McDonald v. Onoh
| Decision Date | 26 April 1989 |
| Citation | 772 S.W.2d 913 |
| Parties | Jessie D. McDONALD, d/b/a McDonald Enterprises, Plaintiff-Appellant, v. Emezie F. ONOH, Defendant-Appellee. 772 S.W.2d 913 |
| Court | Tennessee Court of Appeals |
Jessie D. McDonald, Nashville, pro se.
Alan M. Sowell, Gracey, Ruth, Howard, Tate & Sowell, Nashville, for defendant-appellee.
Plaintiff appealed from the trial court's dismissal of his negligence action following the jury's verdict finding that defendant was not guilty of negligence.
Plaintiff presents four "issues:" (1) "whether the trial judge erred by refusing to allow the accident report to be filed as an exhibit;" (2) "whether the trial judge erred by refusing to allow the cost estimate for repairs to be filed as an exhibit;" (3) "whether the trial judge erred by refusing to instruct the jury on the laws which supported the facts and proposition of theory that was proved at the trial;" and (4) "whether there is evidence to support the jury verdict."
No transcript of the evidence was filed. Plaintiff relies solely on the technical record.
The absence of a transcript or statement of the evidence has a significant effect upon the scope of this Court's review of a jury verdict. In normal circumstances, Tenn.R.App.P. 13(d) directs this Court to review the record to determine whether there is material evidence to support the verdict. Electric Power Bd. v. St. Joseph Valley Structural Steel Corp., 691 S.W.2d 522, 526 (Tenn.1985); Harper v. Watkins, 670 S.W.2d 611, 631 (Tenn.App.1983); Bynum v. Hollowell, 656 S.W.2d 400, 402 (Tenn.App.1983). However, without a transcript or statement of proceedings this Court must presume that every fact admissible under the pleadings was found or should have been found in the appellee's favor. Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn.App.1987); Richmond v. Richmond, 690 S.W.2d 534, 536 (Tenn.App.1985); In re Rockwell, 673 S.W.2d 512, 516 (Tenn.App.1983).
The Tennessee Rules of Appellate Procedure place the responsibility for the preparation of the transcript or a statement of evidence squarely on the shoulders of the parties. The appellant has the primary burden to see that a proper record is prepared on appeal and filed in this Court. Tenn.R.App.P. 24.
Both plaintiff and defendant set forth "facts" in their briefs. These "facts" cannot be considered. They are not a part of the record.
There is nothing in the record which refers to a "cost estimate for repairs." There is nothing in the record to show that the trial court refused "to instruct the jury, on the laws which supported the facts and proposition of theory that was proved at the trial."
We do find in the record an order in which the trial court gives his reasons for excluding the accident report. However, the accident report is not a part of the record and, in any event, the plaintiff concedes that the officer's report was "based solely on the statements given him by plaintiff and defendant."
Police reports are hearsay and are not admissible as evidence. The primary problem with the admissibility of police reports is that the report is hearsay made up of opinion or conclusion not based on personal knowledge. Paine, Tennessee Law of Evidence Sec. 108 (1974); McBee v. Williams, 56 Tenn.App. 232, 238, 405 S.W.2d 668, 671 (1966):
Police reports based upon statements of witnesses are hearsay and are not admissible in evidence. The reasoning behind this rule is that if the officer is present he can testify as to his first...
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