FILED IN THE COURT OF APPEALS OF TENNESSEE March 6, 1996
Cecil Crowson, Jr. Appellate C ourt Clerk
JULIE HARLAN, Individually : SULLIVAN LAW and as Next Friend of : CA No. 03A01-9509-CV-00311 JAMES K. HUNT, II, a minor : : Plaintiffs-Appellees : : vs. : : JAMES F. LOVETT : : Defendant-Appellant :
and HON. RICHARD LADD JUDGE
SONJA BLACKBURN : : Plaintiff-Appellee : : vs. : : JAMES F. LOVETT : : Defendant-Appellant : AFFIRMED AND REMANDED
BURKETT C. McINTURFF, OF KINGSPORT, TENNESSEE, and SHELBURNE FERGUSON, JR., OF KINGSPORT, TENNESSEE, FOR APPELLANT
JOSEPH F. HARRISON, WITH HARRISON & KENNEDY, OF BRISTOL, TENNESSEE, FOR APPELLEES JULIE HARLAN AND JOHN K. HUNT, II
DAVID S. BUNN, WITH MASSENGILL, CALDWELL, HYDER & BUNN, OF BRISTOL, TENNESSEE, FOR APPELLEE SONYA BLACKBURN O P I N I O N
Sanders, Sp.J.
The Defendant has appealed from a jury verdict
awarding compensatory and punitive damages for his conversion
of seven saddle horses.
In May, 1992, the Plaintiff-Appellee, Julie Harlan
and Defendant-Appellant James F. Lovett entered into an oral
lease agreement whereby Mr. Lovett leased to Ms. Harlan a
tract of farm land containing approximately 83 acres located
in the 5th Civil District of Sullivan County. The lease was
on a month-to-month basis for which Ms. Harlan was to pay $275
per month in advance. The land was fenced and had a barn
located on it. Ms. Harlan was to have the use of the barn and
was to make necessary repairs to the fence. She owned five
horses and a pony. Her minor son, James K. Hunt, II, owned a
joint interest with her in one of the horses. At the time the
lease was entered into Ms. Harlan stated her purpose in
leasing the property was for breeding, raising, and training
jumping horses.
Ms. Harlan paid her first month's rent in advance on
May 27 when she made her lease with Mr. Lovett but there were
delays in the payment of the June, July, and August rents.
She paid the rent for these months except for $25 on the
August rent and she did not pay any rent after the partial
payment for August.
2 Immediately after signing the lease agreement, Ms.
Harlan moved her five horses and the pony onto the property.
Approximately a month later the Plaintiff-Appellee, Sonja
Blackburn, with the consent of Ms. Harlan, but without the
knowledge of Mr. Lovett, moved two of her saddle horses onto
the property. Although Mr. Lovett was aware of the fact that
two additional horses had been placed on the property, he
assumed they belonged to Ms. Harlan or members of her family.
After Ms. Harlan stopped paying rent on the
property, Mr. Lovett called her on the telephone requesting
payment. She promised to get back in touch with him, but
never did. On October 27, 1992, he wrote her a certified
letter stating he would turn the matter over to his attorney
if she did not pay her rent within five days. She did not
respond. Also, by October most all the grass on the property
had been grazed off by the horses and they began breaking
through the fence on the property, apparently in search of
food. They were getting on the property and into the fields
of adjoining property owners as well as on the greens and
fairways of Rock Creek Golf Course, which was located nearby,
and damaging the golf course.
Mr. Lovett continued his efforts to establish
communications with Ms. Harlan. He called her residence but
she would not return his calls. It reached the point where he
would call and when his voice was apparently recognized, the
party would "hang up." Mr. Lovett did not know Ms. Blackburn
nor did he know two of the horses belonged to her, so she was
never called. Ms. Blackburn testified she made her
arrangements with Ms. Harlan and not Mr. Lovett to put her
3 horses on Mr. Lovett's property. The record also shows that,
although Ms. Blackburn fed her horses regularly, by December,
1992, the horses belonging to Ms. Harlan had become so poor
and emaciated "you could count their ribs."
