James E. Strates Shows, Inc. v. Jakobik

• Decision Date: 15 August 1977
• Citation: 554 S.W.2d 613
• Parties: JAMES E. STRATES SHOWS, INC., Petitioner, v. Jack Louis JAKOBIK, Respondent.
• Court: Tennessee Supreme Court

Page 613

554 S.W.2d 613

JAMES E. STRATES SHOWS, INC., Petitioner, v. Jack Louis JAKOBIK, Respondent.

Supreme Court of Tennessee.

Aug. 15, 1977.

Hugh C. Gracey, Jr., Gracey, Maddin, Cowan & Bird, Nashville, for petitioner.

James C. Vance, Nashville, for respondent.

OPINION

FONES, Justice.

Plaintiff sued defendants for personal injuries received in defendants' "fun house" on the Midway at the State Fair. After an adverse jury verdict, plaintiff's motion for a new trial was granted on November 10, 1975. The order expressed the dissatisfaction of the trial judge, as thirteenth juror, with the verdict of the jury.

On November 12, 1975, defendants filed a one sentence motion, ". . . to ask this Court to reconsider its prior ruling . . . in granting plaintiff's motion for a new trial." Apparently, oral argument was heard on November 21, 1975, and the motion to reconsider taken under advisement, but no minute entry of that action was made.

On January 28, 1976, the trial judge granted the motion to reconsider, overruled plaintiff's motion for a new trial and reinstated the jury verdict in favor of defendants.

The Court of Appeals reversed, holding (1) that the comments of the trial judge in the second order, reversing his decision to grant plaintiff a new trial, did not cure the dissatisfaction he had expressed as thirteenth juror in the previous order and (2) that the trial court lost jurisdiction to alter his November 10, 1975, decision to grant a new trial, after the lapse of thirty (30) days.

We agree with the Court of Appeals on the first issue, which requires that the case be remanded for a new trial. The second issue is therefore moot and we pretermit it.

The November 10, 1975, order granting a new trial provided, in part:

". . . After due consideration of the entire record, the Court expressed that it was, as thirteenth juror, dissatisfied with the verdict of the jury and that a new trial should be granted to the plaintiff."

The January 28, 1976, order reversing the prior order and reinstating the jury verdict reads in part:

". . . After careful consideration of the entire record in this cause, the Court is of the opinion that its dissatisfaction with the jury's verdict in favor of the defendants was actually a dissatisfaction with the proof as presented by the plaintiff. The Court is of the opinion that there was evidence to support the verdict of the jury in its finding for the defendants and the Court cannot say that the verdict was unreasonable in light of the evidence presented by both sides in this case. The Court therefore, grants the defendant's motion to reconsider the Court's prior ruling and accordingly, by such action, reinstates the verdict of the jury in favor of the defendant in the above-styled cause."

Where the motion for a new trial asserts that the verdict was contrary to the weight of the evidence it is the duty of the trial judge to weigh the evidence and determine whether it preponderates against the verdict, and if so, to grant a new trial. Vaulx v. Tennessee Central Railroad Company, 120 Tenn. 316, 108 S.W. 1142 (1907).

In performing his duty as thirteenth juror, the trial judge is not bound to give any reasons for his action, anymore than the jury is bound to do so. But, in passing on a motion for a new trial, if it appears from reasons assigned or statements made, that the trial judge was not satisfied with the verdict, it is the duty of the appellate courts to grant a new trial. Telephone and Telegraph Company v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (1903).

In Vaulx the trial judge's remarks in disposing of the motion for a new trial revealed that he sustained the verdict of the jury because there was evidence to support it. In holding that it was improper for the trial judge to sustain the verdict because there was some evidence to support it and thereby fail to weigh the evidence, the Court said:

"(w)here the bill of exceptions shows that the circuit judge has not given the parties the benefit of his reflections at all that is, has not weighed and considered the evidence here is presented a case of breach of duty on the part of that officer for which there must always be granted a new trial." (Emphasis supplied). 120 Tenn. at 322, 108 S.W. at 1144.

In Hamburger v. Illinois Central R. R. Co., 138 Tenn. 123, 196 S.W. 144 (1917), the remarks of the trial judge and the action he had taken on two (2) motions resulted in this Court concluding that it was impossible to say whether or not the jury verdict had his approval. The case was remanded for a new trial.

In Curran v. State, 157 Tenn. 7, 4 S.W.2d 957 (1928), the remarks of the trial judge in overruling defendant's motion for a new trial led this Court to conclude that he had not...