Wilson v. Tranbarger

On Petition to Eehear

PER CURIAM.

Counsel for the trucking company have filed herein a very courteous, vigorous and intelligent petition to rehear. It is said that the majority of this Court overlooked T.C.A. sec. 20-1318, which in effect requires the application of the general verdict in favor of the trucking company in this case, and prohibits this Court from depriving the trucking company of its verdict where any defensive plea in issue was supported by evidence and was submitted to the jury under proper instructions.

The argument is made that, under all prior decisions of this Court and the Court of Appeals, a rule has been established that where there are more than two theories of action, or defenses, upon which the parties are at issue, a general verdict will stand if it can be supported on the basis of any one of them, regardless of error in a jury instruction pertaining to the others.

This statute (T.C.A. sec. 20-1318) reads, as follows:

“A general verdict, although it may not in terms answer every issue joined, is nevertheless held to embrace every issue, unless exception is taken at the term at which the verdict is rendered. ’ ’

*230 This section must be read in pari materia with the preceding section, T.C.A. sec. 20-1317, which reads as follows:

“If any counts in a declaration are good, a verdict for entire damages shall be applied to such good counts.”

Probably the first reported decision particularly applying these Code Sections is that of Tennessee Central Ry. Co. v. Umenstetter, 155 Tenn. 235 , 291 S.W. 452 , which according to the petition here has been cited by other reported decisions at least twenty-seven times. The Umenstetter case was a suit based on a common law count and a statutory count against the railroad. There, this Court, since there was evidence of the violation of the statutory count even though there was none as to the common law count, applied the statute and affirmed the verdict. This was a case wherein there were two counts in the declaration. The Court in this case after citing two or three old criminal cases states the gist of what this statute means when it said:

“In all these cases the court can see that the merits have been reached without any real prejudice to the rights of the defendant.”

Thus it is, when cases come before this Court as particularly in Hammons v. Walker Hauling Co., 196 Tenn. 26 , 263 S.W.2d 753 , the Court may, and does, make a distinction in the application of the general verdict if it is clear to the Court that the merits of the case have been reached without prejudice to the plaintiffs herein.

In the Hammons case there was a directed verdict as to certain defendants therein, and upon appeal the Court *231 of Appeals applied the statute now in question to these directed verdicts, holding that the general verdict against Hammons in favor of Walker must he applied and the verdict below affirmed. This Court reversed for reasons stated in the opinion.

In the present case the principle involved is the same as was involved in the Hammons case, even though the procedural rules as applied in the Hammons case and in this case are different. The Court instructed the jury that if they found that the driver of the vehicle in which the plaintiffs’ intestates were guest passengers was guilty of any negligence, which proximately caused the accident, they would ipso facto be required to find the plaintiffs guilty of negligence barring their recovery. We, as did the Court of Appeals, found under this record, and we do not think it is controverted, that there was no evidence in this case to support such a legal conclusion. Thus it is, when the court so instructed, it in effect did the same thing as was done in the Hammons case, that is, instructed the jury for the trucking company as against these parties’ intestates and took by this instruction any rights these parties had away from the jury.

Of course, the harmless error statute, T.C.A. sec. 27-117, clearly shows that such an instruction is not harmless, and when the question of reversible error depends upon the facts and circumstances of each case, as it does here, the Court must reverse. See Espitia v. State, 199 Tenn. 696 , 288 S.W.2d 731 . In other words where there is an error committed which is not harmless, it is the obligation of this Court to reverse the matter for proper consideration under proper instructions. This was in effect the reason for the reversal in McClard v. Reid, 190 Tenn. 337 , 299 S.W.2d 505 . In the McClard case *232 the trial judge had instructed the jury that, if the defendant was guilty of negligence which proximately caused the accident, then they would not consider any remote contributory negligence on the part of the plaintiff. This Court held that this instruction was erroneous, required a reversal of the trial court’s judgment, and held that the harmless error statute (T.C.A. sec. 27-117) did not preclude a reversal in view of the erroneous nature of the court’s charge.