Mr. Lovett testified he was fearful he would be
liable for damages which might be caused by the horses to
other properties, both private and public. He was fearful
they might injure some child or other person or they might get
on the highway and be involved in an accident. He further
contended he had concluded that, since Ms. Harlan would not
return his calls and the horses had gotten in such poor
condition, she had decided to abandon them, and he decided to
send them to the stockyard for sale. He called Mr. Dennis
Widener, who hauled livestock and told him he had some horses
for sale and asked him to take them to the stockyard. Mr.
Widener went to the premises and Mr. Lovett sold them to him
for $1,200. Mr. Widener picked the horses up on December 2,
1992, and took them to the stockyard where he sold them for
$1,750.
After the horses had been taken to the stockyard and
sold by Mr. Widener, Ms. Blackburn went to the premises where
the horses had been kept and discovered they were missing.
Ms. Blackburn reported to Ms. Harlan the horses were missing
and Ms. Harlan gave her Mr. Lovett's telephone number and
suggested she call him, which she did. Mr. Lovett told her he
had sold the horses to Mr. Widener. Ms. Blackburn, in turn,
called Mr. Widener and then went to the stockyard in search of
the horses, but they could not be located. Some two or three
weeks later, the pony and one of the horses belonging to Ms.
4 Harlan were located and returned to her. In the interim, Mr.
Lovett deducted $850 for rent from the $1,200 which he had
gotten from the sale of the horses and sent Ms. Harlan a check
for the balance.
Ms. Blackburn and Ms. Harlan each filed separate
suits against Mr. Lovett. Ms. Harlan also brought suit on
behalf of her infant son, James K. Hunt, II, who was co-owner
with her of one of the horses. The Plaintiffs alleged in
their complaints that the Defendant, by selling their horses,
had wrongfully converted them to his own use and benefit.
They each asked for compensatory and punitive damages and
demanded a jury to try the cause.
The Defendant, for answer, filed a general denial of
the allegations in the complaints. As an affirmative defense,
he alleged that the Plaintiffs' failure to keep their animals
within the confines of the fence and letting them run at large
subjected him to damages.
An agreed order of consolidation of the cases for
trial was entered and after pretrial depositions were taken
the Plaintiffs each filed motions for partial summary judgment
on the issue of liability pursuant to Rule 56, TRCP. In
support of the motion, they relied upon the pleadings, the
affidavits of the Plaintiffs, and the deposition of the
Defendant.
The Defendant filed a response to the motions for
summary judgment denying the Plaintiffs were entitled to
summary judgment because there were genuine issues of material
5 facts for trial. He also filed an affidavit in support of his
response.
The affidavits of the Plaintiffs stated they were
the respective owners of the horses. They had not given the
Defendant permission to sell their horses and they did not
know they were going to be sold.
In Mr. Lovett's deposition, he admitted he sold the
horses to Mr. Widener for $1,200 and he was not the owner of
the horses.
Upon the hearing, the court found there was no
genuine issue as to the material facts concerning conversion
of the horses, and sustained the motions for summary judgment.
Upon the trial of the case, the court instructed the
jury he had previously held the Defendant was liable for
damages and it was their duty to determine the amount of those
damages.
As pertinent, Ms. Blackburn testified one of her
horses was a 14-year-old thoroughbred quarter horse which had
won a number of ribbons as a show horse and was worth $5,000
on December 2, 1992, the day he was sold. Her other horse was
a dappled gray Arabian saddlebred cross four years old, who
had a lot of training and had a value of $10,000 at the time
he was sold.
Ms. Harlan testified as to the value of the five
horses she had on the farm at the time they were sold and
6 listed them by their names as follows: Tiny - a dappled gray
registered English Shire stallion, $13,500; White Oak - a
thoroughbred two-year-old quarter horse, $8,000; Chesty - a
14-year-old crossbred brood mare, $3,000; Black Star - a nine-
month-old filly, $5,000; Valor - a young horse owned jointly
with her son, $2,500, for a total of $32,000.
