Kanbi v. Sousa ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
February 11, 2000
CECILIA KANBI, )
) Cecil Crowson, Jr.
Plaintiff/Appellee, ) Appellate Court Clerk
) Appeal No.
) M1999-00025-COA-R3-CV
VS. )
) Davidson Circuit
) No. 97C-778
PATRICIA J. SOUSA, )
)
Defendant/Appellant. )
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. SOLOMAN, JUDGE
J. MITCHELL GRISSIM, JR.
JOHN P. SHEAHAN, JR.
325 Union Street
Nashville, Tennessee 37201
Attorneys for Plaintiff/Appellee
JAMES C. MCBROOM
211 Printers Alley, Suite 502
Nashville, Tennessee 37201
Attorney for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
COTTRELL, J.
OPINION
In this auto accident case, the jury found the defendant liable for the
plaintiff’s injuries, and the trial court entered a judgment on the verdict. The sole
issue on appeal is whether the judge’s comments from the bench during the
testimony of the defendant constituted reversible error. Under the circumstances
of this case, we find the judge’s comments to be harmless error at most, and we
affirm the trial court.
I. An Auto Accident and a Trial
This case arose from an auto accident that occurred on September
30, 1996. At about 11:00 a.m. on that day, Cecilia Kanbi was driving her red
Sentra automobile down Murfreesboro Road in an eastward direction, when a
green Cougar driven by Patricia Sousa drove from a parking lot driveway and
entered the road, striking Ms. Kanbi’s car on the right side and pushing it into the
median.
An ambulance transported Ms. Kanbi to Southern Hills Medical
Center, where she was examined and treated for back and neck pain. She was
released and told to follow up with her own doctor. Ms. Kanbi was treated for
two months by her chiropractor, but her pain has persisted, causing her to curtail
many of her activities, including her participation as a dancer with Odomankoma,
a traditional Ghanaian dance troupe.
Ms. Kanbi filed a complaint on March 10, 1997, asking for
compensatory damages of $15,000. During trial, Ms. Sousa admitted that while
she was attempting to cross Murfreesboro Road, her car struck the plaintiff’s.
She testified that before she pulled out into Murfreesboro Road, she came to a
complete stop, and that she looked to her left but did not see the plaintiff’s car
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or any other car coming in her direction. She admitted that she was largely
responsible for the accident, but she contended that she could not be held 100%
responsible, on the theory that since she did not see Ms. Kanbi’s car advancing
down the road, it could be inferred that the plaintiff had been speeding.
The only eyewitness of the accident to testify at trial, other than the
plaintiff and the defendant, was Ms. Stephanie Harris. Ms. Harris testified that
she was traveling eastward on Murfreesboro Road at about 40 or 45 miles per
hour; that the red Sentra was traveling slightly ahead of her at the same speed;
that she saw the green Cougar slow down at the end of the driveway, but that it
did not stop; and that the driver of the Cougar did not turn her head in the
direction of oncoming traffic before entering the roadway.
At the conclusion of the evidence, the judge instructed the jury on
the relevant principles of law, including comparative fault, and gave them a
Special Verdict Form to record their conclusions. The jury found that Patricia
Sousa was 100% negligent and that Cecilia Kanbi was not negligent at all. They
also found that Ms. Kanbi had suffered damages in the amount of $18,000. The
plaintiff filed a motion to confirm the jury verdict, but to modify it so that it
would conform to the ad damnun clause in her complaint. The court granted the
motion, and entered a judgment against the defendant in the amount of $15,000.
This appeal followed.
II. The Judge’s Comments
The appellant argues that four times during the course of the
defendant’s cross-examination, the trial court made improper comments that had
the effect of unfairly undermining the jury’s belief in her credibility. We have
copied the relevant portions of the trial transcript below, and highlighted the
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particular phrases the appellant objects to, in order to create a context for further
discussion.
In the first instance, the plaintiff’s attorney had elicited Ms. Sousa’s
admission that the accident was partially her fault, and was questioning her as to
the circumstances, when she unexpectedly denied that her car did not move after
the impact that threw Ms. Kanbi’s car to the median. After a series of questions
and non-responsive answers as to what Ms. Sousa actually saw or remembered,
the attorney attempted to impeach her by reading her earlier deposition
testimony:
Q. Let’s read along together with Line 2. The
question I asked you. “At the point of impact your
vehicle didn’t move and hers was next to the median”
What was your answer?
A. Yes.
Q. No. What was your answer?
A. Yes.
Q. Read Line 4.
A. “Uh-huh.”
Q. And I asked you, “Is that a yes?” And you
answered?
A. Yes.
Q. Is that the truth?
THE COURT: I think she’s testified to that.
That’s asked and answered. Today she’s changing her
testimony.
Shortly thereafter, Ms. Sousa was questioned as to her employment status
at the time of the accident, and her answer confused the plaintiff’s attorney:
Q. Now we’ve heard a lot about your being
recruited down here to come work in the health care
industry from Canada. The truth of the matter is on the
day you hit Ms. Kanbi, you didn’t have a job, did you?
