Stevens v. Moore

• Decision Date: 27 January 1940
• Citation: 139 S.W.2d 710
• Parties: STEVENS v. MOORE.
• Court: Tennessee Supreme Court

139 S.W.2d 710

STEVENS v. MOORE.

Court of Appeals of Tennessee, Middle Section.

January 27, 1940.

Certiorari Denied by Supreme Court May 18, 1940.

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

Action by Pauline Stevens against R. T. Moore, doing business as the Economy Dry Cleaners, for damages to rug. From a judgment for defendant, plaintiff appeals in error.

Reversed and remanded

Chas. D. Fox, of Nashville, for plaintiff in error Stevens.

Levine & Levine, of Nashville, for defendant in error Moore.

FAW, Presiding Judge.

This action originated in the Court of General Sessions of Davidson County on April 4, 1938, wherein Mrs. Pauline Stevens sued R. T. Moore, doing business as Economy Dry Cleaners, and in the warrant then issued the plaintiff's cause of action was stated as follows:

"a civil action brought by Mrs. Pauline Stevens, for negligence in the dry cleaning of one 9×12 American Oriental rug of the approximate value of $85.00, said rug being sent during May, 1937 and not returned until about February, 1938, by the defendant in a ruined condition, under Five Hundred Dollars."

The Court of General Sessions, Part One, gave judgment for the plaintiff and against the defendant for $50 and cost of suit. Thereafter, in due season, the case was (pursuant to Section 6 of chapter 12 of the Private Acts of 1937) removed by certiorari to the Circuit Court of Davidson County, where it was tried to a jury, and the jury found the issues in favor of the defendant, and the Court dismissed the plaintiff's suit at her cost.

The Trial Judge overruled a motion for a new trial seasonably made on behalf of the plaintiff and granted an appeal in the nature of a writ of error prayed for by the plaintiff, which appeal was perfected by the plaintiff, and she has assigned errors in this Court.

For convenience, we will continue to refer to Mrs. Pauline Stevens as plaintiff and to R. T. Moore, etc., as defendant.

Plaintiff's first assignment of error is, that there is no evidence to support the verdict.

It appears from the bill of exceptions that, at the outset of the trial below, "the warrant was read to the court and jury and the defendant entered an oral plea of not guilty."

We have hereinbefore stated the plaintiff's cause of action, as set forth in the warrant. The Act creating and establishing the Court of General Sessions of Davidson County (Private Acts of 1937, chapter 12) provides, in section 6 thereof, among other things, that "the rules of pleading and practice" and "forms of writs and process * * * shall be same as of Justices of the Peace". It follows that in proceedings in the Court of General Sessions of Davidson County, as in proceedings before Justices of the Peace, the strictness and precision in pleading required in courts of record will not be enforced. Memphis St. Railroad v. Flood, 122 Tenn. 56, 67, 113 S.W. 384.

But the warrant "must contain a brief statement of the cause of action sufficient to give the defendant reasonable notice of what he is called upon to answer." Memphis St. Railroad v. Flood, supra, 122 Tenn. page 78, 113 S.W. page 389. It is a necessary corollary of the rule last stated that, if the plaintiff complies therewith, he (or she) must recover, if at all, upon the cause of action stated in the warrant; and, as the burden of proving her alleged cause of action, in the instant case, was primarily upon the plaintiff, it becomes necessary, in order to dispose of plaintiff's first assignment of error, supra, for us to ascertain whether there was any material evidence before the jury which reasonably tended to prove that the defendant dry-cleaned the plaintiff's rug, described in the warrant, in a negligent manner, and, as the proximate result of such negligence of defendant, plaintiff's said rug was injured and damaged. Unless there was such evidence tending to support plaintiff's cause of action, the verdict for defendant was proper, whether there was or not affirmative evidence tending to support defendant's plea of "not guilty".

However, if it should be found that there was material evidence tending to support plaintiff's alleged cause of action, it then becomes necessary to inquire whether there was countervailing evidence which, if accepted by the jury as the truth of the case, was sufficient to support the verdict of the jury in favor of the defendant.

