                                               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.




                            15
