                       IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT NASHVILLE

______________________________________________________________________
_________

KENNETH O. BURNETT,                        Davidson Circuit No. 89C-337
and VICKIE S. BURNETT,                     C.A. No. 01A01-9505-CV-00196

   Plaintiffs/Appellees                    Hon. Paul R. White, Judge

VS.

FRANK E. KRISLE,
Individually and d/b/a ELITE
                                                 FILED
ELECTRIC                                          Dec. 22, 1995

   Defendant/Appellant.                          Cecil Crowson, Jr.
                                                  Appellate Court Clerk


ROBERT N. SKINNER, Nashville
Attorney for Defendant/Appellant.

J. ANTHONY ARENA, Schulman, LeRoy & Bennett, P.C., Nashville
Attorney for Plaintiffs/Appellees.

AFFIRMED

Opinion Filed:
______________________________________________________________________
________

TOMLIN, Sr. J.

       Kenneth O. Burnett and Vickie S. Burnett ("plaintiffs") filed suit in the Davidson

County Circuit Court against Frank E. Krisle, individually and d/b/a Elite Electric

("defendant") seeking damages resulting from a fire caused by defendant's negligence that

destroyed plaintiffs' home.    The jury awarded plaintiffs compensatory damages in the

amount of $90,733.56, reduced by a finding that plaintiffs were ten percent (10%) at fault.

Defendant's motion for a new trial was denied. On appeal defendant has presented three

issues for our consideration: (1) whether there was any material evidence in the record

to support the jury verdict; (2) whether the trial court erred in refusing to grant defendant

a new trial or a remittitur; and (3) whether the trial court erred in refusing to allow

defendant to present a witness for testifying after defendant had rested his case. We find

no error and affirm.



       Many of the basic facts are undisputed.      Plaintiffs employed a general contractor


                                             1
to construct an addition to their kitchen in their Nashville home.     The general contractor

in turn employed defendant to do the electrical work. When construction began plaintiffs

met with the general contractor and an employee of defendant to show them the location

of the circuit breaker box in the basement of their residence. Mr. Burnett showed the two

men the breaker on the circuit leading to the kitchen as well as the breaker for the circuit

leading to a recessed wall heater in the basement bathroom, which bore the label "leave

off."      Plaintiff testified that this bathroom heater had not been utilized since they

purchased the house six years earlier because the house was equipped with central

heating.

        On that same day defendant installed some of the wiring but left a portion of the

work unfinished. Approximately one week later another of defendant's employees entered

plaintiffs' home unannounced for the purpose of installing electrical outlets and a ceiling

fan. After completing this work, this employee activated the breaker switch to the lines

in the kitchen to ascertain if the wiring had been properly installed.       Shortly after this

employee left, the bathroom wall heater ignited combustibles in the bathroom, which

began a fire that destroyed the basement of plaintiffs' home and all of plaintiffs'

possessions in the house.



        The jury was submitted a special verdict form, which they answered as follows:



                1.     Was the defendant Frank E. Krisle, individually and
                d/b/a Elite Electric negligent?

                 Answer: Yes (Yes or No)

                       ....

                 2.     Was the defendant Frank E. Krisle, individually and
                 d/b/e Elite Electric's negligence a proximate cause of injury
                 or damage to the plaintiffs?

                 Answer: Yes (Yes or No)

                       ....

                 3. Did the plaintiffs Kenneth Burnett's and Vickie Burnett's
                 own negligence account for 50 percent or more of the total
                 negligence that proximately cause plaintiffs' injuries or
                 damages?


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              Answer: No (Yes or No)

                     ....

              4. What is the total amount of plaintiffs Kenneth Burnett's
              and Vickie Burnett's compensatory damages, determined
              without reference to the amount of their negligence?

              Amount in dollars: $90,733.56

              5. Using 100 percent as the total combined negligence which
              proximately caused the injuries or damages to the plaintiffs,
              what are the percentages of such negligence to be allocated to
              the plaintiffs Kenneth Burnett and Vickie Burnett and
              defendant Frank E. Krisle, individually and d/b/a Elite
              Electric?

              Plaintiffs (Kenneth Burnett and Vickie Burnett)                10%
               (0-100)

              +

              Defendant (Frank E. Krisle, individually and
                        d/b/a Elite Electric)                         90% (0-100)

                                                     (Total must equal 100%)



                                     I. Scope of Review



       Our scope of review on appeal of a jury verdict is limited to whether the record

contains any material evidence to support the verdict.       T.R.A.P. 13(d);   Hobson v. First

State Bank, 777 S.W.2d 24, 32 (Tenn. App. 1989). Under this scope of review, we must

take the strongest view of the evidence to uphold the verdict, assume the truth of all that

lends to support it, discard all to the contrary, and allow all reasonable inferences to

sustain the verdict. Hobson, 777 S.W.2d at 32. Even if we might reach a different verdict

from that reached by the jury, if there is any material evidence to support the verdict, we

must affirm. Id.



       In our opinion, there was ample material evidence to support the verdict the jury

has expressed in the special verdict form.        Plaintiffs testified that they pointed out the

location of the breaker to the wall heater circuit to defendant's employee, and at that time

the switch was in the "off" position and clearly labeled "leave off."          Plaintiffs further



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testified that they had never used this wall heater during the entire time they had lived in

the house because the house had central heating.