There was considerable disagreement among the
witnesses as to the physical condition of Ms. Harlan's horses
on the date of sale. She testified they were in good
condition at the time she last saw them two days before they
were sold. Other witnesses who saw them shortly before the
sale and those who saw them on the date of the sale testified
they were in very poor condition. The Defendant introduced a
picture of Tiny, the registered stallion, which was made after
the sale. It depicted him in extremely poor condition, having
lost about 50% of his normal weight. A veterinarian testified
his condition was the result of starvation. Ms. Harlan
insisted this weight loss had occurred during the two or three
weeks between his sale and when he was returned to her. Other
witnesses testified that was his condition at the time of the
sale.
At the close of Plaintiffs' proof, Defendant moved
for a directed verdict as to the complainant's claim for
damages for the loss of Tiny, the registered Shire stallion,
because she had reclaimed the horse and had offered evidence
only as to his value as of the date of the sale.
The court overruled the motion and over Defendant's
objection permitted counsel for the Plaintiff to recall Ms.
7 Harlan to testify as to the difference in the value of the
horse between the date of sale and the date she recovered him.
On recall, Ms. Harlan testified that on the date of
sale he had a value of $13,500; when he was returned he had a
value of $7,000.
At the conclusion of all the proof, the court again
charged the jury he had found the Defendant liable in damages
to the Plaintiffs and it was their duty to fix the amount of
damages. The jury was given special verdicts to fix the
amount of compensatory damages for the conversion of each
horse. They were also asked to say "yes" or "no" to the
question of whether by clear and convincing evidence the
Defendant was liable for punitive damages. Upon consideration
of the issue of punitive damages, the jury found the Defendant
liable for punitive damages in the following amounts: To Ms.
Harlan $10,000, to John K. Hunt, II, $50, and to Ms. Blackburn
$3,500. Judgments were entered in keeping with the jury
verdict.
The Defendant filed a motion for a new trial, which
was overruled, and he has appealed, presenting the following
issues for review: 1. "Did the trial court err when it
entered summary judgment for the Plaintiffs against the
Defendant finding that the Defendant converted the horses of
the Plaintiffs when in fact and law the Defendant had a lien
on said horses for his rental for pasturage?" 2. "Was the
charge to the jury as presented by the trial court stated in
language that was at such an elevated educational level that a
jury of average intelligence would be unable to comprehend and
8 follow its instructions all to the detriment of the Defendant
in this case?" 3. "Did the trial court err in charging the
jury regarding the proper measure of damages when the trial
court failed to explain how the jury could determine fair
market value as opposed to diminution of value?"
We find no reversible error in any of the issues
presented, and affirm for the reasons hereinafter stated.
In support of Appellant's insistence that the court
was in error in holding he had converted the horses when, in
fact, he had a lien on the horses for rental pasture, he
relies upon TCA § 66-20-101 which provides:
Pasturage lien.-- When any horse or other animal is received for pasture for a consideration, the farmer shall have a lien upon the animal for the farmer's proper charges, the same as the innkeeper's lien at common law; and in addition the farmer shall have a statutory lien for six (6) months.
The Appellant, in his brief, presents a persuasive
argument, supported by good authority, that the holder of a
lien under the statute quoted above has priority over the
owner of the property. Under the facts in the case at bar,
however, the reliance by the Appellant upon the statute is
misplaced. The Appellant did not "receive to pasture for a
consideration" the horses of the Plaintiffs. He leased his
83-acre tract of land to the Plaintiff, Ms. Harlan, for her to
breed, train, feed and pasture her horses.
There is another compelling reason, however, why the
Appellant cannot prevail on this issue. He did not raise this
issue in the trial court and raises it for the first time on
9 appeal, which cannot be done. Thomas v. Noe, 42 Tenn.App.
234, 301 S.W.2d 391 (1956: Tops Bar-B-Q, Inc. v. Stringer,
Tenn.App., 582 S.W.2d 756 (1977) Moran v. City of Knoxville,
Tenn.App., 600 S.W.2d 725 (1979); Harrison v. Schrader, Tenn.,
569 S.W.2d 822 (1978).
Issues 2 and 3 in the Appellant's brief relate to
the content of the court's charge and were both raised for the
first time in the Appellant's motion for a new trial. They
will be considered together.
