Margaret Danmole v. Charles L. Wright

MARGARET DANMOLE, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9512-CV-00565
v. )
) Davidson Circuit
CHARLES L. WRIGHT, ) No. 91C-501
)
Defendant/Appellant. )
FILED
June 26, 1996
COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
NEWTON S. HOLIDAY, III
Petway, Blackshear & Cain
208 Third Avenue North
Fifth Floor
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLEE
ALAN M. SOWELL
Gracey, Ruth, Howard, Tate & Sowell
150 Second Avenue North
Suite 201
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
Defendant, Charles L. Wright, has appealed from the judgment
of the trial court entered on the jury's verdict for plaintiff,
Margaret Danmole. The jury awarded plaintiff $17,000.00 for her
injuries and damages sustained as the result of an automobile
accident.
Plaintiff was injured when an automobile she was operating
collided with defendant's automobile at the intersection of Harding
Place and General Lowery Drive in Davidson County. Plaintiff was
traveling east on Harding Place, and defendant was attempting to
make a left turn onto Harding Place. The parties agree that there
was no traffic approaching from the west and that there was no
traffic in the center lane when the accident occurred.
Plaintiff claimed defendant's vehicle was rocking back and
forth into the eastbound lane of Harding Place. She testified that
within a matter of seconds she observed defendant's automobile
blocking half of the eastbound lane. As she approached the
intersection, she applied her brakes in an attempt to avoid a
collision. She then attempted to turn into the center lane, but
was unable to do so before the automobiles collided. Plaintiff
also contended that she was not speeding.
Defendant testified that a tree obstructed his view of
oncoming traffic. Because of this, he claimed it was necessary for
him to pull out into the eastbound lane in order to see. Defendant
also admitted that he was not wearing his corrective lenses.
Melanie Goad, a passenger in plaintiff's vehicle, testified
that it was apparent that plaintiff thought defendant was going to
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pull out into the intersection. She also testified that
defendant's automobile was several feet into plaintiff's lane of
travel.
The officer who investigated the accident testified that his
investigation revealed that plaintiff's vehicle left fifty-four
feet of skid marks. He further testified that, based on his
training and the evidence at the scene, plaintiff's minimum speed
was thirty-five miles per hour. The speed limit at Harding Place
was forty miles per hour. The investigating officer also placed
the point of impact several feet into the plaintiff's lane of
travel.
The issue in this appeal resulted from the fact that both
Dr. E. Dewey Thomas, an orthopaedic surgeon, and Dr. Joel Buckner,
a chiropractor, treated plaintiff. Specifically, defendant claimed
the trial court erred when it dismissed certain jurors for cause
because they stated that they would not be able to hear the
testimony of both doctors and to give due deference to their
testimony. That is, the trial judge dismissed each of the
perspective jurors after they had testified, in effect, that they
would give more weight to the testimony of the orthopaedic surgeon.
Defendant argued the trial court erred by striking the jurors for
cause and questioned the trial court's common law authority to
challenge a perspective juror for cause where the juror has
exhibited a "bias" and an inability to set aside those biases and
to render a fair and impartial verdict.
During voir dire, the trial judge questioned the panel, in
pertinent part, as follows:
THE COURT: Those of you who have been under the
care of a chiropractor, do you have an opinion
negative to a chiropractor? Please raise your
hand, if you do. Do you feel like a chiropractor
is not a competent profession, in general? Okay.
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Those of you who have never been to a chiropractor,
do you have a predisposition to believe a medical
physician, an orthopedist, is more competent, for
example, than a chiropractor? Please raise your
hand.
Okay. I'll have to start with you, Mr. Hoffman.
MR. HOFFMAN: Yeah, I don't have -- mean,
everything I've kind of picked up. I probably
don't think very much of chiropractors as health practitioners.
THE COURT: Ms. Daniels?
MS. DANIELS: A friend of mine had his ribs broken
by a chiropractor, so I don't have much use for
them.
THE COURT: Mr. Hudson.
MR. HUDSON: A friend of mine hurt his back. And
going back and forth to the chiropractor, and his
agony in talking about it, I don't think I would
ever want to go to one.
THE COURT: Okay. Ms. Morris?
MS. MORRIS: I work for an internal medicine
physician, and I just --
THE COURT: And you're prejudiced against
chiropractors?
MS. MORRIS: I would prefer to go to a doctor
before I'd go to a chiropractor.
THE COURT: Mr. Caul?
MR. CAUL: I wouldn't go to one. I would go to an
orthopedist, rather than a chiropractor, on the
basis of training.
THE COURT: Speak up, please. I didn't get that.
MR. CAUL: I would go to an orthopedist, rather
than a chiropractor, based on their general
training and background as I understand it.
THE COURT: Mr. Granbery?
MR. GRANBERY: I would have those same sentiments.
I think a medical doctor has a little better track
record. They've been around a little longer.
THE COURT: How about you, Mr. Burch?
MR. BURCH: I would agree with that, in that I've
seen a news report about abuse in chiropractic
involving car accidents.
THE COURT: Ms. Goree?
MS. GOREE: Pretty much I think what they're
saying. I think there is times when they are
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helpful; but I think I have concerns where they
take on things where you should see an orthopedist.
THE COURT: Is there a chiropractor in this case?
MR. SOWELL: Yes, but there's no deposition.
THE COURT: Is there proof?
MR. HOLIDAY: Yes, Your Honor, he's going to
testify.
THE COURT: I need to ask you: One of the live
witnesses is a chiropractor, and I want you to
search your soul and see if you believe you cannot
listen to his testimony, or consider what expert
testimony he'll produce to you, and maybe you will
change your opinion. In other words, do you have
closed minds about chiropractors? If you do,
please raise your hand.
