344 S.W.2d 572 | Tenn. Ct. App. | 1960
The plaintiff in error, Mrs. Betty Clemr ents, was plaintiff in the lower court and the defendant in error Veterans Cab Company of Memphis, was defendant in the lower court; so, for convenience, the parties will be styled, as in the lower court, plaintiff and defendant, or called by their respective names. A companion suit, tried in the lower court along with this one, was filed by Mrs. Clements’ husband for loss of services and medical and hospital expenses incurred by him, which suit resulted in a verdict for $1,250 in his favor. No appeal was taken in that case, however, so it is not involved in this Court. The suit of Mrs. Clements, which was appealed by her, resulted in a verdict which was as follows:
“We the jury, find for the plaintiff with no damages awarded.
“Norman P. Cox, Foreman”
It appears in the record before us, that the jury when it first undertook to report, returned a verdict in favor of Mr. Clements for $1,250, but at the same time tried to return a verdict for the defendant in Mrs. Clements’ case.
A motion to strike the bill of exceptions was filed in this Court by the defendant in error, on the ground that the bill of exceptions does not state that it contains all the evidence introduced in the case, and on the further ground that said bill of exceptions affirmatively discloses that i.t does not in fact contain all of the evidence. Counsel for the plaintiff: in error undertook to answer this motion by filing an affidavit of the court reporter who wrote up his notes for the purpose of making a bill of exceptions, which stated that it was a pure oversight and inadvertence on his part that caused him to omit adding a statement that it contained all of the evidence in the case. As to the bill of exceptions, as actually filed, affirmatively showing that it does not contain all of the evidence, it was contended by counsel for plaintiff in error that the exhibits shown to be omitted dealt exclusively with the husband’s suit, and were not necessarily or properly a part of the bill of exceptions in the case which was appealed.
The law is settled in Tennessee by a long line of cases holding that where there has been a general verdict, the bill of exceptions must affirmatively show, or it must appear from the nature of the case that all the evidence submitted to the jury or the court below material with reference to the questions to be raised in the reviewing court, is stated in the bill, or the appellate court will presume that there was evidence to authorize and sustain the verdict of the jury or findings of the Court and the judgment thereon. Among such cases are: Insurance Co. v. Scales, 101 Tenn. 628, 49 S. W. 743; Kennedy v. Kennedy, 84 Tenn. 736; Kirkpatrick v. Utley, 82 Tenn. 96; Huffman v. Hughlett, 79 Tenn. 549; Franklin Fire Ins. Co. v. Crockett, 75 Tenn. 725; Kincaid v. Bradshaw, 65 Tenn. 102; Holbert v. Seawright, 62 Tenn. 169, 170; Mason v. Anderson, 59 Tenn. 40; Jackson Ins. Co. v. Sturges, 59 Tenn. 339; Tomeny v. German Nat. Bank, 56 Tenn. 493;
In the instant case, however, it is our opinion that it is immaterial whether the bill of exceptions be stricken or be allowed to remain in the record for consideration of this case on appeal, because consideration of the evidence is unnecessary. If the bill of exceptions were stricken, we would still have before us the technical record, including the verdict of the jury and the judgment of the lower court thereon; and, it is our judgment that a verdict returned in favor of the plaintiff which awards no damages is erroneous on its face. Plaintiff in error has filed, in this Court, eight assignments of error; but we will refer to the first four of them, only. The other four are wholly irrelevant to anything said in this opinion, because they refer to alleged errors in the admission of evidence and to objections to portions of the trial judge’s charge dealing with the evidence admitted. We might, indeed, limit our consideration to the first assignment, only; but, inasmuch as the other three quoted below might have some bearing on our discussion of the cases cited by counsel for
“I
“The verdict of the jury is a nullity in that the jury found for the plaintiff, fixed no damages, and the ' failure to award damages is such as to shock the conscience.
“II
‘ ‘ The verdict of the jury was so inadequate as to evince passion, prejudice or caprice on the part of the jury.
“Ill
“The nature of and the wording of the verdict is such that it may be plainly inferred that the verdict of the jury was in disregard of the evidence.
“IV
“In view of the evidence it is clearly indicative that the verdict is the result of a misunderstanding of the court’s charge.”
Counsel for plaintiff cites and relies on the Supreme Court case of W. T. Grant Co. v. Tanner, 170 Tenn. 451, 95 S. W. (2d) 926, and the decision of this Court in Flexer v. Crawley, 37 Tenn. App. 639, 269 S. W. (2d) 598, as authorities for the proposition that inadequacy of the verdict, in a proper case, is a ground for reversal. They contend that an award of no damages on a verdict in favor of the plaintiff is obviously inadequate in amount, and therefore justifies a reversal. These cases do constitute authority for that proposition of law; but we think
On the other hand, counsel for defendants cites and relies on the cases of Southern Bell Tel. & Tel. Co. v. Skaggs, 34 Tenn. App. 549, 241 S. W. (2d) 126, 128, and the opinion of Swepston, J. in the previously unreported case of Wiggins v. Mullins, now reported as a footnote on pages 562-566 of Volume 34, Tennessee Appeals, at pages 132-134 of 241 S. W. (2d). The case of Wiggins v. Mullins sustained and affirmed a verdict in favor of the father of a three year old child, even though in a companion suit which the father had brought as next friend for the child, the verdict had been in favor of the defendant; and this, on the ground that the verdicts in the two cases were not necessarily, as a matter of law, inconsistent with each other. The case of Southern Bell Tel. & Tel. Co. v. Skaggs affirmed a verdict which was in the following language:
“We the jury find for the plaintiff $5,000 for personal injuries, and $0 for personal property damage, C. C. Biehards Foreman.”
The theory of counsel for defendant, with reference to the last two cases referred to above, as applied to the ver-
In the instant case, on the other hand, we do not have before us the verdict in the companion suit of the husband,
For the reasons stated above we feel constrained to reverse this cause, and remand it to the Circuit Court of Shelby County for a new trial. The costs of the appeal will be adjudged against the appellee Veterans Cab Company of Memphis.