The second issue avers that the language of the
court's charge to the jury was elevated to an educational
level above what an average juror could comprehend and
understand. Apparently, because of the unique nature of
Appellant's objection to the charge, the court entered an
order permitting the Appellant to supplement the record with
the deposition of Dr. John Taylor, a professor in the College
of Education at East Tennessee State University with a
specialty in reading education.
We have very carefully considered the testimony of
Dr. Taylor and find it persuasive. We find it enlightening on
ways our usual complicated charges to a jury could be improved
insofar as being more intelligible and understandable to the
average juror. Dr. Taylor testified he had read the court's
charge and had analyzed it for readability. Excerpts from his
testimony are as follows:
"A. I applied a variety of readability formulas to
it...and I obtained results that varied somewhat from formula
to formula and from passage to passage, but the general
10 conclusion is that it's a very difficult piece of material to
-- linguistically. I compared it to the results of the same
formulas applied to textbooks used in our College of Medicine
for first year medical students, and it's approximately the
same level of difficulty as the textbooks that med students
use.
"Q. Is there a way to say what grade level that this
charge might be read at?
"A. Approximately, the college graduate level. ....
"Q. What do readability formulas look to, to determine
whether something is able to be comprehended?
"A. There are a number of variables depending upon the
specific formula, but the two most common variables are word
length and sentence length. Polysyllabic words are more
difficult than monosyllabic words; longer sentences are more
difficult than shorter sentences. .... [A]nd some of them
include other variables, such as number of personal pronouns
makes readability easier. In a couple of formulas, there are
actual lists of words to be considered easy words. Other
words...are considered to be difficult words. ...[A]problem
with readability difficulty is that it doesn't provide total
information in terms of the conceptual variables involved.
They do not indicate the difficulty caused by lack of common
concepts between the person presenting the material and the
person receiving it.
Q. ....
A. A number of concepts involved in this document [the
court's charge] would be difficult and unfamiliar to most of
us who are not in this field.
"Q. In regard to this specific charge, are there ways
that this charge could be presented that would be more
11 readable or more comprehensive -- comprehended by individuals
that you find on an ordinary jury?
"A. ....I would judge that it could be re-presented in
simpler language.
"Q. ....
"A. It would take both knowledge of the legal elements
involved and knowledge of the language.
"Q. Specifically....
"A. Shorter, less complicated sentences. And if there
were some way to make the entire document -- the entire charge
briefer, it would be of great benefit."
We find Dr. Taylor's testimony interesting and
enlightening but, under the law applicable to the case at bar,
we cannot say there is reversible error.
In Appellant's third issue he says the court, in its
charge to the jury, "failed to explain how the jury could
determine fair market value as opposed to diminution of
value." The basis for this insistence by the Appellant is the
fact that out of the seven horses sold on December 2, one of
them was recovered by the owner on December 19. Ms. Harlan,
the owner of the horse, testified the value of the horse was
$13,500 on the day he was sold. She later testified his value
when she recovered him was $7,000. In his charge on this
issue, the court charged the jury as follows: "Now, as I said
earlier, I already found liability by the Defendant to the
Plaintiffs for the compensatory damages. This is for damage
to Plaintiffs' property. If the horses were taken and not
returned, the measure of damages is the fair cash market value
of the horses as of December 2nd, 1992. If the horse was
12 returned, the measure of damage is the reduced market value,
if any, of the horse as a result of the conversion in
December, 1992. In other words, the measure of damages would
be the difference in value of the horse at the time it was
taken and at the time it was returned, if there was any
difference."
In the case of Mitchell v. Smith, 779 S.W.2d 384,
390 (Tenn.App.1989), as pertinent, the court said:
The trial court's instructions are the jury's only proper source of the legal principles to guide its deliberations. State ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961). Accordingly, trial courts should give substantially accurate instructions concerning the law applicable to the matters at issue. Street v. Calvert, 541 S.W.2d 576, 584 (Tenn.1976). The instructions need not be perfect in every detail, Davis v. Wilson, 522 S.W.2d 872, 884 (Tenn.Ct.App.1974), as long as they are, as a whole, correct. In re Elam's Estate, 738 S.W.2d 169, 176 (Tenn.1987).
