Wilson v. Tranbarger

• Decision Date: 09 June 1965
• Parties: , 218 Tenn. 208 Mrs. Orfie WILSON, widow of Charles Daniel Wilson, Deceased, Plaintiff-in-Error, v. Hubert TRANBARGER, d/b/a Tranbarger Trucking Company, Defendant-in-Error. William H. CATE, Administrator of the Estate of Nathan Jerome Pierce, Plaintiff-in-Error, v. Hubert TRANBARGER, d/b/a Tranbarger Trucking Company, Defendant-in-Error.
• Court: Tennessee Supreme Court

Page 449

402 S.W.2d 449

22 McCanless 208, 218 Tenn. 208

Mrs. Orfie WILSON, widow of Charles Daniel Wilson, Deceased, Plaintiff-in-Error, v. Hubert TRANBARGER, d/b/a Tranbarger Trucking Company,

Defendant-in-Error.

William H. CATE, Administrator of the Estate of Nathan

Jerome Pierce, Plaintiff-in-Error, v. Hubert TRANBARGER, d/b/a Tranbarger Trucking Company,

Defendant-in-Error.

Supreme Court of Tennessee.

June 9, 1965.

Rehearing Denied Sept. 7, 1965.

Second Motion for Rehearing Denied Nov. 3, 1965.

Jenkins & Jenkins, Knoxville, Smoot, Wright & Cate, Kingsport, Aubrey Jenkins, Knoxville, Shelby W. Smoot, Kingsport, of counsel, for plaintiffs in error.

Wilson, Worley & Gamble, Kingsport, for defendant in error.

CHATTIN, Justice.

These lawsuits grew out of a collision between a 1955 Oldsmobile owned and operated by Etta Mae Pierce, Deceased, in which Charles Daniel Wilson and Nathan Jerome Pierce, both deceased, were riding; and a truck loaded with gravel owned by Hubert Tranbarger, doing business as Tranbarger Trucking Company, which was at the time operated by Shurrals Barker on the business of the owner as his employee.

All three of the occupants of the car were killed in the accident. The accident occurred on October 20, 1962. There have been two trials. These two cases were consolidated with a third case in which the Administrator of the Estate of Etta Mae Pierce, Deceased, had sued the defendant, Tranbarger. The jury returned verdicts in substantial amounts in favor of the two plaintiffs herein, but returned a verdict of not guilty in the third case of the Administrator of the Estate of Etta Mae Pierce, Deceased.

Defendant filed motions for a new trial which the trial court granted in the two cases which we have under consideration. Although defendant listed nineteen grounds in each of his motions, the trial court sustained only four and overruled the remaining grounds.

Plaintiffs preserved a wayside bill of exceptions. The second trial resulted in verdicts for defendant, which were approved by the trial judge and judgments entered thereon.

Plaintiffs perfected an appeal to the Court of Appeals as to both trials.

When the suits reached the Court of Appeals, defendant filed a motion to strike the wayside bill of exceptions on the ground it was incomplete in that some twenty-nine exhibits had been used in the first trial and none of these exhibits had been authenticated by the trial judge and ordered filed as a part of the wayside bill of exceptions.

The Court of Appeals sustained this motion and affirmed the action of the trial judge in granting a new trial. That Court then proceeded to consider the record and assignments of error at the second trial and affirmed the judgments in favor of defendant.

We have granted plaintiffs' petition for certiorari.

Plaintiffs have assigned as error the action of the Court of Appeals in striking the wayside bill of exceptions and affirming the action of the trial judge in granting the new trial.

It is first urged in support of the assignment that when the trial judge signed the wayside bill of exceptions which contained the statement, 'these were all of the proceedings had and evidence introduced in the trial of these cases,' he, in fact, authenticated each of the exhibits because the court reporter had marked 'Ex,' the number of the exhibit and the date thereon; and the exhibits could be traced to their proper places in the bill of exceptions by the number and date of each.

None of the exhibits used in the first trial are attached to the wayside bill of exceptions. There are some sixteen items in a large brown envelope consisting of photos, plats, criminal warrants, and other documents upon which is written 'Ex,' a number and a date. None of these exhibits show they were filed by the Clerk in the trial court. Nor do any of them bear any identification or authentication by the trial judge. Likewise, there is nothing on the envelope containing them to show they were ever ordered filed collectively by the trial judge nor that they were filed by the clerk of that court. It was the duty of the trial judge to examine the exhibits and to authenticate each in such a manner to make their identity certain and order them filed.

