Pennington v. General Motors Corp.

• Decision Date: 28 July 1961
• Citation: 49 Tenn.App. 240,354 S.W.2d 479
• Parties: Ed PENNINGTON and Wife, Mary Sue Pennington, v. GENERAL MOTORS CORPORATION and J. H. Dowling, d/b/a Dowling Chevrolet Co.
• Court: Tennessee Court of Appeals

Page 479

354 S.W.2d 479

49 Tenn.App. 240

Ed PENNINGTON and Wife, Mary Sue Pennington, v. GENERAL MOTORS CORPORATION and J. H. Dowling, d/b/a Dowling Chevrolet Co.

Court of Appeals of Tennessee, Middle Section.

July 28, 1961 Certiorari Denied by Supreme Court March 7, 1962.

Jerry Colley, Columbia, for plaintiff.

Frank Gorrell, Jim Bass, Nashville, J. Dawson Frierson, Jr., Pride Tomlinson, Jr., Columbia, for defendant.

HUMPHREYS, Judge.

This is an appeal in error from a judgment of the Circuit Court of Maury County dismissing plaintiffs' suit for damages for breach of warranty, entered on a verdict directed by the trial judge in favor of defendants.

Plaintiffs sued defendants for breach of warranty, express or implied, made in connection with the purchase by plaintiffs of a Chevrolet automobile. Plaintiffs alleged the warranty was breached in that the automobile continuously gave mechanical trouble of a major sort from the time it was purchased. That, although they had carried it back time and again to be repaired, so that they had been deprived of its use a total of approximately forty days in the first year, defendants had not been able to repair the automobile. At the trial, the only witness plaintiffs were permitted to introduce, was plaintiff Ed Pennington. After Pennington had testified substantially as alleged in the declaration, he testified further that the last time the automobile broke down he declined a request of defendants that he return the automobile for repairs, and parked the automobile in his backyard where it had remained ever since. Whereupon, the trial judge directed a verdict in favor of defendants, stating that plaintiffs could not recover since they had declined to again return the automobile for repair and had thus failed to mitigate their damages as required by law. Plaintiffs have appealed to this Court and assigned errors.

Defendants have moved that the appeal be dismissed and the judgment below affirmed (1) because plaintiff Mary Sue Pennington has not filed an appeal bond and has not perfected her appeal; (2) the bill of exceptions was not filed with the clerk of the Circuit Court of Maury County, Tennessee as required by Sec. 27-111 T.C.A.; (3) the bill of exceptions does not affirmatively show it contains all the evidence, and; (4) the assignments of error were not filed within the time period required by the rules of this Court. We must deal with this motion before we can come to a consideration of the appeal.

With respect to the ground of the motion based on the condition of the appeal bond, it appears plaintiffs regularly prayed an appeal, which was granted. That well within the time limited they filed an appeal bond, conditioned as required by law. That by mistake or inadvertence the blank spaces in the appeal bond were filled in so as to show only that Ed Pennington was appealing in the suit, and with respect to only defendant, General Motors Corporation. The plaintiffs have moved the Court to amend the appeal bond by inserting the name of James H. Dowling, d/b/a Dowling Chevrolet Company as a defendant and the name of Mary Sue Pennington as plaintiff. This motion is resisted on the authority of England v. Young, 155 Tenn. 506, 296 S.W. 14. That case involved a situation where no appeal bond at all was filed in the time limited by statute and the Court said one could not be filed contrary to the statute. However, in the opinion in that case the Supreme Court was careful to say 'We do not, however, have under consideration an effort to amend or correct a defective bond or oath filed within the statutory period. To such a case other principles would be applicable.' 155 Tenn. 512, 296 S.W. 16. We think it is clear on the implications of this statement, and on the cases discussed and distinguished in the opinion that, where a defective bond has been filed, it lies within the power of this Court and is its duty under Secs. 20-1501 and 20-1502, 20-1504, T.C.A. to permit the amendment of the appeal bond as attempted in this case.

With respect to the ground of the motion that the bill of exceptions does not affirmatively show all of the evidence introduced in the cause is contained in the bill of exceptions the record shows the following: Only one witness was introduced, plaintiff Ed Pennington. There is an order in the transcript of the technical record on page 142, which recites that after the testimony of the plaintiff Ed Pennington, the Court, upon consideration of the issues raised, did instruct the jury to return a verdict in favor of the defendants and that this was done. At the conclusion of the testimony of the plaintiff and at the end of the trial, the bill of exceptions contains this, '(Whereupon Court adjourned at 2:25 P.M.) (END OF THE CASE.)' Thereafter, the bill of exceptions is approved for entry by counsel for all of the parties in the case and signed by the Circuit Judge. We think on the authority of Grider v. Fiske, 174 Tenn. 243, 124 S.W.2d 709, this ground of the motion must be disallowed. In view of the minute entry and the approval of the bill of exceptions for entry by counsel for all parties, and its subsequent authentication by the trial judge, we think it clearly comes within the Grider v. Fiske case, supra, and affirmatively shows it contains all the evidence.

The motion to strike the assignments of error because not filed within the time required by our rules is overruled on the authority and for the same reasons mentioned in Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245. There is no showing of prejudice, harm, or even of inconvenience on the part of movants because of appellant's noncompliance with this rule. By way of explanation appellant states the delay was unavoidable.

This brings us to a consideration of the motion to dismiss or affirm because there is no showing the bill of exceptions was ever filed with the clerk of the Circuit Court of Maury County, Tennessee as required by Sec. 27-111 T.C.A. This motion is based on the fact the bill of exceptions as contained in the transcript sent to this Court contains no notation it was ever filed by the Circuit Court Clerk of Maury County. Plaintiffs meet this motion by suggesting a diminution of the record and make a motion that certiorari issue to the end that a perfect transcript of the record may be filed in this cause on the ground that, as is shown by the affidavit of the Clerk of the Circuit Court for Maury County, Tennessee, the bill of exceptions was filed in her office between the dates February 7th and...