Pankow v. Mitchell

• Decision Date: 26 June 1987
• Court: Tennessee Court of Appeals
• Parties: Robert Lee PANKOW, individually and as Guardian for Robert Lynn Pankow, Plaintiffs/Appellees, v. Bobby MITCHELL, individually and d/b/a B & S Used Cars, Defendant/Appellant.

Page 293

737 S.W.2d 293

Robert Lee PANKOW, individually and as Guardian for Robert

Lynn Pankow, Plaintiffs/Appellees, v. Bobby MITCHELL, individually and d/b/a B & S Used Cars,

Defendant/Appellant.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

June 26, 1987.

Application for Permission to

Appeal Denied by Supreme Court

Sept. 28, 1987.

Mark Fishburn, Joe Bednarz, Bednarz & Fishburn, Nashville, for plaintiffs/appellees.

John T. Gwin, Mt. Juliet, for defendant/appellant.

OPINION

KOCH, Judge.

This appeal involves an action for damages caused by the explosion of a used car's radiator. The purchaser of the car filed the action in the Circuit Court for Davidson County against the dealer who sold him the car alleging that the dealer's negligent repair of the radiator had caused it to explode. The dealer denied liability insisting that the radiator had been altered after he sold the car and that the injuries sustained by the purchaser and his son were the result of their own negligence. During the trial, the defendant attempted to introduce a complaint the purchaser and his son had filed against another defendant. The trial court held that this complaint was hearsay and declined to admit it. Thereafter, the jury returned a verdict for the purchaser and his son for compensatory and punitive damages.

The used car dealer has perfected this appeal. He insists that the trial court erred by refusing to permit him to introduce a copy of the complaint the plaintiffs had filed in an earlier proceeding. We have concluded that the trial court's exclusion of this evidence was error, and, therefore, we vacate the judgment and remand the case for a new trial.

I.

Robert Lee Pankow purchased a used 1974 Hornet station wagon from Bobby Mitchell in September, 1982. He returned the vehicle three days later complaining that the transmission hesitated. Mr. Mitchell instructed one of his mechanics to test drive the car. The mechanic damaged the vehicle's radiator during the test drive.

Mr. Pankow agreed to accept another used car in exchange for the 1974 Hornet. However, he returned this car to Mr. Mitchell a few days later complaining that its brakes were faulty. Mr. Pankow told Mr. Mitchell that he wanted the 1974 Hornet. Mr. Mitchell told him that he had been unable to locate a Hornet radiator to replace the one that had been damaged several days earlier. However, he told Mr. Pankow that his mechanic could install another radiator which would be satisfactory. Mr. Pankow agreed.

Mr. Pankow returned later in the day to pick up the Hornet station wagon. Mr. Mitchell told him that the radiator had been repaired. He lifted the hood of the car and showed Mr. Pankow where the radiator had been secured to the top of the engine compartment with wire. Mr. Pankow accepted the car without inspecting it further.

Two days later, Mr. Pankow noticed a large amount of water under the station wagon. He and his seventeen year old son drove the car to a service station owned by his brother-in-law, George Kopulos. Mr. Kopulos drove the car into the garage's repair bay and placed it on an hydraulic lift. The car's radiator hose burst soon after it was raised on the lift.

Mr. Pankow and his son were hit by the pressurized hot water from the radiator. Mr. Kopulos described how the radiator hose "flipped around like a wild piece of garden hose" when the faulty fitting broke loose. Mr. Pankow received burns on his right shoulder and both arms. His son received second degree burns over twenty-eight percent of his body requiring him to spend approximately three weeks in the hospital. The son's hospital and medical bills exceeded $11,000.

Mr. Pankow filed an action against Mr. Mitchell in the Circuit Court for Davidson County on behalf of himself and his son. Approximately a year later, while the action against Mr. Mitchell was pending, Mr. Pankow and his son filed a second action in the Circuit Court for Robertson County against Mr. Kopulos. They dismissed this action voluntarily three months after it was filed pursuant to Tenn.R.Civ.P. 41.

The action against Mr. Mitchell was tried for the first time in the Third Circuit Court for Davidson County in March, 1985. The jury's verdict for the plaintiffs was set aside when the trial court granted Mr. Mitchell's motion for a new trial. The case was thereafter transferred to the Sixth Circuit Court for Davidson County where it was tried for the second time in February, 1986.

Mr. Mitchell had two theories of defense in this proceeding. First, he claimed that the radiator had been altered after he had sold the car to Mr. Pankow. Second, he asserted that Mr. Pankow and his son were contributorily negligent because they were standing underneath the car when the radiator hose burst. Mr. Pankow and his son insisted that they had not altered the radiator after Mr. Mitchell sold them the car. They also insisted that they were not standing underneath the car at the time of the accident.

