Davis v. Hall

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

_______________________________________________ FILED

OLLIE DAVIS AND R. D. DAVIS,

October 3, 1995

Plaintiffs-Appellants,

Cecil Crowson, Jr.

Appellate C ourt Clerk

Vs. Shelby Circuit #47036 T.D.

C.A. No. 02A01-9410-CV-00245

HORACE HALL,

Defendant-Appellee.

_________________________________________________________________________

FROM THE CIRCUIT COURT OF SHELBY COUNTY

THE HONORABLE WYETH CHANDLER, JUDGE

Lewis K. Garrison of Memphis

For Plaintiffs-Appellants

John D. Richardson, The Richardson Law Firm, of Memphis

For Defendant-Appellee

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD, JUDGE

CONCUR:

HEWITT P. TOMLIN, PRESIDING JUDGE, W.S.

ALAN E. HIGHERS, JUDGE

This appeal involves a suit to recover damages for personal injury and

property damage arising out of an automobile accident. Plaintiffs, Ollie H. Davis

and R. D. Davis, appeal from the judgment of the trial court on a jury verdict for

the defendant, Horace Hall.

The complaint alleges that on March 5, 1992, plaintiff, Ollie Davis, was

driving the plaintiffs' 1981 Buick automobile east on Shelby Drive in Memphis,

Tennessee, when the defendant, who was also driving east on Shelby, drove his

1977 Ford automobile into the rear of plaintiffs' vehicle, thereby causing a

collision in which plaintiff sustained personal injuries and property damage.1 The

complaint alleges that defendant's actions were negligent and that they

violated city ordinances and state statutes. The complaint further alleges that

defendant's action were the direct and proximate cause of the collision as well

as the resulting losses, injuries, and damages to the plaintiffs.

Defendant's answer denies the material allegations of the complaint. In

addition, defendant filed a counterclaim for damages alleging that plaintiff was

guilty of various acts of common law negligence and violation of city

ordinances and state statutes, all of which directly and proximately caused the

collision and resulting damages to the defendant.

The jury returned a verdict for the defendant on the original complaint

and awarded defendant $700.00 in damages on his counter-complaint. The

court duly entered judgment on the jury verdict, and plaintiffs have appealed

and present nine issues for review.

The first issue, as stated in plaintiffs' brief, is:

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Plaintiff, R.D. Davis, Ollie Davis's husband, sues for loss of services and

consortium.

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1. Did the trial judge commit reversible error by

communicating with the jury during deliberations

outside the presence of counsel and without the

consent of counsel.

In support of the motion for new trial, plaintiffs submitted Mr. Davis's

affidavit which states that he observed the trial judge, during jury deliberations

and absent counsel for the parties, enter the jury room, and that shortly

thereafter, the judge permitted the jury to break for lunch. The affidavit also

stated that immediately after Mr. Davis's lawyer returned from lunch, Mr. Davis

conveyed this information to his lawyer. The record does not reveal, nor does

plaintiffs' brief assert, that plaintiffs' counsel at any time, prior to filing the motion

for a new trial, objected to any communication the judge had with the jury. At

the hearing on the motion for new trial, the trial judge stated:

Now, all I can say again with regard to that first

allegation is, is that I do not recall speaking to any jury.

I have never spoken to any jury unless -- the only

purpose I speak to them would be for the purpose of

saying ladies and gentlemen, you all ready to take a

break or go to lunch or are you ready to go home or

whatever. That doesn't take any sixty seconds. It

takes about five seconds and I wouldn't influence this

jury or any other jury and wouldn't say anything or do

anything unless I had the permission of the counsel to

do it. So -- unless I was just walking by and somebody

yelled at me and said, how long do we have to stay

and I said, if y'all ready to go, I'll tell the lawyers. That

would be the extent of it. Nothing more. And I never

heard -- there has never been -- no allegation of that

type has ever been levied against me and I don't take

well to it.

[D]on't mind your client saying he saw me leaning in

the jury room because I very well could have. As I say,

I do that. I don't know how to tell them it's time to go

home or time to take a break without either me

looking in there or the sheriff looking in there or

somebody looking in there. And I generally like to

knock on the door, tell them to come to attention and

look in and say, ladies and gentlemen, are y'all ready

to go home. . . .

The trial judge permitted plaintiffs to introduce the testimony of a court

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deputy who testified that she did observe the judge enter the jury room after he

stated that he was "going to check about lunch."

Although it is error for a trial judge to have ex parte communication with

members of the jury, Spencer v. A-1 Crane Serv., Inc., 880 S.W.2d 938, 941 (Tenn.

1994), there was no timely objection to any ex parte communication, and, thus,

"plaintiffs waive their right to complain." Guy v. Vieth, 754 S.W.2d 601, 605 (Tenn.

1988).

In Guy, the Court stated:

The best position seems to us to be that a trial judge's

ex parte communication with a jury in a civil case

does not require reversal per se, but reversal is

required where a timely complaining party shows

specific prejudice or where, owing to the nature of the

ex parte communication, the reviewing court is

unable to determine whether the action was actually

harmless.2 [Citations omitted]. (Emphasis in original).

