Albert Milam/Tina Milam v. Franklin Wilson ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________
ALBERT MILAM, JR., A Minor, FROM THE SHELBY COUNTY
by Mother and Next Friend TINA CIRCUIT COURT, THE
L. MILAM, and TINA L. MILAM, HONORABLE KAY S. ROBILIO,
Individually, JUDGE
Plaintiff-Appellant, AFFIRMED
Shelby Circuit No. 50240 T.D.
Vs. C.A. No. 02A01-9607-CV-00167
FRANKLIN D. WILSON, Tina L. Milam of Memphis
For Appellant
Defendant-Appellee.
Ed M. Hurley of Memphis
For Appellee
____________________________________________________________________________ FILED
MEMORANDUM OPINION1
June 20, 1997
__________________________________________________________________________
Cecil Crowson, Jr.
CRAWFORD, J. Appellate C ourt Clerk
This appeal involves an action to recover damages for personal injuries allegedly
sustained in an automobile accident. The plaintiffs, Albert Milam Jr., a minor, by his mother and
next friend Tina L. Milam, and Tina L. Milam, individually (the Milams), appeal from the
judgment of the trial court on a jury verdict for the defendant, Franklin D. Wilson (Wilson).
The amended complaint avers that on March 26, 1992, six-year-old Albert Milam was
riding as a passenger in an automobile driven by his mother, Tina Milam, when the Milams’
automobile was struck from behind by an automobile driven by Arthur L. Adams (Adams).2
Adams’s automobile had in turn been struck by an automobile driven by Wilson. The complaint
alleges that the defendants were guilty of various acts of negligence under the common law and
were guilty of negligence per se by violating various city ordinances and state statutes. The
complaint avers that the defendants’ negligence directly and proximately caused the collision and
the resulting losses, injuries, and damages to the plaintiffs. Wilson’s answer admits the accident,
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Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
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Adams was initially a defendant but was later voluntarily dismissed.
but denies the material allegations of the complaint and joins issue thereon. Wilson’s answer
also avers that the accident was directly and proximately caused by the negligence of Adams.
After a trial in which the Milams were represented by counsel, the jury returned a verdict
in Wilson’s favor. The trial court entered a judgment on the jury verdict on February 12, 1996.
On February 20, 1996, counsel for the Milams filed a motion for a new trial, asserting the
following grounds: (1) the weight of the evidence is contrary to a finding of the defendant as not
guilty; (2) the verdict is contrary to the weight of the evidence as to liability and damages; and
(3) the great weight and preponderance of the evidence are in favor of the plaintiffs as to the
liability of the defendant and damages. The trial court denied the Milams’ motion for a new
trial, and the Milams, now acting pro se, have perfected this appeal. The issues for review,
as stated in the Milams’ brief, are:
1. Was Defendant, Frank D. Wilson, hereinafter called Wilson or
Defendant, guilty of violating traffic regulations, reckless
operation, negligence and violating Plaintiffs’ rights in general
when he collided his vehicle, known as vehicle #1, into another
vehicle, known as vehicle #2, operated by Arthur L. Adams,
hereinafter called Adams, causing Adams’ vehicle #2 to collide
into Appellants’ vehicle, known as vehicle #3, causing Appellants
severe physical and body injuries? Were Appellants due
compensation for injuries, hospital bills and other monetary
losses due to the negligence of Defendant? Was verdict fair
although jurors fell asleep during trial?
We perceive the issues to be:
1. Whether there is material evidence to support the jury’s
verdict.
2. Whether the Milams received a fair trial when some of the
jurors fell asleep during the trial.
We will consider the second issue first.
The Milams contend that they did not receive a fair trial because some of the members
of the jury fell asleep during the trial. T.R.A.P. 3(e) provides in pertinent part:
[I]n all cases tried by a jury, no issue presented for review shall
be predicated upon error in the admission or exclusion of
evidence, jury instructions granted or refused, misconduct of
jurors, parties or counsel, or other action committed or occurring
during the trial of the case, or other ground upon which a new
trial is sought, unless the same was specifically stated in a motion
for a new trial; otherwise such issues will be treated as waived.
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T.R.A.P. 3(e). The Milams did not raise this issue in their motion for a new trial, and their
failure to do so constitutes a waiver of the issue on appeal. Hartsell v. Fort Sanders Reg’l Med.
Ctr., 905 S.W.2d 944, 950 (Tenn. App. 1995). This issue is without merit.
As to the Milams’ first issue, we will construe their motion for a new trial that asserts the
verdict was contrary to the weight of the evidence to include the assertion that there is no
material evidence to support the verdict.
In reviewing a judgment based upon a jury verdict the appellate courts are not at liberty
to weigh the evidence or to decide where the preponderance lies, but are limited to determining
whether there is material evidence to support the verdict. Overton v. Davis, 739 S.W.2d 2, 2-3
(Tenn. App. 1987). In determining whether there is material evidence to support the verdict, the
appellate court is required to take the strongest legitimate view of all the evidence in favor of the
verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to
sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there
is any material evidence to support the verdict, it must be affirmed. Id. (citing Crabtree
Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)).
The record does not contain a transcript or statement of the evidence. In the absence of
a transcript or a statement of the evidence, we must conclusively presume that every fact
admissible under the pleadings was found or should have been found favorably to the appellee.
Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. App. 1994) (citing Lyon v. Lyon, 765 S.W.2d 759,
763 (Tenn. App. 1988)). This issue is also without merit.
Accordingly, the judgment of the trial court is affirmed. Costs are assessed against the
appellants.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
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