We find the court's charge on the third issue to be
correct and sufficient.
There is another compelling reason, however, why we must
affirm the trial court on both the second and third issues. It was
the duty of the Appellant, at the trial, to call to the court's
attention the objectionable portions of the charge to the jury
about which he now complains and to submit to the court further and
adequate charges to correct the portion of the charge now
complained of. In the case of Provence v. Williams,
62 Tenn.App.371, 462 S.W.2d 885, 899, the court said:
It is an established general rule in this state that a party must call the trial judge's attention to that part of the jury instructions which the party believes to be inadequate, equivocal or confusing, and to submit a request for additional instructions, if the party intends to predicate error upon meagerness of the charge or
13 possible ambiguity. Womac v. Casteel, 200 Tenn. 588, 292 S.W.2d 782. (Emphasis ours.)
In the case of Trentham v. Headrick, 35 Tenn.App. 330,
245 S.W.2d 632, 635 (1950), the court said:
Under our decisions inadequate instructions in a charge to the jury are not reversible error when the party affected thereby fails to call the error to the attention of the court, and when adequate and further instructions are not requested. [Citations omitted.] In considering this question our Supreme Court, in Carney v. Cook, supra [158 Tenn. 333, 13 S.W.2d 325], said: "..., counsel engaged in a trial should aid the court by calling his attention to an abstraction or an inadvertence in delivering his instructions to the jury, and where they fail to do so, this court will not reverse unless convinced that the party complaining has been prejudiced by such instruction, or that justice is about to miscarry."
In the case of Rule v. Empire Gas Corp., 563 S.W.2d 551
(Tenn.1978) our supreme court made is clear Rule 51.02, TRCP, did
not alter the rule laid down in prior decisions that "counsel
engaged in a trial should aid the court by calling his attention to
an abstraction in delivering his instructions to the jury, and
where they fail to do so, this court will not reverse unless
convinced that the party complaining has been prejudiced by such
instruction, or that justice is about to miscarry." Id. 553. The
Rule court went on to say:
We hold that Rule 51.02 of the Tennessee Rules of Civil Procedure has not abolished or altered the rule announced in the Provence and Holmes cases, supra, that in order to predicate error upon an alleged omission in the instructions given to the jury by the trial judge he must have pointed out such omission to the trial judge at trial by an appropriate request for instruction.
Id. 554.
In the later case of Forde v. Fisk University, 661 S.W.2d
883, 887 (Tenn.App.1983) this court, in addressing the issue, said:
14 Appellant next insists that the instructions to the jury were inadequate. In such event, it is the duty of the complaining party to submit special requests for additional clarifying instructions; and failure to do so constitutes a waiver of the inadequacy. Rule v. Empire Gas Co., Tenn.1978, 563 S.W.2d 551.
We have been cited to no authority, nor have we found
any, where the complaint of the court's charge was the same or
similar to the complaint of the Appellant in his second issue. The
case we have found that appears to be related to the case at bar is
the old case of Malone v. Searight, 76 Tenn. 91, 8 Lee 91 (1881) at
94, where the court said:
The trial judge can not be put in error by the mere inaccurate use of words, not excepted to at the time, when we can see that it was intended to convey a correct rule, and could not, when taken in connection with the residue of the charge, having [sic] misled the jury. .... If the charge actually assume[s] as conceded a particular fact, it is the duty of the party to object to the assumption at the time.
The issues are found in favor of the Appellees. The
judgment of the trial court is affirmed. The cost of this appeal
is taxed to the Appellant and the case is remanded to the trial
court for any further necessary proceedings.
__________________________ Clifford E. Sanders, Sp.J.
CONCUR:
______________________ Herschel P. Franks, J.
______________________ Don T. McMurray, J.