Wilson v. Tranbarger , 218 Tenn. 208 ( 1965 )

MR. Justice Chattin

delivered the opinion of the Court.

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 hill 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 tlieir identity can be made, and it mnst not be left to tbe 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 S 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, applied 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 judg’e and filed by the clerk within the prescribed period.” Cosmopolitan Life Insurance Company v. Woodard, 7 Tenn.App. 394 (1920).

“The rule which we dednce 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 Connsel 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 wear the authentication of the trial judge without the date thereof and filed with the clerk within the time allowed were authenticated prior to the filing thereof. Pennington v. General Motors Corp., supra. We are unable to construe the statute as insisted on by plaintiffs.

Finally, it is the contention of plaintiffs, in any event, the exhibits are not material to a determination of the assignment of error the trial court erred in sustaining defendant’s motions for a new trial on the four grounds upon which he based his ruling. They cite and rely upon the cases of Zanola v. Hall, 43 Tenn.App. 298, 307 S.W. 2d 491 (1957); Van Dyke v. Inman, 50 Tenn.App. 493, 362 S.W.2d 795 (1962); Cambria Coal Company v. Daugherty, 161 Tenn. 457, 33 S.W.2d 71 (1930); and State for Use and Benefit of Henderson ex rel. Hanover v. Stewart, 46 Tenn.App. 75, 326 S.W.2d 688 (1959). These cases are authority for the proposition that where evidence immaterial to the issues to be considered on appeal, or could not possibly shed any light on those issues, does not appear in the bill of exceptions and the bill of exceptions is complete in all other respects, the appellate courts will not strike the bill of exceptions. The court in neither of those cases had under consideration the question of the propriety of a trial judge in granting or refusing a new trial preserved by a wayside bill of exceptions.

If we were limited to a consideration of only the four grounds upon which the trial judge granted the new trial, then we would probably agree to this argument. But we think we must consider all the grounds of the motions for a new trial and in doing so we would have to consider all the evidence introduced upon the trial.

“In the present case, it appears that the defendant in error did set out fully and specifically in the court below the several grounds on which he asked for a new trial. In such a case the party is entitled to have considered in this court all of his grounds assigned below, and, if any one of them is found sufficient to justify the action of the circuit judge in granting the new trial, that action should be affirmed, although the judge erroneously based his decision upon some other ground.” Citizens’ Rapid Transit Company v. Dozier, 110 Tenn. 98, 72 S.W. 963 (1902); Wileman v. Mayor and Aldermen of Town of Tullahoma, 29 Tenn.App. 172, 195 S.W.2d 325 (1946); Chesapeake, Ohio and Southwestern Railroad Company v. Higgins, 85 Tenn. 620, 4 S.W. 47 (1887).

In determining whether any ground of the motions should have been sustained, it would be necessary for us to consider all the evidence. The wayside bill of exceptions being incomplete, we must conclusively presume the action of the trial judge in granting the motions on the first trial was proper.

We conclude we must affirm the action of the Court of Appeals in striking the wayside bill of exceptions.

We now consider the second trial. Plaintiffs’ declarations contain two counts: the first count alleged common law negligence of the employee of defendant, Shurrals Barker, in the operation of the truck; the second count charged the track was being operated with defective brakes in violation of T.G.A. 59-916, et seq., and reckless driving in violation of T.C.A. 59-858(a).

Defendant, by special pleas, denied his agent or employee was guilty of any negligence which was a direct and proximate cause of the accident; that the negligence of the driver of the automobile was the sole, direct and proximate cause of the accident and resulting injuries and plaintiffs’ intestates were guilty of contributory negligence because they knew or should have known she was intoxicated and notwithstanding rode with her in such condition; and that on the occasion of the accident they were joint adventurers, and the negligence of the driver was imputable to them.

At the conclusion of plaintiffs’ proof the trial judge directed a verdict for defendant on the second or statutory count. As stated hereinabove, the jury returned a verdict for defendant in both cases. These verdicts were approved by the trial judge.

The accident occurred on a Saturday at approximately twelve thirty P.M., in Sullivan County on the extreme south side of Stone Drive at the intersection of Stone Drive and Deneen Lane. Stone Drive is a four lane highway and runs generally east and west. Deneen Lane runs generally north and south across Stone Drive. It was a clear day and the road was dry.

Plaintiffs’ intestates were riding in an automobile owned and operated by Etta Mae Pierce, Deceased. A short while prior to the fatal accident, they were seen in Kingsport. Mrs. Pierce and Nathan Jerome Pierce were seated in the car parked in front of a beer stand. Wilson was seen coming from the store with a package toward the car.

The two north lanes or west bound lanes of Stone Drive were completely barricaded and the two south lanes were partially blocked because it had not been officially opened for traffic. The barricades were at the east end of Stone Drive or to the west of Kingsport. Thus, a motorist driving west from Kingsport had to go around the barricade to enter Stone Drive.

They were nest seen traveling west in the extreme south or left lane of Stone Drive. They passed a car just prior to the accident which was traveling west in the right lane of the two south lanes. The Pierce car was traveling from fifty to sixty miles an hour.