Mr. Hoffman? Ms. Reed?
MS. REED: I would just like to comment. I said
I'd been under the care of a chiropractor, because
of the way you stated the question. I went to one
once, and all my other appointments were with an
orthopedist.
THE COURT: My question is: Do you have a
predisposition against chiropractors to the extent
you would give his or her evidence more or equal
credibility than you would an orthopedist? Could
you keep an open mind?
MS. REED: Yes.
THE COURT: Mr. Hoffman?
MR. HOFFMAN: I think I would have to say I would
take the word of a medical doctor, orthopedist,
over a chiropractor. Just from my experience, I
don't think I would be able to give him equal
weight.
THE COURT: I appreciate your honesty.
Does anyone else feel like Mr. Hoffman?
MR. FRANKS: I'm a physician. I believe in
medicine to be able to help people. But the system
is not reasonable to me, and I couldn't accept that
testimony as equal to that of a physician.
THE COURT: What is your specialty?
MR. FRANKS: I'm an anesthesiologist.
THE COURT: Ms. Goree?
MS. GOREE: I'm afraid I feel that way, too. I
grew up in Louisiana, and when I was growing up,
chiropractors were not even equal in the state of
Louisiana. I know I come in with a biased opinion
and would prejudge based on what I've observed.
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THE COURT: Yes, ma'am.
MS. GOREE: If they're both here, the orthopaedic
and the chiropractor, I would take the orthopaedic
over the chiropractor. If the chiropractor is the
only one, I would take his word for it.
THE COURT: There is orthopaedic testimony.
Mr. Hoffman, Ms. Daniels --
MR. SOWELL: Your Honor, if you're fixing to excuse
them, I would object. I don't think that's grounds
for cause. I think there can be a challenge from
Plaintiff's counsel; but I think it would be
improper to excuse them.
THE COURT: I'll note your objection. I'll excuse
Mr. Hoffman, Ms. Daniels, Ms. Goree, and Dr. Franks
as to cause.
Yes sir, Mr. Caul?
MR. CAUL: I would have difficulty dealing with the
evidence from the chiropractor in the absence of
other evidence offered by an orthopedist.
THE COURT: In this case, though, there is evidence
from both professions. It would be up to you to
weigh the evidence. Do you think you can do that
fairly?
MR. CAUL: I think I can do that, yes.
THE COURT: Ms. Morris?
MS. MORRIS: I would be biased. I would listen to
the orthopedist more so than the chiropractor.
THE COURT: The question is: Do you have an open
mind? Do you have a predisposition that would
prevent you from being fair?
MS. MORRIS: I would be more in favor of the
physician than the chiropractor.
THE COURT: I'm going to release you to go down to
the second floor.
MR. SOWELL: I want you to note my objection.
THE COURT: Anyone else that feels like you
couldn't be fair in listening to the proof in this
case and decide? That doesn't mean you have to
decide in favor of the chiropractor or the
orthopedist; but at least have an open mind and not
a shut mind.
The trial judge has "wide discretion in passing upon the
qualification of jurors in both civil and criminal cases." Vines
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v. State, 190 Tenn. 644, 648, 231 S.W.2d 332, 334 (1950). Absent
a clear showing of abuse of discretion, the trial judge's
determination of the jurors' qualifications is not subject to
review. Lindsey v. State, 189 Tenn. 355, 367, 225 S.W.2d 533, 538
(1949).
The ultimate goal of voir dire is to determine whether the
jurors are competent, unbiased, and impartial. The scope and
extent of voir dire rests within the discretion of the trial court.
State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992), cert. denied, 113
S. Ct. 1368, 122 L. Ed. 2d 1368 (1993). Even if the court errs by
excluding a juror for cause, the error is harmless unless the jury
who ultimately hears the case is not fair and impartial. State v.
Simon, 635 S.W.2d 498, 508-11 (Tenn.), cert. denied, 459 U.S. 1055,
103 S. Ct. 473, 74 L. Ed. 2d 621 (1982).
"It is axiomatic that a party is entitled to a jury composed
of persons free from bias or prejudice." Carney v. Coca-Cola
Bottling Works, 856 S.W.2d 147, 149 (Tenn. 1993). "'The right to
challenge is a right to reject, not to select a jury.'" Estep v.
State, 193 Tenn. 222, 226, 245 S.W.2d 623, 625 (1951)(quoting
Wooten v. State, 99 Tenn. 189, 199, 41 S.W. 813, 815 (1897)).
Parties to a law suit have a right to an impartial jury, but they
have no vested right to any particular juror. Graham v. United
States, 257 F.2d 724, 729 (6th Cir. 1958). The trial judge has the
power and it is his duty to discharge any juror who, for any
reason, cannot or will not be an unbiased juror. Walden v. State,
542 S.W.2d 635, 637 (Tenn. Crim. App. 1976). A juror must be free
of even a reasonable suspicion of bias or prejudice to meet the
requirement of impartiality. State v. Pender, 687 S.W.2d 714, 718
(Tenn. Crim. App. 1984).
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In the instant case, we find no evidence of abuse of
discretion on the part of the trial court. Moreover, there is not
even a scintilla of evidence in this record that the jury which
tried this case was anything other than fair and impartial.
Therefore, it results that the judgment of the trial court
is affirmed, and the cause is remanded to the trial court for
further necessary proceedings. Costs on appeal are taxed to the
defendant/appellant, Charles L. Wright.
__________________________________
SAMUEL L. LEWIS, J.
CONCUR:
_________________________________
HENRY F. TODD, P.J., M.S.
_________________________________
BEN H. CANTRELL, J.
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