'In order to make extraneous matters a part of the record, they must be examined by the trial judge, and authenticated by his signature in such manner as to make their identity certain. Parts of a bill of exceptions may be in the form of exhibits to be inserted in their proper places according to the directions given therein; but all of the bill of exceptions, whether in one or more documents, must be present and examined when it is signed by the judge, and the several papers to be copied must be so marked as exhibits that no mistake in their identity can be made, and it must not be left to the clerk, or other person, to determine what constitutes any part of the record. When extrinsic matters, which can only be made part of the record by bill of exceptions, appear in the transcript without proper authentication, they cannot be considered by an appellate court, but will be stricken out when called to its attention. Battier v. State, 114 Tenn. 563, 86 S.W. 711; Railway & Light Co. v. Marlin, 117 Tenn. 698, 99 S.W. 367; Wynne v. Edwards, 7 Humph. 418, 26 Tenn. 418, 419; Ivy v. Bain, 2 Tenn.Civ.App. 626; Cosmopolitan Life Insurance Co. v. Woodward, 7 Tenn.App. 394; Hayes & Chunn v. Holland, 11 Tenn.App. 490.' Frierson v. Smithson, 21 Tenn.App. 591, 113 S.W.2d 778 (1937).

'It is settled by repeated decisions of our Supreme Court that the contents of a bill of exceptions cannot be considered for any purpose by appellate court unless it affirmatively appears that it was authenticated by the trial judge and filed with the clerk within the time allowed by law. Jackson v. Bell, 143 Tenn. 452, 455, 226 S.W. 207; Hinton v. Sun Life Insurance Co., 110 Tenn. 113, 118, 72 S.W. 118; Cronan v. State, 113 Tenn. 539, 542, 82 S.W. 477, Bundren v. State, 109 Tenn. 225, 230, 70 S.W. 368; Wright v. Redd Bros., 106 Tenn. 719, 721, 63 S.W. 1120; Jones v. Moore, 106 Tenn. 188, 190, 61 S.W. 81; Muse v. State, 106 Tenn. 181, 183, 61 S.W. 80.

'This rule, of course, applies to the entire bill of exceptions, and, therefore, in order to make exhibits a part of the bill of exceptions it must affirmatively appear that they were authenticated as such by the trial judge and filed by the clerk within the prescribed period.' Cosmopolitan Life Insurance Company v. Woodward, 7 Tenn.App. 394 (1920).

'The rule which we deduce from the cases relied on by appellees, and from other cases therein cited, or which we have found by independent research, is that notwithstanding a recital in a bill of exceptions that it contains all of the evidence, if it affirmatively appears that other evidence was introduced in the lower court, which either was or might have been material, and where consideration of the evidence is material to the issues raised on appeal, the recital in the bill of exceptions that it contains all the evidence will be ignored and the judgment of the lower court affirmed.' State for Use and Benefit of Henderson County ex rel Hanover v. Stewart, 46 Tenn.App. 75, 326 S.W.2d 688 (1958).

It is further insisted by virtue of T.C.A. 27--104 it is not now necessary exhibits introduced as evidence in law cases tried on oral testimony be included in a bill of exceptions in order to be considered in the appellate courts as a part of the evidence.

T.C.A. 27--104 provides in part:

'In suits at law removed to the Court of Appeals or Supreme Court, depositions read and exhibits introduced as evidence at the trial shall be a part of the record and need not be included in the bill of exceptions, but shall be reviewed and examined along with all other evidence.'

When this statute is construed in pari materia with T.C.A. 27--302 and T.C.A. 27--303, it is obvious the statute applies only to cases tried on depositions and exhibits and not to cases tried on oral testimony before a jury, a trial judge or a chancellor. See Rose v. Third Nat. Bank, 27 Tenn.App. 553, 183 S.W.2d 1 (1944); Rose v. Brown, 176 Tenn. 429, 143 S.W.2d 303 (1940).

It is then insisted that since Counsel for defendant approved the wayside bill of exceptions by affixing their signatures thereto, this is an affirmative showing the wayside bill of exceptions contained all the evidence presented to the jury. Plaintiffs rely upon the cases of Grider v. Fiske, 174 Tenn. 243, 124 S.W.2d 709 (1939); and Pennington v. General Motors Corp., 49 Tenn.App. 240, 354 S.W.2d 479 (1961) for this contention. We cannot agree. Neither of those cases had under consideration the authentication and identification of an exhibit as a part of the bill of exceptions.

It is next urged that T.C.A. 27--110 supports the contention of plaintiffs the signing of the wayside bill of exceptions by the trial judge is sufficient authentication of the exhibits thereto.

That statute provides:

'The certificate of approval of the trial judge upon said bill of exceptions or wayside bill of exceptions shall be sufficient leave to file same, when filed within thirty (30) days after the order or action which occasioned its filing, or an extension thereof.

'Where any bills of exception or wayside bills of exception including exhibits to either, bear the authentication of the trial judge or chancellor and have been filed with the clerk of the trial court within the time allowed, it shall be presumed that same were authenticated by the trial judge or chancellor prior to the filing thereof.'

None of the exhibits are authenticated by the trial judge. Nor do any of them show they have been filed with the clerk of the court.

This statute has been construed to create a presumption that bills of exceptions which bear the authentication of the trial judge without the date thereof and filed with the clerk within the time allowed were authenticated prior to...