We find nothing upon the face of the Code Section in question (T.C.A. sec. 20-1318) which indicates a legislative intent to make such general verdict applicable in favor of the defendant whose liability was not being considered by the jury returning the general verdict in question. In other words, here the trial judge by this erroneous instruction told them in effect not to consider the rights of these parties if the person they were riding with was guilty of negligence which proximately caused the accident or proximately contributed thereto. It seems logical therefore to conclude that the courts are not authorized to reach such an intention into this Code Section. The Legislature certainly did not intend by this Code Section to deprive these parties of their day in court.

This record shows that whether or not these guest passengers were guilty of their own individual negligence was sharply controverted. The question of whether the parties had been drinking immediately prior to the accident was disputed at the trial by credible evidence. Of course, this made a jury question. There was no evidence of joint adventure one way or the other. Under the charge of the court if the jury found that the driver of *233 the vehicle in which these parties were riding was guilty of speeding at the time of the accident or was driving on the wrong side of the road or otherwise driving in a reckless manner as claimed by the defendant and further found that the parties had been drinking then the jury, under this erroneous charge, would be required to find for the defendants even though they did not feel that these plaintiffs’ intestates were guilty of any independent negligence. Certainly the Legislature never intended by the Code Section in question to require the judiciary under this kind of verdict to apply it to all parties involved under a factual situation as here. Thns it is after full consideration the petition to rehear must be denied.

Burnett, Chief Justice, and White and Dyer, Justices, concur.

MR. Justice Chattin.

For reasons stated in the original opinion, I respectfully dissent.

On Second Petition to Rehear

PER CURIAM.

We have permitted counsel for Hubert Tranbarger d/b/a Tranbarger Trucking Company to file a second petition to rehear herein. This was done for the reason that we felt, under the circumstances on which the case was remanded, counsel probably did not have ample opportunity to set forth his contentions fully in his first petition to rehear. Counsel has filed herein a very forceful, courteous and dignified second petition to rehear, which we have considered fully.

In this petition counsel contends that a rehearing should be granted for three reasons, one, that in sustain *234 ing tlie assignment of error relating to the instrnctions of the trial conrt on the theory of joint venture plaintiffs below failed to comply with Rule 14 (3) and Rule 14 (5) of this Court.

In reply to the assignments of error in the Court of Appeals it was contended by the present counsel that the Rules of the Court of Appeals, which are in effect similar to those above mentioned, were not complied with. The Court of Appeals though without enforcing these rules considered this question and held that even though there was “no basis in the facts of the case” for an instruction on joint venture such an instruction would merely be harmless error. When the petition for certiorari was applied for, this same question was presented in the petition by assignment number 5 that the trial court erred in giving such an instruction. In answering this assignment counsel does not raise the question that the plaintiffs failed to comply with Rule 14 (3) and Rule 14 (5) but merely contents himself with saying:

“As to the question of joint venture, there was evidence that the three occupants of the automobile had a common purpose — a drinking party, and there was proof that two of the occupants were in business together. However, even if not applicable to this case, the giving of such instruction was not affirmative error, but would constitute merely a harmless abstract instruction, which under T.C.A. sec. 27-117 would not constitute grounds for a reversal.”

Thus it is argued by the respondent of this second petition to rehear that the question now presented as the first contention herein should not be considered because petitioners did not object when the plaintiffs did *235 not set forth the charge in their motion for a new trial and in their assignments of error herein. We, of course, do not mean to relax onr Rules here attempted to be applied, bnt under the circumstances in this case we do not deem them applicable and feel that the question should be considered on its merits.

By the second assignment in this second petition to rehear counsel contends in effect that the Court failed to recognize the actual instruction given by the trial court in regard to the defense of joint venture and urges us to reevaluate our opinion regarding this instruction. The instruction is copied in full herein, and the argument is again made relative to this instruction that the defense of joint venture, which it clearly sets forth, would only be applicable provided the jury found certain facts to exist. It is argued, too, since this. Court and the Court of Appeals have held that there was no evidence to support this instruction it must be presumed that the jury recognized this fact and ignored the court’s instruction regarding this particular phase of the law.

We reversed the Court of Appeals and remanded this case for a new trial on this feature of the case, because we felt that under the factual situation herein, the giving of this charge on joint venture constituted reversible error and was not a mere abstract proposition of the law even though the charge correctly stated the law. We have found, as well as the Court of Appeals, that there is no evidence of joint venture.

