Contract Truckers Incorporated, Attorney Daniel testifying, as follows 'Direct Examination

'By Attorney Lambdin:

'Q. Mr. Daniel, were you present in the jail when Albert Carlisle was brought in after he was arrested for killing this dog? A. I came immediately after he was brought there. Mr. DeBord called me and I came there. I think he was in the jail when I got there, possibly.

'Q. Did you have any conversation with him? A. Yes, I did.

'Q. What did you ask him? A. I,----

'Q. As to who he was employed by? A. I asked him who he was employed by and,----

'Q. What did he say to you? A. He told me that he was employed by I. V. Contract Truckers Incorporated of Muncie, Indiana, and he had me to make certain telephone calls which I will not recount here which would verify the fact.

'Attorney Lambdin: I do not believe that that would be competent testimony in the presence of the Jury, if the Court, Please.

'Q. But he did tell you that he was employed by the I. V. Contract Truckers Incorporated of Muncie, Indiana? A. Yes, sir, he did.

'Attorney Lambdin: Cross examine.

'Cross Examination

'By Attorney Beeler:

'Q. Mr. Daniel, you did call up and get all the information about everything that you could get when he told you, did you not? A. Well, I wouldn't want to say. I guess I did get some information, but I found him to be telling the truth.

'Q. And is it not a fact that you were,--that you told the party that you were talking to that you were representing him and was trying to get him out of jail? A. No, sir, I didn't.'

DeBord further testified that the truck which included a tractor and trailer bore Indiana license plates Nos. 12828 and 29761 respectively, and that on each door of the tractor was painted I. V. Contract Truckers Incorporated, and he further stated that Carlisle denied that he was working for any other concern.

Not only did the evidence show that the name of the defendant was printed on the doors of the truck, a fact sufficient to create an inference of ownership, but there was introduced in evidence by the plaintiff a certificate issued by the Bureau of Motor Vehicles of the State of Indiana showing the defendant's registration of ownership of the truck which, under our Statute, 'shall * * * be prima facie evidence that said vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of his employment.' T.C.A. § 59-1038, Code 1932, Sec. 2702. See also, T.C.A. § 59-1037, Code 1932, Sec. 2701.

While the defendant's President Kenneth B. Iveson admitted defendant's ownership of the truck, he specifically denied that the truck was on defendant's business at the time or that the driver was ever an employee of the defendant. He testified that the truck had been previously leased for 2 years to Donald P. Rohan, d/b/a Yorktown Insulation Company, of Yorktown, Indiana, and that the driver was an employee of said Company. Carlisle neither appeared in his own defense nor as a witness, nor was the alleged lease introduced in evidence.

It is argued on behalf of the defendant that the presumption raised by T.C.A. § 59-1038, Code 1932, Sec. 2702, vanished by reason of the uncontradicted testimony of its president, who testified that the offending truck had been previously leased to a third party for whose benefit the driver was...