Brown v. Null

863 S.W.2d 425, 1993 Tenn. App. LEXIS 454
CourtCourt of Appeals of Tennessee
DecidedJune 30, 1993
StatusPublished
Cited by22 cases

This text of 863 S.W.2d 425 (Brown v. Null) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Null, 863 S.W.2d 425, 1993 Tenn. App. LEXIS 454 (Tenn. Ct. App. 1993).

Opinion

OPINION

TODD, Presiding Judge.

The captioned defendants have appealed from a jury verdict and judgment in favor of the captioned plaintiff in the amount of $100,-000 as damages for personal injuries sustained by plaintiff while a passenger in a vehicle which struck a tractor-trailer owned by the corporate defendant, which was operated by the individual defendant, and which was blocking the highway at night.

Appellants have presented five issues which will be discussed in the order deemed most appropriate. Appellants’ fifth issue is:

5. Whether the trial court erred by not allowing Defendants to exercise challenges for cause against two potential jurors who were either currently or formerly represented in civil matters by Plaintiffs attorney, Mr. Kerns.

Rule 6 of the Rules of this Court states in pertinent part:

Briefs. — (a) Written argument in regard to each issue on appeal shall contain:
1. A statement by the appellant of the alleged erroneous action of the trial court which raises the issue and a statement by the appellee of any action of the trial court which is relied upon to correct the alleged error, with citation to the record where the erroneous or corrective action is recorded.
2. A statement showing how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant’s challenge of the alleged error is recorded.
3. A statement reciting wherein appellant was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded.
4. A statement of each determinative fact relied upon with citation to the record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be considered on appeal unless the argument thereon contains a specific reference to the page or pages of the record where such action is recorded. No assertion of fact will be considered on appeal unless the argument upon such assertion contains a reference to the page or pages of the record where evidence of such fact is recorded.

Appellants cite pages 13, 20, 21, 23, 24 of the record. On page 13, the jurors, Bell and Stinson testified on voir dire that they had previously been represented in divorce proceedings by counsel for plaintiff. On page 20, both said jurors stated that, if they should need an attorney, they would probably use the same counsel again, and juror Bell denied that he would “give him more favor in this ease.” On page 23, juror Stin-son answered “yes” to a question as to whether his willingness to reemploy plaintiffs counsel “indicates that your association with him is considered to be favorable.” On page 24, both said jurors answered “no” to the question, “Is there a reasonable possibility that your association with Mr. Kerns may affect your verdict.”

On page 25 (not cited) the following occurred:

[427]*427THE COURT: And again I am not trying to put words in your mouth, but each case you feel that each case is a different one, or as I have heard some people in the country say, ‘Every tail sits on its own bottom.’
MR. BELL: Yes.
THE COURT: And that is basically the way you feel?
MR. BELL: Yes.
THE COURT: I think the two jurors are competent. You gentlemen may pass in your slips when you’re ready.
(WHEREUPON, the slips are passed in by counsel for both the plaintiff and defendant.)
THE COURT: Number 35, Mr. Ammon Stinson, you stand down, please.

(The slips passed in by counsel evidently indicated their peremptory challenges.)

No evidence is cited or found in the record indicating that either juror was challenged for cause or where such right was denied. It is suggested in plaintiffs brief that the reference in the above quotation indicates that juror Stinson was challenged for cause, but, other than the above quotation, no evidence is cited or found to support this suggestion.

Appellants argue without citation to the record that they were allowed only four peremptory challenges. Pursuant to Rule 6, this argument cannot be considered.

There is no showing of any prejudicial result from any wrongful denial of right to a fair jury.

No merit is found in appellants’ fifth issue. Appellants’ third issue is:
3. Whether the trial court erred in allowing into evidence the Appellant’s internal accident report containing hearsay statements.

Appellants’ brief cites pages 170, 175, 179, 181 in support of this issue. On page 175, plaintiffs counsel read from the deposition of Mrs. Eperson, an employee of the corporate defendant as follows:

‘Q. When he had this charge of preventable accident placed on his record as result of this December 11, 1987, accident, in addition to having that placed on his record did he receive any kind of suspension from work or any other disciplinary action?
A. I don’t know.’
Then on page 15, beginning at 24.
‘Q. He never told you — talking about Mr. Null — he never told you in your conversation with him that he saw Mr. Edwards’ car speeding?
A. No, sir.
Q. Did he ever tell you that he saw Mr. Edwards’ vehicle before the accident occurred?
A. No, sir.
Q. What did he tell you as to when he first did see the Edwards’ vehicle?
A As I said before, I only talked to him as far as to answer the interrogatories you submitted. In order to answer that question I would have to go back and look at the interrogatories that you submitted to find out if he mentioned that at all. I don’t know if the subject ever came up. I don’t think I can answer that.’
Then on page 17, line 6.
‘Q. Did Mr. Null report to you anything about Mr. Edwards failing to keep a proper look out ahead?
A. Not that I remember.’

On page 175, counsel read from the same deposition as follows:

‘A. Yes, this is a report that was prepared by Mr. Null.’
Then that is an exhibit, which I will submit to you later as part of the interrogatories. Then on page 6, line 1.
‘Q. Was Mr. Null disciplined in any way for this accident?
A Yes, he was.
Q. What was that?
A He received a chargeable accident, a preventable, chargeable accident that was added to his driving record.
Q. What does that do to him?
A. In the driver’s policy if they get X number of preventable accidents in any 12 month period of time consecutive 12 month period of time, they are discharged.

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Cite This Page — Counsel Stack

Bluebook (online)
863 S.W.2d 425, 1993 Tenn. App. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-null-tennctapp-1993.