1 Plaintiff-appell ee has not appea

led as to this defe

ndant.

2 The parti es st ipulated that The 822 corporation owns the Metro News Adult book Store where Ronnie Telford was an employee.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE HAYES WASHINGTON v. THE 822 CORPORATION, ET AL 

### . A Direct Appeal from the Circuit Court for Davidson County No. 95C-4371 The Honorable Carol Solomon, Judge

No. M1999-01318-COA-R3-CV - Decided June 29, 2000

Patron of adult book store and theater sued the theater corporation and one empl oyee for injuries sustained in an assault by defendant employee and other employees. The jury returned a verdict for the defendant employee but against the corporation and assessed damages accordingly. The corporation appeals, asserting that the verdict is inconsistent and a new trial should be granted. We affirm, because the complaint alleges and the proof indica tes that empl oyees other than the defendant employ

ee engaged in the

assault.
Tenn. R. App . P. 3, Appeal as of Rig ht; Judgment of the

Circuit Court Af

firmed and Remanded.
C RAWFORD , P.J., W.S., delivered the opinion of the court, in wh ich H IGHERS , J ., and F ARMER , J., joined. John E. Herbison, Nashville, For Appellant Michael H. Sneed, Nashville, For Appellee
OPINION
This appeal involv

e s a suit for person

al injuries result

ing from an allege

d assault. Defen

dantappellant,The 822 Corporation (hereinafter Corporation), appeals the judgment on the jury verdict awarding plaintiff-appellee, Hayes Washington (hereinafter Washington), $7,500.00 damages. The jury also returned a verdict for defendant, Ronnie Telford. 1
On December

23, 1 994, Washington visited the Metro News Adult Store. 2 The facts regarding the incident aresharply dis puted. However, it is clear from the record that a physical struggle ensued between Washington, T elford , and other corpo rate employees w

hich resulted in3 Washington's brief presents this theory as issues but because of our d

ecision we prete

rmit a detailed examination thereof.
-2- injuries to Washington’s person.
On December 21, 19

95, plaintiff file

d suit against Co

rporati on and Ronnie Telford. Plaintiff’s amended complain t alleges that while

pl aintiff was visiting Corporation’s place of business, he was assaulted by defe ndant Telford an

d other employees

of the corporati

on, all acting within the course and scope

of their employment. The complaint also alleges that Telford, acting within the course and scope of his employment, was guilty of malicious prosecution for swearing outa criminal warrant against him. The jury returned a verdict for plaintiff against Corporation for $7,500.00 damages, and

also returned a

verdict in favor of defendant Telford. Corporation’s motion fo r a new trial was de

nied, and Corpora

tion has appealed

. Corporation pre

sents two issues f

o r review, as stated in its brief:

1. Whether the inconsistency of the jury verdicts, including findings of no liability on the part of the employee who was alleged to hav e assaultedthe Plaintiff and o f liability on the part of the employer for such assault, requires that a new trial be granted.
2. Whether the tr

ial court in its cap

acityas thirteenth juror f

ailed to properly weigh the evidence witho ut def erence being shown to the result reached by the jury. Where, as here, a trialjudge has approved a jury’s verdict, our standard of review is whether there is any material evidenc e to support th e verdict. Tenn.

R. App. P. 13 (d). Thu s, absent a reversible error of law, we will set aside a judgment on a jury verdict only where the record contains no material evidence to support the verdict. Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988).
In its first issue, the corporation asserts that Washington’s claim was based on the doctrine of respondeat superior

and that neither the complaint or amended complaint included a claim for negligent hiri ng or supervision of its employees. Corporation further submits that the proof presented at trial does not

present a basis for any claim other than respondeat superior and argues that the jury verdict should be overturned based on the inconsistent result. Washington argues that the issues of

negligent training and negligent supervision of the employees were tried by express or implied consent of

the parties and th

erefore should b

e treated as if r

aised in the plead

ings. 3
The problem with Washington’s argument is that the trial court did not instruct the jury on negligent training or negligent supervision. The trial court should instruct the jury upon every issue of fact and theory of the case raised by the pleadings and supported by the proof. Street v. Calvert , 541 S.W.2d 576 (Tenn. 1 976). The recor d reveals that Washington did

not submit a specia

l request for instruction regarding the Corporation’s negligent training or supervision of its employees. The trial court cannot be held in error for an incomplete char