Id. at 605.

In the case at hand, the record is clear that the trial judge merely inquired

about lunch, and that this inquiry had no bearing on the jury deliberations.

Therefore, plaintiffs' first issue is without merit.

Plaintiffs' second and third issue, as set out in the brief, will be considered

together:

2. Did the trial court err by permitting defendant to

introduce, play in the presence of the jury, and mark

as an exhibit a tape recording of plaintiffs'/appellants'

independent witnesses' statements to an insurance

adjuster when the Defendant failed to disclose these

oral statements or the name of the adjuster during

discovery.

3. Did the trial court err in allowing defense counsel to

play a recorded statement by lay witness, Everett

Jones and where the witness opined that the rain on

2

This rule, announced in Guy, was reaffirmed in Spencer v. A-1 Crane

Serv., Inc., supra.

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the day of the accident caused the accident and

plaintiffs' motion for a mistrial was denied.

We should first note that plaintiffs' brief concerning these issues contains

no citations to the record. This Court has no duty to exhaustively search this

voluminous record to verify the unsupported allegations in plaintiff's brief.

McReynolds v. Cherokee Ins. Co., 815 S.W.2d 208, 211 (Tenn. App. 1991); Airline

Constr. Inc. v. Barr, 807 S.W.2d 247, 275 (Tenn. App. 1990). Nevertheless, in this

instance the Court will address the issue.

Plaintiffs first argue that the trial court should have excluded the

statements because they were not produced in discovery. The record reflects

that plaintiffs did not file interrogatories to discover any pertinent material, nor

did plaintiffs file a request for production. Apparently plaintiffs contend that in

a pretrial discovery deposition defendant was asked if he had knowledge of

any witnesses, to which he replied in the negative and that this constituted a

denial of the existence of any tapes.

The record also reflects that when defense counsel brought up the tape

in the trial of the case, the trial court recessed and allowed plaintiffs' counsel to

listen to the tape and then to make any objections. Although plaintiffs' counsel

made several objections, he never stated as a ground for an objection that

defendant had violated any rules of discovery. Moreover, we do not have the

discovery deposition apparently relied upon by plaintiffs, and therefore, we

cannot ascertain the context of any questions asked concerning witnesses

known to the defendant.

Plaintiffs also argued that the tape recording was improperly used to

impeach the witness's testimony concerning five issues, because the issues were

either irrelevant or the taped statement was not inconsistent with the testimony

of the witness on those issues. In order for a statement to be used to impeach

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a witness, the statement must be inconsistent with the statement given at trial.

Tenn.R.Evid. 613; Doochin v. U.S. Fidelity & Guar. Co., 854 S.W.2d 109, 114 (Tenn.

App. 1993). A review of the tape introduced in this case indicates statements

that were inconsistent with the version of events the witness related at trial. We

note also that the witness was afforded the opportunity to explain or deny the

statements made on the tape. See Tenn.R.Evid. 613 (b). The trial court has great

discretion in the admission or rejection of evidence, and the court's action will

be overturned on appeal only when there is a showing of abuse of discretion.

Otis v. Cambridge Mutual Fire Insurance Co., 850 S.W.2d 439 (Tenn. 1992). These

issues are without merit.

The fourth issue presented for review, as stated in plaintiffs' brief, is:

4. Did the trial court commit reversible error by

permitting the investigating police officer of a prior

automobile accident by plaintiff to testify regarding

the prior accident where the plaintiff stated she did

not remember the accident and medical records

from the prior accident had already been introduced.

Plaintiff testified that she could not remember being in a prior automobile

accident in 1985. To impeach plaintiff's testimony, defendant introduced a

hospital record to show that plaintiff claimed a neck injury apparently from an

automobile accident in 1985. Defendant then submitted the testimony of a

police officer stating that plaintiff was involved in a rear end collision in 1985.

Plaintiffs' suit is for personal injuries, including a neck injury resulting from an

automobile accident, and she denied a prior accident in which such an injury

was claimed. Therefore, the evidence introduced was relevant and properly

admitted to contradict plaintiffs' testimony.3 See Neil P. Cohen et al., Tennessee

Law of Evidence § 607.3 (2d ed. 1990).

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However, the testimony of the police officer might be considered

somewhat cumulative.

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The fifth issue for review, as stated in plaintiffs' brief, is:

5. Did the trial court err in not sustaining plaintiffs'

counsel's objection and by not giving curative

instructions to the jury where defense counsel in his

closing argument told the jury that a vehicle moves so

many feet per second and no proof was adduced at

trial on this point.

Although plaintiff failed to direct this Court to the point in the record

where any alleged error occurred, we have located the alleged error and will

briefly address it. During the closing argument, defendant's counsel argued to

the jury that, "We all know that a car driving 40 m.p.h. goes 60 feet a second."

