Frierson v. Smithson

• Decision Date: 04 September 1937
• Parties: FRIERSON v. SMITHSON.
• Court: Tennessee Court of Appeals

113 S.W.2d 778

21 Tenn.App. 591

FRIERSON v. SMITHSON.

Court of Appeals of Tennessee, Middle Section.

September 4, 1937

Certiorari Denied by Supreme Court February 12, 1938.

Appeal in Error from Second Circuit Court, Davidson County; A. B Neil, Judge.

Action by Mrs. Robbie Smithson against Mrs. John S. Frierson and another for the alleged wrongful and unlawful death of the plaintiff's husband, allegedly caused by the combined or concurrent negligence of the two defendants. To review a judgment for the plaintiff against the named defendant, the latter appeals in error.

Affirmed.

Goodpasture & Carpenter, of Nashville, for plaintiff in error.

Walker & Hooker, of Nashville, for defendant in error.

FAW Presiding Judge.

Mrs John S. Frierson, defendant below, has brought this case to this court by an appeal in the nature of a writ of error from a judgment of the Second circuit court of Davidson county for $6,000 and costs, against her and in favor of Mrs. Robbie Smithson, plaintiff below.

The aforesaid judgment was rendered upon the verdict of a jury in an action by Mrs. Robbie Smithson, as surviving widow of J. W. Smithson, against Mrs. John S. Frierson and R. L. Marable, for the alleged wrongful and unlawful death of plaintiff's said husband, which, the plaintiff averred, was proximately caused by the combined or concurrent negligence of the two defendants.

At the close of plaintiff's evidence in chief, the trial judge directed the jury to return a verdict in favor of the defendant R. L. Marable, which was done, and judgment was entered dismissing the action against Marable and adjudging the costs incident to making him a defendant against the plaintiff Mrs. Smithson.

A motion for a directed verdict on behalf of Mrs. Frierson, made at the close of plaintiff's evidence and renewed at the close of all the evidence, was overruled, and the case was submitted to the jury and the jury found the issues in favor of the plaintiff and assessed her damages at $6,000, whereupon judgment was entered on the verdict as before stated.

For convenience, we will refer to Mrs. Smithson as plaintiff and to Mrs. Frierson as defendant; such being the respective positions of the parties on the record below.

Plaintiff moved for a new trial on the ground of alleged inadequacy of the verdict, which motion was overruled, and plaintiff prayed and was granted an appeal in error, but she did not perfect her appeal, and is not now complaining of the verdict or judgment.

Defendant Mrs. Frierson also moved for a new trial, but her motion was overruled, and she thereupon prayed, obtained, and perfected an appeal in the nature of a writ of error to this court, and has assigned errors here.

At the threshold of the investigation of this case, it is necessary for us to consider a motion (or two motions) on behalf of the plaintiff, Mrs. Smithson (defendant in error here), as follows:

"I. Comes the defendant-in-error, Mrs. Robbie Smithson, and moved the Court to strike from the transcript or record in this case what purports to be a motion for a new trial filed on behalf of the defendant below and the plaintiff-in-error in this Court, Mrs. John S. Frierson, appearing on pages 216 and 217 inclusive of the record, for the reason that the same is not sufficiently identified therein; and in support of said motion defendant-in-error files herewith a certified copy of that part of the original bill of exceptions calling for the inclusion in the transcript of said motion for a new trial.

"II. Said defendant-in-error moves the Court to affirm the judgment of the Circuit Court in this case, for the reason that no error is apparent on the face of the technical record, and no error will be considered in this Court, under its rules, unless it affirmatively appears 'that the same was specifically stated in the motion made for a new trial in the lower court, and decided adversely to the plaintiff-in-error, but will be treated as waived'; and since there is no motion for a new trial to which the Court may look or consider, the judgment of said Circuit Court must be affirmed. Rule 11, Sec. (5), Vol. XI Tenn.App. Reports, p. III."

The defendant's motion for a new trial was not copied on the minutes of the trial court. An entry appears on the minutes of that court (at page 18 of the transcript), under date of December 12, 1936, as follows: "This cause came on to be heard upon a written motion of the defendant, Mrs. John S. Frierson, for a new trial in this case, which motion has heretofore been marked filed by the Clerk on December 2, 1936, and by the Court ordered made a part of the record in this case; and

"Upon argument of counsel and due consideration thereof, the Court takes said motion under advisement until a future day of this term of Court."

Another (and the only other) minute entry below, with reference to defendant's motion for a new trial, appears under date of December 18, 1936 (on page 20 of the transcript), as follows:

"This cause came on this day as well as upon a former day of this term of Court upon a written motion of the defendant, Mrs. John S. Frierson, for a new trial in this case, which motion has heretofore been marked filed by the Clerk on December 2, 1936, and by the Court ordered made a part of the record in this case; and

"Upon due consideration thereof, the Court overrules said motion.

"To the action of the Court in overruling said motion, the defendant, Mrs. John S. Frierson, excepts and prays an appeal in the nature of a writ of error to the Court of Appeals sitting at Nashville, Tennessee, which appeal is by the Court granted upon the defendant, Mrs. John S. Frierson, executing an appeal bond conditioned as required by law, or taking the oath prescribed by law for poor persons.

"The defendant, Mrs. John S. Frierson, is allowed thirty days from this date within which to execute and have filed her appeal bond conditioned as required by law, or take the oath prescribed by law for poor persons, prepare and have filed her bill of exceptions, and to otherwise perfect her appeal in this case."

The transcript of the bill of exceptions originally filed in this court contained (on pages 216 and 217 thereof) a motion for a new trial on behalf of defendant Mrs. Frierson, in which motion was set forth eight alleged grounds (separately numbered) upon which a new trial was sought.

In support of her aforesaid motion "to strike from the transcript or record what purports to be a motion for a new trial filed on behalf of the defendant below," etc., the plaintiff has filed a supplemental transcript with a certificate of the clerk of the circuit court of Davidson county thereto, as follows:

"Motion for a new trial.

"The defendant Mrs. John S. Frierson, through her counsel, comes and moves the Court for a new trial, upon the following grounds:

"(Here copy motion in full)."

"State of Tennessee--Davidson County.

"I, Hugh Freeman, Clerk of the Circuit Court of Davidson County, Tennessee, do hereby certify that the foregoing is a true and correct copy of all and every part of the original bill of exceptions in the case of Mrs. Robbie Smithson, Plaintiff, vs. Mrs. John S. Frierson et al., Defendants, as the same appears of record in said Court, in my office, which calls for or directs the incorporation or inclusion in the bill of exceptions or the transcript in said case of, or that relates to, the motion for a new trial of Mrs. John S. Frierson in said case.

"And I further certify that said motion for a new trial in said case, made by said defendant Mrs. John S. Frierson, a copy of which appears on pages 216 and 217 inclusive of the transcript in this case, does not contain on any part thereof the signature of the Trial Judge, or any identification by the Trial Judge, and that said motion for a new trial was not entered on the minutes, the only references to said motion for a new trial of said defendant, Mrs. John S. Frierson, appearing on pages 18 to 20 inclusive of the transcript.

"In testimony whereof, I hereunto subscribe my name and affix the seal of said Court, at office, in Nashville, Tennessee, on the 14th. day of June, in the year One Thousand Nine Hundred and Thirty-seven, and in the One Hundred and Sixty-first Year of American Independence.

"Hugh Freeman, Clerk."

It thus appears that, although defendant Mrs. Frierson filed a written motion for a new trial below, such motion was not copied on the minutes of that court, and was not...