Jacks v. Williams-Robinson Lumber Co.

• Decision Date: 22 November 1911
• Citation: 140 S.W. 1066,125 Tenn. 123
• Parties: JACKS v. WILLIAMS-ROBINSON LUMBER CO.
• Court: Tennessee Supreme Court

140 S.W. 1066

125 Tenn. 123

JACKS v. WILLIAMS-ROBINSON LUMBER CO.

Supreme Court of Tennessee.

November 22, 1911

Error to Circuit Court, Morgan County; G. Mc. Henderson, Judge.

"To be officially reported."

Action by R. J. Jacks against the Williams-Robinson Lumber Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Wright & Jones, for plaintiff in error.

Pickle Turner & Kennerly, L. Riseden, W. Z. Stricklin, and Mrs. J L. Hughett, for defendant in error.

LANSDEN J.

This action for damages for personal injuries was tried before the circuit judge and a jury in Morgan county, and resulted in a verdict in favor of the plaintiff. The defendant below made a motion for a new trial upon the following grounds:

(1) Because the facts in the case do not warrant the verdict.

(2) Because the finding of the jury is not justified by the verdict.

(3) Because the weight of the evidence in the case preponderates greatly in favor of defendants, and the plaintiff is not entitled to recover of defendants in any sum whatsoever.

This motion was overruled by the circuit judge, and judgment was pronounced upon the verdict. The case was appealed to the Court of Civil Appeals, and substantially the same errors assigned there as those set out above. Upon application to that court, plaintiff in error was permitted to assign the additional error that there is no evidence to support the verdict.

The trial court has a rule that: "All motions for new trials must be reduced to writing and entered upon the minutes. The several grounds of error upon which new trials are asked whether of law or fact, must be stated separately and specifically and numbered, and no errors will be considered except such as are assigned in said written motion in this manner."

Defendant in error relied upon this rule in the Court of Civil Appeals and objected to that court permitting the amended assignment of error. That court, in disposing of this objection, said:

"After due consideration, we have reached the conclusion that rules of lower courts requiring motions for new trials to be specific cannot be held to preclude the making of assignments that are peculiar to this court. In the matter of granting new trials this court proceeds from an entirely different standpoint from that controlling a trial judge. It is his duty, if he be of the opinion that the evidence preponderates materially against the verdict, and does not for that reason meet his approval, to grant a new trial. This court will not reverse the lower court in refusing to grant a new trial with respect to the evidence, unless the record shows that there is no material testimony to support the verdict. The assignment of error made will be considered by us."

This was error. No assignment of error in the appellate court can be said to be peculiar to that court, in contradistinction to assignments in the lower court of grounds for a new trial. While it is true that it is the duty of the trial judge to award a new trial upon the evidence, if he is of the opinion that the evidence preponderates against the verdict, and that this court and the Court of Civil Appeals will not consider the weight of the testimony after the verdict of the jury has been approved by the trial judge, nevertheless the trial judge should be called upon to pass upon the question as to whether there is any evidence to support the verdict. The jurisdiction of the Supreme Court and the Court of Civil Appeals is appellate only. The sole duty of these two courts is to revise the action of the trial court. The trial courts cannot be put in error upon appeal upon questions of law or fact which have not been called to their attention. Especially is this true where the trial court has a rule requiring parties complaining of the verdict of juries to specifically assign errors relied upon. Railroad v. Johnson, 114 Tenn. 641, 88 S.W. 169; Railroad v. Blair, 104 Tenn. 212, 55 S.W. 154; Wise & Co. v. Morgan, 101 Tenn. 273, 48 S.W. 971, 44 L. R. A. 548.

It is competent for trial judges to promulgate such rules, and this court will enforce them....