       The record reflects that another of defendant's employees arrived at plaintiffs' home

to complete the work at approximately 8:30 in the morning. He stated that he never saw

the warning label next to the wall heater circuit breaker and that at time he arrived the

basement was unlit and he did not have a flashlight with him.        He was uncertain as to

whether he had activated more than one breaker switch on the breaker panel after

completing his work. This issue is without merit.



                               II. The New Trial/Remittitur Issue



       In defendant's brief counsel bases his allegation of error on the part of the trial

court in failing to grant a new trial or remittitur on three aspects. First, defendant attacks

the jury’s award of damages for the loss of personal property of plaintiffs on the second

floor in light of testimony that there was no actual fire damage upstairs. This contention

raises again the question of whether there was any material evidence to support the

verdict. There was testimony to the effect that although only the basement portion of the

home was actually destroyed by fire, plaintiffs' personal property upstairs on the main

floor was completely destroyed by heat, smoke, and water damage.          This contention is

without merit.



       Next, defendant is bothered by a question the jury presented to the court during its

deliberation. A note from the jury stated:



                 Re Question #4: Does "compensatory damages" equate to the
                 jury agreeing that the total loss (home and belongings)
                 amounting to approx[imately] $91,000 is reasonable even if
                 it is reduced by some percentage in question number five?



Defendant contends that this question clearly indicated that the jury had arrived at a



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predetermined sum to be awarded plaintiffs before taking the negligence of defendant into

account.   We disagree.     It appears to the court that the jury was merely requesting a

clarification of the term "compensatory damages." In response to the jury's question, the

trial judge repeated the charge to the jury regarding comparative negligence. All this took

place in the presence of defendant's counsel, who neither complained of the action taken

by the trial court or requested further corrective relief. This contention is without merit.



       The third aspect of this issue raised by defendant deals with the failure of the trial

court to grant a new trial or remittitur based upon the alleged admitted negligence of

plaintiffs in failing or refusing to repair or replace a known and obvious hazard in the

form of the "defective wall heater." The trial court at the hearing on the motion for new

trial stated that he considered all the evidence and that there was sufficient evidence in the

record to support partial negligence on the part of both parties.             We agree.   This

contention is also without merit.



                              III. Defendant's "Sundown Witness"



       As this issue is presented by defendant in its brief, it would appear that defendant

complains of an action of the trial court in refusing to allow defendant to reopen his case

with what he contends to be a material witness. The record does not reflect this.



       Near the end of the first day of trial, counsel for defendant informed the court that

there was a witness that defendant was seeking to present as evidence but had not yet

responded to a subpoena.        It was ascertained that the witness in question had been

subpoenaed on that very day.        The court expressed some concern about the relevance of

the testimony of the proposed witness.         Following discussion between the court and

counsel for both parties, during which the court stated some doubt as to the relevance of

the testimony of the proposed witness of defendant, counsel for plaintiffs advised the

court that they would withdraw the offer of evidence that they were seeking to introduce

at that time. The following colloquy took place:

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               MR. SKINNER (defendant's counsel): I'll help you all I can.
               I say charge the jury.

               MR. ARENA (plaintiff's counsel): We can go right to closing
               arguments.

               MR. SKINNER: Yes, sir. Charge the jury.



       The jury was brought back into the courtroom, at which time the following brief

exchange took place:



               THE COURT:           Is that the conclusion of the defendant's
               proof?

               MR. SKINNER: That is the conclusion of our case in chief.
               We renew our motion [for directed verdict].



Court adjourned until the following morning for closing arguments and jury instructions.



       The following morning, following the convening of court, the following took place

outside the presence of the jury:



               MR. SKINNER: Let me also tell the court, the witness
               showed up this morning, first words to me, how did you find
               me? I said, the FBI found you. He said, If I ever find out, I'll
               get them.

                       He did not want to come to court. He was an unwilling
               witness, but he did come, and he brought the copies of his two
               reports. But I told him that as much as I'd like to use them, I
               had already committed myself yesterday to the court and
               counsel that we would proceed as we are now.

               THE COURT: I think the proof is closed.

               MR. SKINNER: Right.

               THE COURT: So we will move on to argument and charge.
               Okay. Is there anything else then before we get to final
               argument, any other matters or issues you want the court to
               address?

               MR. ARENA: Nothing I can think of, Your Honor.

               MR. SKINNER: If it please the court, I know of none at this
               time.



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       At no time during these proceedings did counsel for the defendant            challenge the

action of the court.    To the contrary, counsel for defendant facilitated the action of the

court by voluntarily, with no cajoling or prodding from the court, stating on three different

occasions that he had rested his proof and proposed to the court that the jury be charged.

In our opinion, counsel for defendant waived this issue by his actions. In the event that

we are wrong in this respect, and we contend that we are not, under the circumstances it

was within the trial court's right as a matter of discretion to proceed and conclude the trial

and we do not find any abuse of discretion in this regard. This issue is without merit.



       Accordingly, the judgment of the trial court is all respects affirmed. Costs in this

cause on appeal are taxed to defendant, for which execution may issue if necessary.



                                             _______________________________________
                                             TOMLIN, Sr. J.



                                             ________________________________________
                                             CRAWFORD, P.J.           (CONCURS)



                                      ________________________________________
                                            HIGHERS, J.               (CONCURS)




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