ge in the absence

of such a specia

l request.-3-

LouisvilleN.R. Co. v. Wynn , 88 Tenn. 320, 14 S.W. 311 (189 0); Bowers v. Thompson , 688 S.W.2d 827 (Tenn. Ct. App. 1984).
Since Washington did not request and the jury was not charged with negligent supervision or hiring we must assume that the verdict was based on respondeat superi or. Under the doctrineof respondeat

superior , an employer is he ld vicariously lia

ble for torts committed by its employees within the course

and scope of their employment. Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Ins. Co. , 840 S.W.2d 933, 937 (Tenn. Ct. App. 1992). It is well settled under Tennessee law that when the maste

r or employer’s li

ability is basedon the doctrine of respondeat superi or, the master or employer c a nnot be held liable if the employee is not liable. Loveman v. Bayles s , 128 Tenn. 307, 315, 160 S.W.2d 841 (1959). Corporation asserts that the ju ry rendered inc

onsistent verdicts

by holding Corporat

ion liable butdeclining to hold Telford liable. If, in fact, there are inconsistent verd

icts, neither the v

erdict in favor of the employee nor

the verdict against the employer can stand. See McCall v. Owens , 820 S.W.2d 748 (Tenn. Ct. App. 1991) (citing Slaton v. Earl Campbell Clinic Hosp. , 565 S.W.2d 483 (Tenn. 1978). However, in this case the complaint specifically alleges that plaintiff was injured as a result of the assault by Telford and other employees of Corporation acting in the course and scope of their employment. The record indicates that other employees were involved in the altercation and, in fact, actually struck

the plaintiff. The jury was charged on the liability of the master under the doctrine of respondeat superior and heard the t estimony co ncerning the acts of Corporation’s emp loyees. Under these circumstances, the verdict against Corporation could be based upon th e assault by the othe

r employees and n

ot Telford. Corpor

ation’s first issue

is without merit. Corporation’s second issue asserts that the trial court didnot perform its duty

as the thirteenth juror. As we previously noted, the standard of review is limited to a determination of whether there is an y material evidence to support a jury verdict. This standard is not applicable unless the tria l judge properly fulfills his duty as “a thirteenth juror.” In Shivers v. Ramsey , 937 S.W.2d 945 (Tenn. Ct. App. 1996), this Court said:

In this state the trial judge is the thirteenth j uror and no verdi ct is valid until approved by the trial judge. Mize v. Skeen , 63 Tenn. App. 37, 468 S.W.2d 733 (1971). In this capacity the trial judge is under a du ty to independently weigh the evidence and determine whe the r the evidence prepo

nderates in favo

r of or against the

verdict. McLau gh lin v. Broyles , 36 Tenn. App. 391, 255 S.W.2d 1020 (1952); Tiffany v. Shipley , 25 Tenn. App. 539, 161 S.W.2d 373 (1941).
If i n discharging his duty as thirteenth juror, the trial jdug e makes comm ents that indicate that he has misconceived his duty or clearly has not followed it, this court must reverse and re mand the case for a new trial [the

material evidence rule notwithstanding]. See Nashville, C. & St. L.R. R. v. Neel y , 10 2 Tenn. 700, 52 S.W. 167,-4- 168 (Tenn. 1899); Holden v. Rannick , 682 S.W.2d 903 (Tenn. 1984).
937 S.W.2d at 947. Corporation asserts on appeal that the trial court’s language in the order denying the motion for a new trial indicates that the court misconstrued its dutyand approved the verdict for some reason other than its own satisfa

ction with the verd

ict based upon an i

n depend ent evaluation of the evidence. The language re ferred to is “It appears to

the Court now that th

e jury verdict in th

is cause is supported by sufficient evidence and therefore should not be disturbed.” Corporation argues that this language indica

tes t hat the tri al judge was defe rring to the jury ve

rdict without exer

cising its independent

evaluation of the weight of the evidence. We do not read such an interpretation into the language of the order. The trial judge appears to have merely stated that there was evidence upon which the jury could have r esolved the case

as it did, and this

language does not indicate that the trial judge did not perform her duty as the “thirteenth juror.” Accordingly, the judgment of the trial court is affirmed. This case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed against the appellant, The 822 Corporation.