        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE

                                                   FILED
                                                    February 11, 2000
CECILIA KANBI,                       )
                                     )             Cecil Crowson, Jr.
      Plaintiff/Appellee,            )            Appellate Court Clerk
                                     )   Appeal No.
                                     )   M1999-00025-COA-R3-CV
VS.                                  )
                                     )   Davidson Circuit
                                     )   No. 97C-778
PATRICIA J. SOUSA,                   )
                                     )
      Defendant/Appellant.           )


  APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
               AT NASHVILLE, TENNESSEE

           THE HONORABLE CAROL L. SOLOMAN, JUDGE



J. MITCHELL GRISSIM, JR.
JOHN P. SHEAHAN, JR.
325 Union Street
Nashville, Tennessee 37201
      Attorneys for Plaintiff/Appellee

JAMES C. MCBROOM
211 Printers Alley, Suite 502
Nashville, Tennessee 37201
      Attorney for Defendant/Appellant



                      AFFIRMED AND REMANDED



                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, M.S.


CONCUR:
CAIN, J.
COTTRELL, J.
                                 OPINION


              In this auto accident case, the jury found the defendant liable for the

plaintiff’s injuries, and the trial court entered a judgment on the verdict. The sole

issue on appeal is whether the judge’s comments from the bench during the

testimony of the defendant constituted reversible error. Under the circumstances

of this case, we find the judge’s comments to be harmless error at most, and we

affirm the trial court.



                          I. An Auto Accident and a Trial



              This case arose from an auto accident that occurred on September

30, 1996. At about 11:00 a.m. on that day, Cecilia Kanbi was driving her red

Sentra automobile down Murfreesboro Road in an eastward direction, when a

green Cougar driven by Patricia Sousa drove from a parking lot driveway and

entered the road, striking Ms. Kanbi’s car on the right side and pushing it into the

median.



              An ambulance transported Ms. Kanbi to Southern Hills Medical

Center, where she was examined and treated for back and neck pain. She was

released and told to follow up with her own doctor. Ms. Kanbi was treated for

two months by her chiropractor, but her pain has persisted, causing her to curtail

many of her activities, including her participation as a dancer with Odomankoma,

a traditional Ghanaian dance troupe.



              Ms. Kanbi filed a complaint on March 10, 1997, asking for

compensatory damages of $15,000. During trial, Ms. Sousa admitted that while

she was attempting to cross Murfreesboro Road, her car struck the plaintiff’s.

She testified that before she pulled out into Murfreesboro Road, she came to a

complete stop, and that she looked to her left but did not see the plaintiff’s car
                                        -2-
or any other car coming in her direction. She admitted that she was largely

responsible for the accident, but she contended that she could not be held 100%

responsible, on the theory that since she did not see Ms. Kanbi’s car advancing

down the road, it could be inferred that the plaintiff had been speeding.



             The only eyewitness of the accident to testify at trial, other than the

plaintiff and the defendant, was Ms. Stephanie Harris. Ms. Harris testified that

she was traveling eastward on Murfreesboro Road at about 40 or 45 miles per

hour; that the red Sentra was traveling slightly ahead of her at the same speed;

that she saw the green Cougar slow down at the end of the driveway, but that it

did not stop; and that the driver of the Cougar did not turn her head in the

direction of oncoming traffic before entering the roadway.



             At the conclusion of the evidence, the judge instructed the jury on

the relevant principles of law, including comparative fault, and gave them a

Special Verdict Form to record their conclusions. The jury found that Patricia

Sousa was 100% negligent and that Cecilia Kanbi was not negligent at all. They

also found that Ms. Kanbi had suffered damages in the amount of $18,000. The

plaintiff filed a motion to confirm the jury verdict, but to modify it so that it

would conform to the ad damnun clause in her complaint. The court granted the

motion, and entered a judgment against the defendant in the amount of $15,000.

This appeal followed.



                          II. The Judge’s Comments



             The appellant argues that four times during the course of the

defendant’s cross-examination, the trial court made improper comments that had

the effect of unfairly undermining the jury’s belief in her credibility. We have

copied the relevant portions of the trial transcript below, and highlighted the



                                       -3-
particular phrases the appellant objects to, in order to create a context for further

discussion.



              In the first instance, the plaintiff’s attorney had elicited Ms. Sousa’s

admission that the accident was partially her fault, and was questioning her as to

the circumstances, when she unexpectedly denied that her car did not move after

the impact that threw Ms. Kanbi’s car to the median. After a series of questions

and non-responsive answers as to what Ms. Sousa actually saw or remembered,

the attorney attempted to impeach her by reading her earlier deposition

testimony:

                    Q. Let’s read along together with Line 2. The
              question I asked you. “At the point of impact your
              vehicle didn’t move and hers was next to the median”
              What was your answer?

                     A. Yes.

                     Q. No. What was your answer?

                     A. Yes.

                     Q. Read Line 4.

                     A. “Uh-huh.”

                   Q. And I asked you, “Is that a yes?” And you
              answered?

                     A. Yes.

                     Q. Is that the truth?

                          THE COURT: I think she’s testified to that.
              That’s asked and answered. Today she’s changing her
              testimony.



       Shortly thereafter, Ms. Sousa was questioned as to her employment status

at the time of the accident, and her answer confused the plaintiff’s attorney:

                     Q. Now we’ve heard a lot about your being
              recruited down here to come work in the health care
              industry from Canada. The truth of the matter is on the
              day you hit Ms. Kanbi, you didn’t have a job, did you?

