Lee v. Lee

719 S.W.2d 295, 1986 Tenn. App. LEXIS 3014
CourtCourt of Appeals of Tennessee
DecidedMay 23, 1986
StatusPublished
Cited by11 cases

This text of 719 S.W.2d 295 (Lee v. Lee) 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
Lee v. Lee, 719 S.W.2d 295, 1986 Tenn. App. LEXIS 3014 (Tenn. Ct. App. 1986).

Opinion

OPINION

SANDERS, Judge.

The Defendant has appealed from a jury verdict awarding both compensatory and punitive damages to the Plaintiff in a suit for assault and battery.

The Plaintiff-Appellee, Elisha Lee, and the Defendant-Appellant, Luke R. Lee, are brothers. However, ill feelings had developed some time prior to the altercation here at issue. The events leading up to the altercation are not material to the issues before us but as a result of it Elisha was severely beaten by Luke with a l-by-3inch board.

Elisha filed suit against Luke for assault and battery, seeking both compensatory and punitive damages. Plaintiff-Appellee, Barbara Lee, wife of Elisha, joined in the suit asking for damages for loss of consortium. The jury returned a verdict in favor of Elisha, awarding $10,000 in compensatory damages and $17,500 in punitive damages. It also awarded Barbara $2,500 for loss of consortium.

Luke’s motion for a new trial was overruled, and he has appealed, presenting five issues for review.

The first issue relates to introduction of the l-x-3-inch board that was used by Luke in his assault on Elisha. The board in question had been filed as an exhibit in a criminal case against Luke growing out of the same affray as the civil suit. The board had written on it in large red letters, “State of Tenn. vs. Luke (Denny) Lee.” At the time the board was offered into evidence the only objection made to its introduction was “there has not been a proper foundation laid of when this was picked up....” Upon motion for a new trial Defendant insisted it was error for the court to have admitted the board into evidence because of the markings, “State of Tenn. v. Luke (Denny) Lee,” on it. Defendant’s counsel filed an affidavit in support of his insistence, in which, as pertinent here, she said:

“During the Defendant’s proof, Defendant’s counsel handled the piece of wood briefly to pass it to a witness, Brian Lee, for examination. Defense counsel did not examine it or look closely at it at this time.

“During the course of the jury’s deliberation, counsel for the plaintiff, Karl Spal-vins, told counsel for the Defendant, Janet Vest, he had gone to the Court the previous day, prior to offering the wood into evidence, and asked the Court to cover up or in some way hide markings which were in red on the piece of wood referring to the criminal case as State vs. Luke R. Lee and identifying this as property of the State. Mr. Spalvins told Ms. Vest the Court had refused to cover this and that it had gone to the jury in this manner.

“As counsel for the Defendant, I at no time was aware of these markings and expressed to Mr. Spalvins grave concern in the manner this had been brought before the jury without the knowledge of defense counsel.”

For the same reasons stated in the affidavit, Defendant insists in his brief he is entitled to a new trial. We cannot agree.

Since Defendant’s counsel had the exhibit in her possession and had an opportunity to examine it, he cannot now complain about a matter that he failed to call to the court’s attention at that time. An objection to the admission or exclusion of evidence must be specific and state the grounds for objection. See Jack M. Bass & Co. v. Parker, 208 Tenn. 38, 343 S.W.2d 879 (1961); Rogers v. Hollingsworth, 95 Tenn. 357, 32 S.W. 197 (1895); Knoxville Iron Co. v. Dobson, 83 Tenn. 409 (1885); Pickett v. Boyd, 79 Tenn. 498 (1883); Ingram v. Smith, 38 Tenn. 411 (1858).

The Defendant, if prejudiced by the admission of illegal testimony without objection when offered, may insist upon its exclusion from the jury at any time before their retirement from the bar, unless objec[297]*297tion has been explicitly waived. See Wilson v. Nashville, C & St.L. Ry., 16 Tenn. App. 695, 65 S.W.2d 637 (1933).

Defendant’s earlier objection to the exhibit on other grounds is not sufficient. His later objection on other grounds not mentioned or urged during trial comes too late. See Richmond v. Richmond, 18 Tenn. 343 (1837). Where no objections were made the objection is waived. See Sharp v. Wilhite, 21 Tenn. 434 (1841).

The Appellant’s second issue is: “The court erred in the exclusion of character witnesses offered by the Defendant solely for the purpose of testifying as to the reputation of the Defendant in his community as to truthfulness and veracity.”

In civil cases, except where the character or reputation of a party has been placed directly in issue, it is generally regarded as legally irrelevant in determining the issues in controversy and evidence of that type is not admissible. There is an exception to that general rule “where damages claimed embrace injury to feelings, as in action involving chastity, malicious prosecution, false imprisonment, or libel or slander.” Hager v. Hager, 17 Tenn.App. 143, 151, 66 S.W.2d 250 (1933).

Continental National Bank v. First National Bank, 108 Tenn. 374, 379, 68 S.W. 497 (1902) gave “[t]he rule in Tennessee is that in cases where a party is charged with a great moral wrong, he may introduce evidence of good character and invoke the presumption of innocence.” In Continental National Bank the court permitted evidence of the good character of a witness as to his business character and standing for honor and integrity.

Here, it was the peacefulness of Luke Lee which was at issue. His truthfulness and veracity were no more at issue here than in any other suit. “[T]he admission or exclusion of character evidence ... of the parties to the suit was within the sound discretion of the trial judge.” Benson v. Fowler, 43 Tenn.App. 147, 306 S.W.2d 49, 59 (1957), citing with approval Smith v. Tune, 2 Tenn.Civ.App. 503.

We fail to find the trial court abused his discretion in refusing to admit the testimony offered in this instance.

The Appellant’s third issue is: “Did the trial court err in charging the jury with respect to matters of fact in that the court repeatedly referred to the Defendant’s taking the law into his own hands?”

The Appellant complains of the following instructions given by the trial judge to the jury, in which he referred to “taking the law into his own hands.”

[W]e live in what we like to think is a civilized society, and the law provides a remedy for people who have suffered wrongs and when one takes the law into their own hands and attempts to provide their own remedy, they sometimes fall afoul of the law themselves.
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And, of course, ladies and gentlemen, intoxication is no defense to an assault and battery, nor, as I previously stated, is a battery justified for the reason of taking the law into your own hands or punishing someone for some wrong that they have done to you.

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Cite This Page — Counsel Stack

Bluebook (online)
719 S.W.2d 295, 1986 Tenn. App. LEXIS 3014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-lee-tennctapp-1986.