The evidence introduced by the plaintiff consisted of the testimony of herself and of her mother, Mrs. A. S. Kimbro. The evidence introduced for the defendant consisted of the testimony of defendant's wife, Mrs. R. T. Moore, and Frank Muller, an employee of the defendant. The rug in controversy and two small rugs were put in evidence as exhibits to the testimony of some of the witnesses, and have been sent up with the record to this Court.

Mrs. Pauline Stevens, the plaintiff, testified that she was the owner of the American Oriental rug, size 9'×12', which she had purchased in Indiana the latter part of 1933 or the first part of 1934, paying $85 for it; that she had permitted her mother, Mrs. A. S. Kimbro, to use the rug, and in the month of May, 1937, while plaintiff was in New York, her mother sent the rug to defendant's place of business to be cleaned; that plaintiff returned to Nashville in the month of November, 1937, and then learned that the rug had not been returned by the defendant; that plaintiff and her mother sought, by repeated calls on the telephone to defendant's driver and to defendant's place of business, and by repeated personal calls at defendant's place of business, to procure the return of the rug to plaintiff's home, and was assured "that the rug would be delivered right away", but the rug was not returned to plaintiff's home until a day in February, 1938, at which time defendant's driver, Frank Muller, brought it in, and it was found to be "spotted, faded and the colors had run, the blue figures into the red and vice versa."

Plaintiff further testified that when the rug was brought back to her home in the condition above stated she refused to accept it, and the defendant's driver, Frank Muller, suggested that the rug could be dyed by the defendant and the dye would cover up the pattern, and the fading and running of the colors would be covered by the "dyeing" and come out satisfactory; that plaintiff agreed to the dyeing of the rug on the condition that it would be solid in color, thoroughly covering the pattern so that it would not show and that the work would be satisfactory; that Muller, defendant's driver, told plaintiff at that time "that it would be all right, that they did it all the time."

Plaintiff stated further that the rug was then taken back to defendant's place of business and dyed and then brought back to plaintiff, but plaintiff found, on examination of the rug, "that the pattern showed through very plainly, the dyeing was not done well, and the rug was even worse than when it had been brought back from cleaning"; that plaintiff and her mother at that time complained very strongly to the driver about the condition of the rug, and the driver stated to them that he would not have a rug like it in his home, and suggested to them that they let him take it back and have it dyed a second time; that plaintiff permitted the driver to take the rug back to defendant and it was dyed a second time and returned, but after such second dyeing it was found that "the dye was in spots and all the pattern and colors showed through the second dyeing"; that plaintiff refused to accept the rug in its then condition and the driver carried it back to the defendant's place of business; that later the driver brought it back another time and came to the door of plaintiff's home and told her and her mother that he had the rug in the truck but did not feel like bringing it in because he knew plaintiff would not accept it.

Plaintiff stated further that the rug had been cleaned twice before by the American Dry Cleaners, of Nashville, Tennessee; that the last cleaning by the American Dry Cleaners had been about a year before it was sent to defendant's place of business; that in each of the two times it came back from the American Dry Cleaners in perfect condition and none of the colors had run or faded, and there were no spots on the rug; that the cleaning process of the American Dry Cleaners made the rug come back in "a condition like new."

Plaintiff stated further that the rug was not worn, the pile of the rug was still thick and full, without any spots being worn in it; that the rug had been used for short periods of time since it had been purchased in the latter part of 1933 or the first part of 1934; that it had been stored until the summer of 1935, when it was used in the home of plaintiff's mother, where plaintiff lived, up until May, 1937, when it was sent to the defendant's place of business for cleaning, and this period of two years was nearly all the use that the rug had had; that in May, 1937, when the rug was sent to the defendant's place of business for dry cleaning, plaintiff's mother's home was being repapered, cleaned and redecorated, and that was the occasion for having the rug cleaned.

Plaintiff stated further that she had testified in the General Sessions Court, and had been present when the defendant, R. T. Moore testified, and he testified that he was not an expert, and stated that in the General Sessions Court her attorney had taken a handkerchief and rubbed it on the rug and the dye from the rug had come off on the handkerchief.

Plaintiff also testified, without objection, that she had also heard Mr. H. B. Franklin under oath on behalf of the defendant, in the General Sessions Court; that said Franklin testified as an expert (he being employed by McEwen's Laundry) "that the colors in a rug should not run if the rug had been dry-cleaned before and the colors during the first cleaning had not run, and had heard him testify as to...