                     A. Yes, I did have a job in November.


                                             -4-
                    Q. You did have a job?

                    A. Uh-huh. I was not working at the time.

                   Q. So now you’re changing what you just said
             about you didn’t have a job. Were you –

                          MR. SCUDDER: Objection, Your Honor.

                           THE COURT: Well, you opened the door
             with what I thought was irrelevant testimony anyway, and
             now he’s cross-examining her about it. And apparently
             there is good reason. So I’m going to let him do it. She
             needs to get her answers consistent and straight
             because there’s a lot of discrepancies here. Go ahead.
             I mean, it’s real simple. Were you working?

                           THE WITNESS: I wasn’t working, but I had
             a job to go to in November.



      During pre-trial discovery, Ms. Sousa had responded to an interrogatory

question about the identity of any person or entity whose acts of negligence

contributed to the plaintiff’s injuries, by referring to shrubbery and a brick wall

near the bottom of the driveway that allegedly obstructed her view. At trial, the

plaintiff’s attorney read Ms. Sousa’s answer, and asked her if she believed that

whoever had placed the shrubbery and installed the brick wall was negligent.

The question was asked several times, with Ms. Sousa declining to give a simple

answer until the court intervened:

                    Q. What’s the answer this time? Are you claiming
             these people were negligent for putting that bush and that
             wall there and that’s what caused injuries to the plaintiff
             or not?

                   A. I’m saying that, yes, I think the wall and the
             bushes there do obstruct your view and you have to pull
             forward.

                         THE COURT: She’s not being responsive
             to the answer.

                           MR. WEDDLE: Your Honor, I’d ask . . .

                         THE COURT: I instruct you to answer the
             question about negligence, not that it obstructs the view.
             Answer his question.

                         THE WITNESS: I don’t know whether that
             would constitute them being negligent or not.


                                         -5-
      Finally, the plaintiff’s attorney showed Ms. Sousa a photograph of

Murfreesboro Road taken from the driveway, and asked her if it showed anything

blocking the view:

                  Q. . . . But my question to you, I’d like you to
             answer, is there’s not anything blocking your view down
             Murfreesboro Road when you’re up here at this spot.

                     A. That’s not true, sir.

                     Q. The picture lies?

                     A. This picture is from down here. Right here.

                     Q. So if you had been –

                           THE COURT: If you’ll excuse me, I’m
             going to instruct – there is no – she’s refusing to answer
             that question. She wants to go on to another question.

                          THE WITNESS: When you are right here
             behind this post you cannot see down the road.



                        III. The Standards for Reversal



             Our judicial system charges the jury with the duty of deciding the

facts of the case under the supervision of the judge, while the province of the

judge is to “lay down the rules of law governing the parties without bias and

without interference in finding the facts.” McBride v. Allen, 720 S.W.2d 459,

463 (Tenn. Ct. App. 1979). This separation of functions is mandated by the

Tennessee Constitution, which states in Article VI, Section 9 that “[t]he Judges

shall not charge juries with respect to matters of fact, but may state the testimony

and declare the law.”



             Though a judge is permitted to question a witness, even very slight

indications of opinion on the part of the judge can have a powerful impact upon

the minds of the jury. McBride v. Allen, 720 S.W.2d 459 (Tenn. Ct. App. 1979).

Thus, in order to protect the jury’s fact-finding role, judges must be very careful


                                        -6-
about expressing or intimating any opinion on any fact at issue. Graham v.

McReynolds, 18 S.W. 272 (Tenn. 1891). Improper comments from a judge can,

and sometimes do, result in reversal of a judgment. State v. Suttles, 767 S.W.2d

403 (Tenn. 1989); Cleckner v. Dale, 719 S.W.2d 535 (Tenn. Ct. App. 1986). The

comments of the trial judge could be construed as an indication that she had

reservations about Ms. Sousa’s credibility.



             However, not every comment by a judge that can be deemed

improper requires reversal. The standard for this court to follow when dealing

with allegations of error below are found in the Rules of Appellate Procedure.

Rule 36(b) reads

             “A final judgment from which relief is available and
             otherwise appropriate shall not be set aside unless,
             considering the whole record, error involving a
             substantial right more probably than not affected the
             judgment or would result in prejudice to the judicial
             process.”



             Whether an error should be considered harmless or prejudicial

depends in part on how closely balanced the evidence is. If it is very close, then

an improper comment by a judge can more easily affect the judgment by tipping

the scales in favor of one party or the other. See State v. Suttles, 767 S.W.2d

403, 404 (Tenn. 1989).



             We have read the entire trial transcript in this case, and we note that

the comments objected to did not involve central factual questions. More

importantly, we find that the evidence presented of Ms. Sousa’s fault was

overwhelming, while there was no evidence of any fault on the part of Ms.

Kanbi or of any other party, but merely speculation. Under such circumstances,

it is highly unlikely that the comments of the trial judge could have affected the

jury’s verdict. We accordingly affirm that verdict, and the judgment of the trial

court.


                                       -7-
                                      III.



                   The judgment of the trial court is affirmed. Remand this

cause to the Circuit Court of Davidson County for further proceedings consistent

with this opinion. Tax the costs on appeal to the appellant, Patricia J. Sousa.




                                       _______________________________
                                       BEN H. CANTRELL,
                                       PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM B. CAIN, JUDGE




____________________________
PATRICIA J. COTTRELL, JUDGE




                                      -8-