Barker was traveling south on Deneen Lane. He did not stop as he approached the north side of Stone Drive but did look to his left toward Kingsport. The median strip between the north and south lanes of Stone Drive was approximately thirty feet wide. He did not stop the truck at that point before crossing the south lanes of Stone Drive but looked to his right and did not look to his left. He looked straight ahead while traveling across the two south lanes. He was traveling fifteen to twenty miles an hour. He did not see the Oldsmobile and when the cab of the truck had cleared the south lane of Stone Drive the automobile collided with the left side of the truck just to the rear of the cab.

The proof is undisputed Stone Drive was straight and level for about one-fourth of a mile east of Deneen Lane; and there was nothing to have obstructed the view of either driver of the vehicles.

Several broken beer bottles were found in the car, some with caps on and some with caps off.

A medical doctor was traveling behind the Oldsmobile and saw tbe accident. He examined the three bodies to ascertain whether they were dead. He fonnd all were. He stated in his opinion they had been drinking beer from the odor abont their heads. He conld not find where any of the beer had splashed on their bodies or clothes.

Although Stone Drive had not been opened for traffic at the time of the accident, motorists had been traveling npon it for a few weeks prior to the collision. It is undisputed Deneen Lane had not been closed to traffic during the construction of Stone Drive and there were no stop signs at this intersection.

There is proof pro and con as to whether Wilson, Pierce, and the driver of the car were drinking before the accident.

One witness, a neighbor of Etta Mae Pierce, and the operator of a store in the neighborhood, stated she had seen her and Nathan Jerome Pierce the morning* of the accident and that Mrs. Pierce was drunk and Nathan had been drinking heavily.

Plaintiffs’ first assignment of error challenges the action of the trial court and affirmed by the Court of Appeals in refusing to allow the witness, Hubert Wol-liver, a highway patrolman, relate a conversation he had with Barker at the scene of the accident some thirty to forty minutes after the accident.

The evidence of Wolliver was to the effect Barker stated his brakes must have failed after the collision since the truck had proceeded some sixty-three feet up a slight incline after the impact.

It is tlie theory of plaintiffs this evidence was material and admissible as a part of the res gestae. We fail to see the materiality of this evidence in view of the fact Barker admitted he did not stop or apply his brakes while crossing Stone Drive. The fact the trnck came to rest some distance beyond the point of impact would he no proof the brakes were defective prior to the accident. Nor do we think it was material to plaintiffs’ case since Barker admitted he did not apply his brakes at any time while crossing Stone Drive. This evidence being undisputed, we are unable to understand how it can be said the operation of the truck with defective brakes was a proximate cause of accident. If it could be said it was error it was at best harmless. T.O.A. 27-117.

We overrule the assignment.

The second assignment complains of the action of the trial court, affirmed by the Court of Appeals, in refusing to allow plaintiffs to impeach Barker by using his pre-trial deposition.

This question arose when plaintiffs called Barker and used him as their witness. Barker testified on direct testimony as we have pointed out hereinabove.

Plaintiffs have filed as an exhibit the pre-trial deposition of Barker with the statement his answers to questions on pages 28 and 29 of the deposition are contrary to his testimony from the witness stand. We have read these pages of the deposition and all we can find in relation to the testimony of Barker as given on the trial are the following two questions and answers:

“Q. All right, Sir. Now, if you had looked you would have seen it (the car), wouldn’t you? Answer ‘yes’ or ‘no. ’ If you had looked you would have seen it, wouldn’t you? Answer ‘yes’ or ‘no.’

“A. Yes, if I had looked close enough I guess I would.

“Q. And the reason you didn’t see it was because you didn’t look close enough? Answer ‘yes’ or ‘no.’ Answer ‘yes’ or ‘no’ please, Sir. Answer ‘yes’ or ‘no.’

“A. Yes, Sir.”

We fail to understand how this testimony is contradictory of Barker’s testimony at the trial. As we have pointed out above Barker admitted he did not look to his left before proceeding across the south side of Stone Drive and did not see the car prior to the collision.

“The general rule obtains in criminal as well as civil cases, that a party cannot impeach his own witness, but this is subject to the exception that where a party is compelled to call an indispensable witness, or a witness that is hostile taking the party by surprise, such witness may be impeached by the party calling him. * * * In such case the hostility may be shown by the witness himself or otherwise, and he then may be examined as to his contradictory statements; but the impeachment of one’s own witness is limited to those cases where his testimony is in direct contradiction to his prior statements, and he cannot be impeached where he is merely reluctant to give testimony or unless the testimony is actually prejudicial.” Wharton’s Criminal Evidence, Volume 1, Tenth Edition, Section 484A, page 1002; King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948); Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949).

Barker was not an indispensable witness. There were three eyewitnesses to the accident. He was not hostile. Nor was his testimony at the trial prejudicial to plaintiffs.

We overrule this assignment.

The plaintiffs insist by their third assignment the Court of Appeals erred in affirming the action of the trial court in directing a verdict for defendant on the second, or statutory, count of the declaration.

This assignment was not made a ground in plaintiffs ’ motions for a new trial. By our rules, we are precluded from considering an assignment that was not brought to the attention of the trial judge. Rule 14(5) Supreme Court Rules.

