Black v. Nashville Banner Pub. Co. , 24 Tenn. App. 137 ( 1939 )

On Petitions for Rehearing. This cause is before us on petitions for a rehearing filed by both parties.

1. The petition of the defendant in error Nashville Banner Publishing Company asks for a reconsideration of this court's holding that the trial court erred in failing to submit to the jury the issues whether Webb made the statement out of court that he "had been weighing Black's coal for two years and had yet to find him giving full weight," and whether the statement was true. The Banner insists that the plaintiff Black did not assign as error the court's failure to submit these questions to the jury.

In so holding in our original opinion, we were of the opinion that these questions were raised by the plaintiff's assignment of error B6, which was as follows: "The Court erred in taking from the jury the main issue of whether the defendant falsely reported that the plaintiff had been convicted in the City Court of selling coal by short weight, and in confining the jury to the single subordinate issue of whether Webb did or did not make the statement attributed to him in the course of said judicial hearing."

However, on the filing of the Banner's petition for a rehearing on the above ground, the plaintiff Black filed his petition for a rehearing on other grounds, and stated in his petition that the assignment of error, above set out, was not intended to raise this question.

In view of this statement, we think Black abandoned the assignment of error on this issue. Where an assignment is not insisted upon, it is deemed to have been abandoned. McDonnell v. Amo, 162 Tenn. 36, 41, 34 S.W.2d 212; State ex rel. v. Retail Credit Men's Ass'n, 163 Tenn. 450, 470,43 S.W.2d 918.

It results that the Banner's petition for a rehearing is granted, and our former opinion is modified to hold that the judgment of the lower court must be affirmed.

2. The plaintiff Black asks the court to reconsider its holding on the following errors assigned by him:

(a) The court erred in his charge to the jury as to the measure of damages.

(b) The court erred in accepting the jury's verdict as to damages.

We have again considered the questions raised and are constrained to deny the petition for the following reasons:

(a) The plaintiff fails to state wherein the court erred in his charge (Powers v. McKenzie, 90 Tenn. 167, 16 S.W. 559). This is conclusive of this question.

(b) On the second error the plaintiff contends that as the court instructed the jury "to determine the amount of damages to be awarded to the plaintiff," a verdict allowing no damages was void.

The jury evidently decided that as the Sealer of Weights and Measures and his assistants testified that they had examined Black's trucks and had found him short in every instance, he was not entitled to any damages. The trial judge agreed with the jury, and we agree with the trial judge.

Where the court charges the jury to award the plaintiff such damages as he is entitled to, the jury may give him nothing if they decide he is entitled to nothing. If he was guilty of giving short weights, he is not entitled to any damages for injury to his reputation, business or occupation, or for mental suffering or illness.

It results that the Banner's petition is granted and that Black's petition is denied, and our former judgment is reversed. A judgment will be entered in this court affirming the judgment of the lower court. The costs of the cause including the costs of the appeal are adjudged against Black and the sureties on his prosecution and appeal bonds.

Faw, P.J., and Felts, J., concur.