It has been held time and again that:

“The instructions given by the judge to the jury should be directly applicable to the facts in evidence. There must be testimony tending to raise the question *236 in order for an issue to be submitted to the jury. An instruction which assumes that there is evidence tending to prove certain facts, when there is no such evidence, is erroneous. Goodall v. Thurman, 38 Tenn. 209 . East Tenn. V. & G. R. Co. v. Toppins, 78 Tenn. 58 . Three States Lumber Co. v. Blanks, 118 Tenn. 627 , 102 S.W. 79 . Allen v. Melton, 20 Tenn.App. 387 , 99 S.W.2d 219 .” Mayor and Aldermen of Town of Morristown v. Inman, 47 Tenn.App. 685, 342 S.W.2d 71 .

One can find an almost similar language in an opinion by Judge Faw (those of us who have been at the bar a long time are very appreciative of the thoroughness with which Judge Faw wrote his opinions and the number of decisions that he cited supporting his findings) in Allen v. Melton, cited in the quotation, supra, at page 400 of 20 Tenn.App., at page 227 of 99 S.W.2d an almost identical statement to that just above quoted, and Judge Faw cites many more decisions supporting that statement. In the Melton case Judge Faw says:

“An instruction which assumes that there is evidence tending to prove certain facts, when there is no such evidence, is erroneous.”

Over the years the courts in applying this rule have more or less stated the rule, and it is a definite rule, that when such abstractions are given in the charge it must appear “that they may have been so.” O’Rourke v. Citizens’ St. Ry. Co., 103 Tenn. 124 , 52 S.W. 872 , 46 L.R.A. 614 . If, however, such, abstractions are hurtful or harmful they constitute reversible error. We think, after reading this record, unquestionably such must appear here because, even in stating an answer to this assignment of error in the petition for certiorari, counsel for *237 the defendant, as we have shown by the quotation above, more or less attempts to argue here that these parties were together drinking, etc. In other words it is perfectly clear to us, and should be to anyone having practical trial experience, that in arguing cases to the jury it is perfectly natural without violating any niceties or requisites that are required of an advocate in arguing a case, he would in his advocacy argue such things to a jury, and the jury naturally, when they have an instruction of the kind here on this question, would feel that the parties are joint venturers and thus under such an instruction they would unquestionably return a verdict for the defendant. If such an instruction had not been given and instructions properly given as to the duty of a guest, as these parties were herein, then it would present an entirely different question to a jury of laymen.

We say, too, that this is certainly true when we see by the authorities how the judges, great judges, in considering a question of joint venture have differed over the years. One example alone is that of the case of Schwartz v. Johnson, 152 Tenn. 586 , 280 S.W. 32 , 47 A.L.R. 323 , as cited by the Court of Appeals in their holding that the facts here did not present a joint venture. This was a case (Schwartz v. Johnson, supra) where the Court of Civil Appeals had held that it was a joint venture. This Court in Schwartz v. Johnson, supra, held that it was not a joint venture. Then, too, there is the case of Berryman v. Dilworth, 178 Tenn. 566 , 160 S.W.2d 899 , wherein this Court again held that under a state of facts similar to those herein there was not a joint venture and affirmed the judgment of a jury returning a verdict for the plaintiffs. Under such a situation, and the authorities being as they are, we cannot escape *238 the proposition that such an instruction as this in the absence of proof of joint venture did not constitute harmful and reversible error.

Lastly, it is argued that we should for reasons heretofore set forth in their second petition to rehear again consider T.C.A. see. 20-1318 and sec. 27-117, and that, under these sections, we should affirm the judgment of the Court of Appeals. We think that these statutes have been sufficiently considered by us in our opinion on the first petition to rehear and that this obviously and admittedly is an attempt to reargue the questions that we have previously considered. We have again thought about the matter and do not think anything else is necessary to be said in this particular.

For reasons herein stated the second petition to rehear is overruled.

BtjRnett, Chief Justice, and White and Dyer, Justices, concur.

Mr. Justice Chattin.

For reasons stated in the original opinion, I respectfully dissent.