At trial, Mr. Mitchell sought to introduce the complaint Mr. Pankow and his son had filed against Mr. Kopulos in the Circuit Court for Robertson County. This complaint alleged:

4. That on the aforementioned date, while the vehicle was on the hydraulic jack, the Plaintiffs and the Defendant were all underneath the automobile when suddenly a hose on the automobile burst, and scalding water fell on both Plaintiffs, injuring them severely.

5. That the Defendant was negligent by allowing the Plaintiffs to enter the service area and get underneath the vehicle.

6. That the Defendant violated the standard of care required of service station operators, by failing to keep the Plaintiffs out of the service area, although he was fully aware of the dangers presented thereby.

The trial court conducted a hearing out of the presence of the jury concerning the admissibility of this complaint. ¹ It determined that the Robertson County complaint was inadmissible hearsay because it was not verified under oath.

While the jury was still out, the trial court informed counsel for Mr. Mitchell that he could attempt to impeach Mr. Pankow's son's testimony using the allegations in the Robertson County complaint as a prior inconsistent statement. Counsel for Mr. Mitchell attempted to do so; however, Mr. Pankow's son denied any knowledge of the filing of this complaint because he "was in the hospital." ² Upon hearing this statement, the trial court stated: "That kind of ends that line of questioning." The trial proceeded without the jury ever hearing about the Robertson County complaint or its contents.

II. Allegations in Pleadings as Admissions

An admission is an oral or written extrajudicial declaration made by or attributable to a party. Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965). It is admissible against the party making it both as substantive evidence and for the purpose of impeachment. Goodman v. Balthrop Construction Co., 626 S.W.2d 21, 25 (Tenn.Ct.App.1981); Puckett v. Laster, 56 Tenn.App. 66, 74-75, 405 S.W.2d 35, 39 (1965). See also 31A C.J.S. Evidence § 317, at 808-09 (1964).

An extrajudicial declaration need not be made by the party himself in order to be an admission. An agent's declaration may be attributable to the principal if the agency relationship existed before the declaration was made and if the agent was acting within the scope of his authority. Cobb, Welsh & Co. v. Johnson, 34 Tenn. (2 Sneed) 73, 80 (1854); Forde v. Fisk University, 661 S.W.2d 883, 886 (Tenn.Ct.App.1983); Thurmer v. Southern Railway Co., 41 Tenn.App. 354, 363-64, 293 S.W.2d 600, 604 (1956). See also 4 J. Wigmore, Evidence in Trials at Common Law § 1078, at 176 (Chadbourn Rev.1972) and D. Paine, Tennessee Law of Evidence § 56, at 62-63 (1974).

An attorney is the agent of his client for the management of the legal affairs he has been retained to handle. Thus, an attorney's factual statements made on a client's behalf in a letter or during pretrial proceedings or the trial itself have been found to be admissions. Garland v. Seaboard Coastline Railroad Co., 658 S.W.2d 528, 531 (Tenn.1983) (during hearing on pretrial motion); Pewitt v. Pewitt, 192 Tenn. 227, 241-42, 240 S.W.2d 521, 527 (1951) (during trial); Wilkerson v. Williams, 667 S.W.2d 72, 78 (Tenn.Ct.App.1983) (letter).

Pleadings prepared and filed by counsel hired by a party are prima facie regarded as being authorized by the party. Thus, factual statements contained in pleadings filed on behalf of a party may be considered as admissions. See E. Cleary, McCormick's Handbook of the Law of Evidence § 265, at 783-84 (3d ed. 1984). Factual statements in pleadings are conclusive against the pleader in the proceedings in which they were filed until they have been amended or withdrawn. John P. Saad & Sons, Inc. v. Nashville Thermal Transfer Corp., 642 S.W.2d 151, 152 (Tenn.Ct.App.1982). While they lose their conclusive character once they have been amended or withdrawn, they continue to be evidentiary admissions which may be refuted or explained by the party against whom they are used.

In the same manner, statements contained in pleadings filed in other actions may also be used as evidentiary admissions as long as they are inconsistent with the party's present contentions. Williams v. Union Carbide Corp., 790 F.2d 552, 555-56 (6th Cir.1986). See also E. Cleary, McCormick's Handbook of the Law of Evidence § 265, at 784 (3d ed. 1984); 4 J. Wigmore, Evidence in Trials at Common Law § 1066, at 80 (Chadborn Rev. 1972); 2 S. Gard, Jones on Evidence § 13:40, at 503 (6th ed. 1972); 29 Am.Jur.2d Evidence § 696 (1967). These admissions are not conclusive. However, they may be received into evidence against the pleader on the trial of another action to which he is a party as long as the statement is relevant and material to the issues being tried. Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So.2d 1233, 1238 (Fla.Dist.Ct.App.1986); Bruce E.M. v. Dorothea...