Nevertheless, out of respect for the trial judge and Counsel, we think it only fair to repeat, there is no proof the truck was being operated with the brakes in a defective condition. There is no evidence the brakes were tested after the accident.

Barker testified he had driven the truck all that morning and the brakes had worked well. Neither is there any evidence that the truck was being driven “in wilful or wanton disregard for the safety of persons or property. ’ ’

This being true, it was the duty of the trial judge to direct a verdict on the statutory count. Red Boiling Water Company v. McEwen, 3 Tenn.Civ.App. 687; North Memphis Savings Bank v. Union Bridge and Construction Company, 138 Tenn. 161, 196 S.W. 492 (1917).

By their fourth assignment, plaintiffs contend it was error for the Court of Appeals to hold the action of the trial conrt in charging the jury on the doctrine of joint enterprise was harmless error.

The Court of Appeals found there was no proof the occupants in the car were engaged in a joint adventure, but held the charge of this doctrine by the trial judge was harmless error under the facts of the case.

The writer of this opinion has concluded the Court of Appeals was correct in so holding.

The record shows the trial judge thoroughly charged the jury the doctrine of proximate and remote contributory negligence of a guest in an automobile. This charge included the law relative to the negligence of a person who voluntarily rides with an intoxicated driver.

After deliberating for some time, the jury returned to the court room and asked the trial judge to charge them again on the doctrine of remote contributory negligence. The trial judge re-read this part of his charge to the jury. The jury returned to the jury room and when the jury returned a few minutes later to the court room the verdict was announced for defendant in both cases.

Thus, it appears the jury found decedents, Wilson and Pierce, were guilty of proximate contributory negligence in riding with an intoxicated driver. As pointed out, there was evidence pro and con on this issue; and, of course, it was for the jury to determine.

“Where a third person’s negligence may have been a proximate cause of the accident and such third person is sued by a motor guest or passenger to recover for ensuing injuries, it is a general rule that, as to such suit, the contributory negligence of the injured occupant affords a good defense.” Blashfield’s Oyelo-pedia of Automobile Law and Practice, Permanent Edition, Volume 4, Section 2396, page 540.

“If a person voluntarily rides in a motor vehicle driven by one who is intoxicated and knows, or under the circumstances should know this fact, he is precluded from recovering from the driver or a third person for injuries sustained in an accident if the intoxicated condition of the driver was the proximate cause or one of the proximate causes of the accident producing the injuries in question, either' on the theory that he is guilty of contributory negligence, or has assumed the risk of injury.” 8 Am. Jur. 2nd, Automobiles and Highway Traffic, Section 537, page 94; 61 C.J.S. Motor Vehicles sec. 492, page 119; see also Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323 (1925); Williams v. State, 209 Tenn. 208, 352 S.W.2d 230 (1961); Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1958).

Conceding that there is no evidence to sustain the defense the three occupants in the car were joint adventurers and the negligence of the drive was imputable to plaintiffs’' intestates, must we assume the jury based its verdict upon such defense in preference to a defense supported by material evidence? The writer of this opinion thinks not. Especially do I think so under the facts and circumstances as shown in this record. The fact the jury requested further instructions on remote contributory negligence clearly indicates to me they were considering the defense of contributory negligence rather than that of imputed negligence. After receiving the additional instructions, the jury, within a very few minutes, returned to the court room and announced the verdict.

In the absence of an affirmative showing that the jury based its verdict upon a defense nnsnpported by evidence rather than a defense supported by material evidence, this Court will not reverse, the presumption being the judgment appealed from is regular and valid. T.C.A. 27-117; City Transp. Corp. v. Seckler, 32 Tenn.App. 661, 225 S.W.2d 288 (1948); Tennessee Gent. Ry. Co. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452 (1927); Taylor v. Cobble, 28 Tenn.App. 167, 187 S.W.2d 684 (1945).

As said by this Court, speaking through Chief Justice Green, in the case of Tennessee Central Railway Company v. Umenstetter, supra:

“We cannot escape the act of 1911 (T.C.A. 27-117) in disposing of this case. We do not think a mere abstraction of the trial judge in delivering his instructions to the jury invaded any constitutional rights of the parties.”

I think the reasoning in the Umenstetter and the other cases cited applies in the case at bar. Not only is there no affirmative showing the jury based its verdict upon the defense of imputed negligence but to the contrary the record affirmatively indicates the jury based it upon the defense of contributory negligence. Moreover, there is a presumption the judgment appealed from is regular and valid in every respect.

Accordingly, I am of the opinion the judgment of the trial court and that of the Court of Appeals should be affirmed.

However, my four associates, Burnett, Chief Justice, White, Dyer, and Holmes, Justices, do not concur in that part of the foregoing opinion in which it is held the charge of the trial judge to the jury on the doctrine of joint enterprise, under the facts, constitutes harmless error. It is their opinion this charge of the trial judge was prejudicial to the plaintiffs’ rights and constitutes reversible error under the facts of the case.

Hence, the judgments of the trial court and the Court of Appeals are reversed and the cause remanded for a new trial.