Tennessee, C. & R. R. Co. v. Roddy

• Citation: 5 S.W. 286
• Court: Supreme Court of Tennessee
• Decision Date: 01 January 1887
• Parties: TENNESSEE, C. & R. R. CO. <I>v.</I> RODDY, Adm'r, etc.

5 S.W. 286

TENNESSEE, C. & R. R. CO.v.

RODDY, Adm'r, etc.

Supreme Court of Tennessee.

1887.

Appeal from circuit court, Franklin county; Hon. J. J. WILLIAMS, Judge.

Colyar, Marks & Childress, for the railroad. J. H. Holman and Gregory & Embrey, for Roddy.

LURTON, J.

The intestate of the defendant in error, James K. Legg, was a locomotive engineer in the service of the plaintiff in error, and while thus in their service was killed by and through the negligence of his employer. Suit was instituted by his administrator to recover damages. There have been three trials of the cause. There was a verdict for $6,400 as a result of the first trial. The record shows that the circuit judge, deeming the verdict excessive, ruled, upon the motion for a new trial, that a new trial should be granted unless the plaintiff below would remit $3,400 of his verdict. This the plaintiff declined to do, and a new trial was granted. The second trial resulted in a hung jury. The third and last trial, and the one now under consideration, resulted in a verdict for $8,000. From the judgment on this verdict the plaintiff in error has appealed. The commission of referees, having heard the case, recommend a reversal, in an able and carefully prepared report, wherein they place their recommendation expressly upon the ground that the judgment entry, overruling the motion for a new trial, shows that the circuit judge was of opinion that the verdict was excessive under the facts of the case, yet had refused to grant a new trial. The entry refusing a new trial was as follows: "The motion for a new trial having been heard, the court declines to set aside the verdict, but does not approve the same. The court, at a former term, set aside a verdict for a smaller amount, because it was excessive for the facts of the case, and the court now is of opinion that, if any recovery at all was proper, the verdict is excessive; but, to terminate the litigation in this case, the verdict is sustained, that the supreme court may pass on these facts, this court having tried the case for the third time."

Taking into consideration all the parts of this entry, and particularly the recital that he had once before granted a new trial, not because it was against the weight of the proof or contrary to law, but expressly upon the ground that he thought the verdict excessive, we are of opinion that the disapproval of the verdict expressed by the judge is based, not upon any dissatisfaction with a verdict for the plaintiff below, but a disapproval of the amount of the damages. He thought it excessive upon the facts, but evidently did not think it so excessive as to indicate passion or prejudice, and make it his duty to set it aside. On the contrary, he expressed a desire that the parties should submit the case, upon the verdict, to the supreme court. If he was not satisfied that under the facts and law, the plaintiff should have a verdict, it was his plain duty to set it aside, and grant a new trial. The doctrine is well settled in this state that if the circuit judge is of opinion that a verdict is against the weight of the evidence, or is contrary to the law as charged by himself, he should grant a new trial. The rule of this court, that it will not disturb the verdict of a jury upon facts fairly submitted to them upon a correct charge, unless there is a great preponderance of evidence against the verdict, is based very largely upon the fact that a different rule governs the circuit judge in considering motions for new trials. The court attaches great weight to the fact that the circuit judge, having seen and heard the witnesses testify, and having submitted the case to a jury known to himself, has stamped the verdict with his approval by refusing to grant a new trial. Much of the importance and weight attached to jury trials proceeds from the presumption that an intelligent and learned circuit judge, accustomed to weighing evidence, has scrutinized the proof, looked into the faces of the witnesses, and indorsed the action of the jury. The integrity and value of jury trial will largely disappear, if circuit judges shall endeavor to avoid the duty imposed upon them by law in this regard. If he is dissatisfied with the verdict, he ought to set it aside; and this court has held that, where this dissatisfaction appears in the record, this court will do what he ought to have done, — grant a new trial. England v. Burt, 4 Humph. 399; Jones v. Jennings, 10 Humph. 428; Nailing v. Nailing, 2 Sneed, 631; Vaulx v. Herman, 8 Lea, 687.

It is insisted that this rule applies to this case. This would be so if the dissatisfaction of the circuit judge clearly appeared to be due to any finding for the plaintiff below. But we have construed and do construe the entry refusing a new trial in this case, not as indicating the disapproval of any verdict for the plaintiff. We construe the entry as simply indicating the belief of the circuit judge that the damages were excessive, yet not so excessive as to require him to set aside the verdict. It is insisted, however, that the disapproval of the amount of the verdict is in itself enough to have made it the duty of the circuit judge to have granted a new trial, and that, under the doctrine of the cases of England v. Burt, 4 Humph. 399, and Vaulx v. Herman, 8 Lea, 687, the dissatisfaction of the trial judge with the verdict appearing, this court ought to grant a new trial. This brings us to a consideration of the question as to whether the fact that the trial judge deems the damages assessed by a jury in a civil action for a personal tort to be excessive, is ground for a new trial. In actions ex contractu, even if sounding in damages, the proof affords some definite and fixed rule and standard by which the judgment of the jury may be tested. An excessive verdict, in all such cases, is ground for new trial. So, as before stated, in any class of cases, if the verdict is contrary to the law, or to the weight of the evidence, it is ground for new trial in nisi prius trials. But, in action for personal torts, sounding in damages, we understand the rule concerning new trials for mere excessive damages to be very different. At one time it was doubted whether, in cases of mere personal torts, the court had the power to interfere on the ground of excessive damages, or the contrary. "But the practice has long been settled conceding to the court the right to control verdicts in relation to damages, as well as every other incident in all cases without...