Dorrity v. Mann

• Decision Date: 04 October 1957
• Citation: 43 Tenn.App. 554,310 S.W.2d 191
• Parties: Dr. Thomas G. DORRITY and Mrs. Thomas G. Dorrity, Plaintiffs in Error, v. Estes W. MANN, Defendant in Error.
• Court: Tennessee Court of Appeals

Page 191

310 S.W.2d 191

43 Tenn.App. 554

Dr. Thomas G. DORRITY and Mrs. Thomas G. Dorrity, Plaintiffs in Error, v.Estes W. MANN, Defendant in Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

Oct. 4, 1957 Certiorari Denied by Supreme Court Feb. 6, 1958.

W. Robert Martin, Paul Guenther, of Martin, Guenther & Tucker, Memphis, for plaintiffs in error.

Lowell W. Taylor and W. Frank Crawford, Memphis, for defendant in error.

BEJACH, Judge.

This cause involves an appeal in error by Dr. and Mrs. Thomas G. Dorrity from a verdict of a jury and judgment thereon against them in the amount of $1,386.43.The parties will be styled, as in the lower court, plaintiffs and defendants, Dr. and Mrs. Thomas G. Dorrity having been defendants in the lower court, and defendant in error, Estes G. Mann, having been the plaintiff in the lower court.

Plaintiff sued the defendants for a fee for architectural services rendered pursuant to an oral contract alleged to have been entered into by and between the defendants and the plaintiff, represented by his agent and employee, William C. Mann.The fee claimed by plaintiff, as alleged in his declaration, and for which amount he sued, was $2,805.12, representing 6% of the estimated cost of construction of the proposed residence of defendants for which plaintiff had drawn plans and specifications, said 6% being divided 3.6% for the plans and specifications and 2.4% for services in supervision of the building of said residence, on which amount plaintiff offered to credit the sum of $75 retainer fee paid by defendants, leaving a balance sued for of $2,730.12.Defendants filed pleas of not guilty; and, leave of court having been first obtained, special pleas, in which they claim that they authorized plaintiff through his employee and representative, Bill Mann, to draw plans for them for a home to cost between $25,000 and $30,000, and in which they deny that they ever authorized the drawing of any plans for or supervision of a dwelling to cost $46,752.They say that the first time they saw any completed plans drawn by plaintiff was after he had presented his bill for $2,730.12.Plaintiff filed a replication in which he joined issue on the defendants' pleas.

The case was tried before the court and a jury.At the hearing, the trial judge eliminated plaintiff's claim for 2.4% for supervision services, because the residence for which plans had been drawn had never been constructed, and submitted to the jury the issue of whether or not defendants were liable for the drawing of the plans and specifications, and claimed.The jury's verdict was:

'We, the jury, find in favor for the plaintiff and in the amount of 3.6% of $38,512.00 or sum of $1,386.43.Sam A. Birchfield, Foreman'

On this verdict, the Court entered a judgment in favor of plaintiff and against defendants for $1,386.43.Defendants' motion for a new trial was overruled and defendants prayed, were granted, and have perfected their appeal in the nature of a writ of error to this Court.

In this Court, the defendants, as plaintiffs in error, have filed seven assignments of error, which are as follows:

'I

'There is no evidence to support the verdict of the jury.

'II

'The verdict of the jury is against the weight of the evidence.

'III

'The verdict of the jury is not sustained by the evidence.

'IV

'The verdict of the jury is contrary to the law and the evidence, and is not supported by the law and the evidence.

'V

'The Court erred in overruling defendants'motion for a directed verdict or peremptory instruction in its favor made at the conclusion of the plaintiff's evidence and renewed at the conclusion of all of the evidence in the cause, said motion being upon the following grounds:

'(a) There was no meeting of the minds between the plaintiff and the defendants.

'(b) There was no contract between the plaintiff and the defendants for the set of plans submitted by plaintiff.

'(c)The plaintiff did not perform within the stipulated sum known to him, but completely ignored the express desires of the defendants.