A. Yes, I did have a job in November.
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Q. You did have a job?
A. Uh-huh. I was not working at the time.
Q. So now you’re changing what you just said
about you didn’t have a job. Were you –
MR. SCUDDER: Objection, Your Honor.
THE COURT: Well, you opened the door
with what I thought was irrelevant testimony anyway, and
now he’s cross-examining her about it. And apparently
there is good reason. So I’m going to let him do it. She
needs to get her answers consistent and straight
because there’s a lot of discrepancies here. Go ahead.
I mean, it’s real simple. Were you working?
THE WITNESS: I wasn’t working, but I had
a job to go to in November.
During pre-trial discovery, Ms. Sousa had responded to an interrogatory
question about the identity of any person or entity whose acts of negligence
contributed to the plaintiff’s injuries, by referring to shrubbery and a brick wall
near the bottom of the driveway that allegedly obstructed her view. At trial, the
plaintiff’s attorney read Ms. Sousa’s answer, and asked her if she believed that
whoever had placed the shrubbery and installed the brick wall was negligent.
The question was asked several times, with Ms. Sousa declining to give a simple
answer until the court intervened:
Q. What’s the answer this time? Are you claiming
these people were negligent for putting that bush and that
wall there and that’s what caused injuries to the plaintiff
or not?
A. I’m saying that, yes, I think the wall and the
bushes there do obstruct your view and you have to pull
forward.
THE COURT: She’s not being responsive
to the answer.
MR. WEDDLE: Your Honor, I’d ask . . .
THE COURT: I instruct you to answer the
question about negligence, not that it obstructs the view.
Answer his question.
THE WITNESS: I don’t know whether that
would constitute them being negligent or not.
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Finally, the plaintiff’s attorney showed Ms. Sousa a photograph of
Murfreesboro Road taken from the driveway, and asked her if it showed anything
blocking the view:
Q. . . . But my question to you, I’d like you to
answer, is there’s not anything blocking your view down
Murfreesboro Road when you’re up here at this spot.
A. That’s not true, sir.
Q. The picture lies?
A. This picture is from down here. Right here.
Q. So if you had been –
THE COURT: If you’ll excuse me, I’m
going to instruct – there is no – she’s refusing to answer
that question. She wants to go on to another question.
THE WITNESS: When you are right here
behind this post you cannot see down the road.
III. The Standards for Reversal
Our judicial system charges the jury with the duty of deciding the
facts of the case under the supervision of the judge, while the province of the
judge is to “lay down the rules of law governing the parties without bias and
without interference in finding the facts.” McBride v. Allen, 720 S.W.2d 459,
463 (Tenn. Ct. App. 1979). This separation of functions is mandated by the
Tennessee Constitution, which states in Article VI, Section 9 that “[t]he Judges
shall not charge juries with respect to matters of fact, but may state the testimony
and declare the law.”
Though a judge is permitted to question a witness, even very slight
indications of opinion on the part of the judge can have a powerful impact upon
the minds of the jury. McBride v. Allen, 720 S.W.2d 459 (Tenn. Ct. App. 1979).
Thus, in order to protect the jury’s fact-finding role, judges must be very careful
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about expressing or intimating any opinion on any fact at issue. Graham v.
McReynolds, 18 S.W. 272 (Tenn. 1891). Improper comments from a judge can,
and sometimes do, result in reversal of a judgment. State v. Suttles, 767 S.W.2d
403 (Tenn. 1989); Cleckner v. Dale, 719 S.W.2d 535 (Tenn. Ct. App. 1986). The
comments of the trial judge could be construed as an indication that she had
reservations about Ms. Sousa’s credibility.
However, not every comment by a judge that can be deemed
improper requires reversal. The standard for this court to follow when dealing
with allegations of error below are found in the Rules of Appellate Procedure.
Rule 36(b) reads
“A final judgment from which relief is available and
otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a
substantial right more probably than not affected the
judgment or would result in prejudice to the judicial
process.”
Whether an error should be considered harmless or prejudicial
depends in part on how closely balanced the evidence is. If it is very close, then
an improper comment by a judge can more easily affect the judgment by tipping
the scales in favor of one party or the other. See State v. Suttles, 767 S.W.2d
403, 404 (Tenn. 1989).
We have read the entire trial transcript in this case, and we note that
the comments objected to did not involve central factual questions. More
importantly, we find that the evidence presented of Ms. Sousa’s fault was
overwhelming, while there was no evidence of any fault on the part of Ms.
Kanbi or of any other party, but merely speculation. Under such circumstances,
it is highly unlikely that the comments of the trial judge could have affected the
jury’s verdict. We accordingly affirm that verdict, and the judgment of the trial
court.
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III.
The judgment of the trial court is affirmed. Remand this
cause to the Circuit Court of Davidson County for further proceedings consistent
with this opinion. Tax the costs on appeal to the appellant, Patricia J. Sousa.
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
____________________________
WILLIAM B. CAIN, JUDGE
____________________________
PATRICIA J. COTTRELL, JUDGE
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