Barnes v. Noel

• Decision Date: 27 February 1915
• Parties: BARNES v. NOEL.
• Court: Tennessee Supreme Court

174 S.W. 276

131 Tenn. 126

BARNES v. NOEL.

Supreme Court of Tennessee.

February 27, 1915

Appeal from Circuit Court, Davidson County; G. N. Tillman, Judge.

Action by James A. Barnes, by his next friend, against Oscar F Noel. From a judgment of the Court of Civil Appeals affirming judgment for defendant, plaintiff appeals. Affirmed.

J. B Daniel and Paul W. Hoggins, both of Nashville, for appellant.

Bradley Walker and A. W. Akers, both of Nashville, for appellee.

GREEN J.

This suit was brought by James A. Barnes, a minor, through his next friend, to recover damages from the defendant Noel for injuries sustained by plaintiff below on Noel's premises. At the time of the injury, young Barnes was a small boy and was hurt by a mowing machine operated by an employé of Noel on the latter's place.

Upon the first trial of the case in the first circuit court of Davidson county, defendant below made a motion for peremptory instructions, which was overruled, and, on the case being submitted to the jury, they returned a verdict in favor of plaintiff. A motion for a new trial was made in behalf of Noel, and the failure of the circuit judge to grant peremptory instructions was set out in said motion, along with other grounds, and upon certain of these other grounds a new trial was awarded. The defendant Noel took a wayside bill of exceptions.

Later the case came on for hearing in the third circuit court of Davidson county, when the plaintiff below attempted to take a nonsuit. Plaintiff's motion for a nonsuit was resisted by the defendant and the motion was overruled by the trial judge. The case was again tried, submitted to the jury, and a verdict in favor of defendant was returned on this trial. Plaintiff below made a motion for a new trial which was overruled, and plaintiff appealed in error to the Court of Civil Appeals, where the judgment below was affirmed.

The first question that arises is on the action of the circuit judge in refusing to allow plaintiff below to have a nonsuit when the case was called for trial in the third circuit court. The nonsuit was opposed by the defendant below on the theory that he was entitled to have the benefit of the first trial--having preserved a wayside bill of exceptions--and was entitled to have the refusal of the court to direct a verdict in his favor on the earlier trial reviewed and passed upon by the appellate courts. This presents a question of first impression in Tennessee.

The rule in Tennessee is that the action of the trial judge in directing a verdict must be challenged in the lower court on a motion for a new trial before such action can be reviewed here. Seymour v. Railroad, 117 Tenn. 98, 98 S.W 174.

Errors occurring on the trial of a case which can be made to appear by bill of exceptions only must be presented to the consideration of the court below on motion for new trial before any relief on account of such matters can be had in this court. Railroad v. Johnson, 114 Tenn. 632, 88 S.W. 169.

The propriety of a peremptory instruction given or the refusal of such an instruction can only be determined by an examination of the evidence preserved in a bill of exceptions.

If on motion for a new trial the circuit judge concludes he erred in directing a verdict, it is his duty to set that verdict aside and award another hearing of the case. If on motion for a new trial he concludes he erred in not directing a verdict, under our practice, it would be his duty to enter an order correcting the verdict rendered to conform to the undisputed evidence.

The office of a motion for a new trial is not alone to secure another hearing, but to present the errors complained of for correction, if possible, without another hearing. 14 Enc. Pl. & Pr. 846; 2 Elliott on General Pr. § 987, cited and approved in Railroad v. Johnson, 114 Tenn. 632, 88 S.W. 169.

So it is permissible in the motion for a new trial for the losing party to question the action of the court in refusing him peremptory instructions. This is an error that can be remedied by correcting the verdict as before pointed out. At the same time the attention of the court may be called to other errors, such as errors in the charge or in the admission or exclusion of evidence, which errors cannot ordinarily be corrected, but which entitle the party to another hearing.

A motion for peremptory instructions is not a waiver of other objections (King v. Cox, 126 Tenn. 553, 151 S.W. 58), nor should reliance on other matters in the motion for a new trial be held a waiver of the motion for peremptory instructions. The settled policy in this state is to give the unsuccessful party below the right to have a review on appeal of every question properly made and preserved by him.

Chapter 106 of the Acts of 1875, carried into Shannon's Code at sections 4851 and 4852, provides:

"Where a motion for a new trial shall be granted or refused, either party may except to the decision of the court and may reduce to writing the reasons * * * for said new trial, together with the substance of the evidence in the case, and also the decision of the court on said motion; and it shall be the duty of the judge, before whom such motion is made, to allow and sign the same; and such bill of exceptions shall be a part of the record in the case," and "it shall be lawful for the appellant in such case to assign for error that the judge in the court below improperly granted or refused a new trial therein, and the Supreme Court shall have power to grant new trials, or to correct any errors of the circuit court in granting or refusing same."

The foregoing statute as to wayside bills of exceptions has been construed many times by this court. See Jenkins v. Hankins, 98 Tenn. 545, 41 S.W. 1028, and cases there cited.

It will be observed that on a wayside bill of exceptions this court is empowered "to grant new trials or correct any errors of the circuit court in granting or refusing same."

If the circuit judge orders a new hearing when the party moving for a new trial should have had a directed verdict, and is so insisting on the motion for a new trial, such action is one of those "errors of the circuit court in granting" a new trial which the statute authorizes this court to correct. Such error will be corrected, under such circumstances, when the matter is properly brought before this court.

Returning now to the case before us, when it was called for the second trial in the third circuit court, the defendant below had properly preserved his right to a...