Plaintiffs' counsel objected because there was no proof of such calculations in

the record. The trial court admonished counsel to allow the jury to make their

own calculations and, thus, in effect, sustained the objection. Plaintiffs' counsel

asked for no curative instruction of any kind.

In general, the control over the argument of counsel resides with the trial

court, and the trial court has broad discretion as to what shall and shall not be

permitted in argument. The appellate courts generally will not interfere with the

discretionary action of a trial court in refusing to grant a mistrial or a new trial for

misconduct of counsel in argument unless the argument is clearly unwarranted

and made purely for the purpose of appealing to passion, prejudices and

sentiment which cannot be removed by sustaining the objection of opposing

counsel. Perkins vs. Sadler, 826 S.W.2d 439, 442 (Tenn. App. 1992). We find no

error by the trial court, and this issue is without merit.

The sixth issue, as stated in plaintiffs' brief, is:

6. Did the trial court err by instructing the jury that an

insurance company was not a party to this suit and

insurance should not be considered by the jury, where

the jury was led to believe there was no insurance and

plaintiffs' motion for a mistrial was denied.

Plaintiffs assert that the "trial court's instructions regarding no insurance in

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the case went beyond the normal charge of instructing the jury not to consider

insurance in their deliberation." Once again, plaintiffs have failed to cite to the

record, but we have located the alleged error in the trial court's instructions. The

trial court stated:

Now, Ladies and Gentlemen, in this case no insurance

company is a party to this action. You must refrain

from inferences, speculation or discussion about

insurance.

The court's instruction to the jury is correct in every respect. This issue is

without merit.

Plaintiffs' seventh issue for review, as stated in their brief, is:

7. Did the trial court err in permitting defense counsel

in his opening argument to state that plaintiff had

previously sustained a worker's compensation injury,

received a 16 percent (16%) disability rating, and

settled her claim where its unfair prejudice

outweighed the probative value of this statement and

mislead [sic] the jury.

In the opening statement, defendant's counsel stated that plaintiff was

claiming a neck injury in the case about to be tried, but that in fact she had

continuing problems from a previous injury where she had received a workers

compensation settlement based upon a disability rating of only 16 percent to

the body as a whole. Plaintiffs' counsel made no objection to this statement, nor

did plaintiffs' counsel ask for a mistrial or other curative measures. From our

review of the record we cannot say that counsel's remarks in opening statement

concerning the workers compensation settlement more probably than not

affected the verdict of the jury. In any event, it appears that plaintiffs' counsel

apparently did not think that there was an infraction because no motion was

made for any curative instruction or for a mistrial. This issue is without merit.

Plaintiffs' eighth issue for review, as set out in the brief, is:

8. Did the trial court err in not permitting plaintiffs'

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witness/investigator to testify about debris, skid marks

and measurements he took at the accident scene

where the investigator had personal knowledge of this

information since he visited the scene within days after

the accident and made a diagram of same.

Plaintiffs have failed to direct this Court to the alleged error's location in

the record, but it appears from our review that defendant addressed the court

in what could be considered a motion in limine concerning a witness's

testimony. We did not see a definitive ruling by the trial court excluding this

person as a witness. The trial court, in colloquy with counsel, noted that he

would prohibit the witness from testifying as to certain things that were not

competent, and apparently no objection was made by plaintiffs' counsel. In

any event, the witness was never put on the stand, and there was never any

offer of proof of any kind. Thus, we have no way of knowing whether the

evidence was improperly excluded. In the absence of an offer of proof and the

inclusion of the testimony in the record, this Court cannot consider the alleged

error. Brown v. Weik, 725 S.W.2d 938, 948 (Tenn. App. 1983); Valentine v.

Conchemco, Inc., 588 S.W.2d 871, 876 (Tenn. App. 1979). This issue is without

merit.

The last issue presented for review, as stated in plaintiffs' brief, is:

9. Did the trial court err in permitting the jury to take

into deliberations the original tape recording of a

recorded statement given by plaintiffs' independent

witness Jones, where part of the original tape had

been deemed inadmissible and excluded from the

jury and a second substitute tape recording with the

objectionable material deleted had been entered as

an exhibit.

It appears from the briefs that the tape recording involved in issues 2 and

3 was retaped to eliminate objectionable material, and the new tape was to be

the evidentiary exhibit. However, the original tape recording, introduced for

identification only, was kept with the exhibits and inadvertently went to the jury

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room with the other exhibits. When the exhibits were sent to the jury room,

counsel for plaintiffs should have been alert to what was being sent to the jury

room and not now complain that the court allowed a rejected piece of

evidence to go to the jury. This issue is entirely without merit.

The judgment of the trial court is affirmed, and costs of the appeal are

assessed against the appellants. The case is remanded to the trial court for such

further proceedings as may be necessary.

____________________________________

W. FRANK CRAWFORD, JUDGE

CONCUR:

_________________________________

HEWITT P. TOMLIN, JR.,

PRESIDING JUDGE, W.S.

_________________________________

ALAN E. HIGHERS, JUDGE

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