'(d)The plaintiff did not acquaint himself in accordance with the duties imposed upon him because of the recognized fiduciary relationship due to exist between architect and client.

'(e) There was no evidence to show that defendants authorized additions to the architectural plans involved, which would cost more than the $30,000 limit placed upon the desired construction by defendants.

'(f) Generally.

'VI

'The Court erred in refusing to allow the testimony of defendants' witnesses, Mr. Edward L. Westbrooke of Jonesboro, Arkansas, and Mr. Raymond C. Wunderlick, of Memphis, Tennessee, to reach the jury.

'VII

'The Court erred when charging the jury when it failed to instruct said jury on various elements of the law of contracts.'

Assignments of error I and V raise the question of whether there was any evidence to support the jury's verdict.Assignments of error II, III, and IV claim that the jury's verdict was contrary to the weight of the evidence.Assignment of error number VI questions the correctness of the trial judge's ruling which excluded certain testimony, and assignment of error number VII complains of the insufficiency or inadequateness of the judge's charge to the jury.

We will first take up and dispose of assignments of error numbers II, III, and IV.These assignments of error are wholly without merit.This Court is without authority to weigh the evidence or decide where the preponderance lies, and must sustain the verdict of the jury if there was any material evidence to support same.As was said by the Supreme Court in D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 508, 206 S.W.2d 897, 901:

'While these issues involve a review of the evidence, such review is not to determine where the truth lies or to find the facts, that not being our province in jury cases.It is only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.Johnston v. Cincinnati, N. O & T. P. R. Co., 146 Tenn. 135, 149, 240 S.W. 429;Finchem v. Oman, 18 Tenn.App. 40, 49, 50, 72 S.W.2d 564, 570.'

This is a necessary conclusion from the well settled rule that, in determining sufficiency of evidence to sustain the verdict, the evidence must be accepted in light most favorable to the party successful below.Fairbanks-Morse & Co. v. Gambill, 142 Tenn. 633, 222 S.W. 5;Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026;Cincinnati, N. O. & T. P. R. Co. v. Denton, 24 Tenn.App. 81, 140 S.W.2d 796.

We take up next, assignments of error I and V, which assert that there was no evidence to sustain the jury's verdict in this cause and that the trial judge should have granted a directed verdict in favor of the defendants.Disposition of these assignments of error requires an examination of the evidence, but only for the purpose of ascertaining whether or not there is any material evidence which warranted a submission of the case to the jury.The application of this rule was ably expressed by Felts, J., in the case of Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 397-398, 206 S.W.2d 806, 810, as follows:

'(1) In view of much of the argument in the briefs, it seems well to recall the rule, so often stated, in numerous cases by which both trial courts and appellate courts must be governed in determining a motion for a directed verdict.That rule is based on the constitutional right of trial by jury; and it has been fashioned so as to preserve that right and at the same time to administer the common law of separation of function by which the jury try the facts and the judge the law.'There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusions to be drawn from the whole evidence, upon the issues to be tried.'Tyrus v.[Kansas City, Ft. S. & M. R. Co.], 114 Tenn. 579, 594, 86 S.W. 1074, 1077;Brenizer v. Nashville C. & St. L. Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099;Osborn et al. v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510.

'(2) As said so often, this rule requires trial judges and appellate judges, in considering a motion by defendant for a directed verdict, to look to all the evidence, to take as true the evidence for plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied.Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 556, 557, 249 S.W. 984;Walton [Sec. Co.] v. Burchel, 121 Tenn. 715, 723, 121 S.W. 391, 130 Am.St.Rep. 788;Lefe & Acc. Ins. Co. v. Prieto, 169 Tenn. 124, 83 S.W.2d 251;Osborn v. City of Nashville, supra[182 Tenn. 197, 185 S.W.2d 510];Tennessee Cent. Ry. Co. v. McCowan, 28 Tenn.App. 225, 188 S.W.2d 931;Poole v. First Nat. Bank of Smyrna , 196 S.W.2d 563, 567, 568.'

In the instant case, defendants admitted that they authorized plaintiff, through his employee and representative, William C. (Bill)...