Jenkins v. Hankins

• Decision Date: 08 August 1897
• Citation: 41 S.W. 1028,98 Tenn. 545
• Parties: JENKINS v. HANKINS.
• Court: Tennessee Supreme Court

41 S.W. 1028

98 Tenn. 545

JENKINS v. HANKINS.

Supreme Court of Tennessee.

August 8, 1897

Error to circuit court, Wilson county; W. C. Houston, Judge.

Action by W. G. Hankins, administrator of the estate of his deceased son, against W. W. Jenkins. There was a judgment in favor of plaintiff, and defendant appeals in error. Reversed and rendered.

W. M Hammock, W. S. Faulkner, John C. Sanders, and Jas. J. Turner for plaintiff in error.

John S McMurray, R. Cantrell, R. McMillan, and Robt. Smith, for defendant in error.

SNODGRASS C.J.

The son of the defendant in error was killed by Jenkins in a personal difficulty, and this suit was brought against Jenkins for damages. It has been several times tried, resulting in various judgments for and against the plaintiff. At the September term, 1895, the case was tried, and a verdict was rendered in favor of plaintiff, and awarding one cent damages. This verdict was, on motion of plaintiff, set aside by the circuit judge, because, as averred in the motion and recited by him, it was "against the evidence." To this action of the court the defendant excepted, making a bill of exceptions thereto, which was signed by the court and became a part of the record. The case was again tried, at the January term, 1896. On this trial a verdict was rendered in favor of the defendant, and, on plaintiff's motion, this was again set aside, on the ground that the verdict was not sustained by the evidence. A last trial was had at the May term, 1896. Jury rendered verdict in favor of plaintiff, and assessed his damages at $500. Motion for new trial was made and overruled, and the defendant appealed in error.

The first question involved is as to the action of the circuit judge in setting aside the verdict rendered at the September term, in favor of the plaintiff, but assessing his damages at one cent. Chapter 106 of the Acts of 1875 is "An act to provide for bills of exceptions, and to regulate the practice where new trials are granted or refused," and provides: "That 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 correct any errors of the circuit court in granting or refusing same." Acts 1875, p. 189. Under this act the right of either party to preserve any just and proper advantage obtained by a verdict in his favor, which has been erroneously set aside by the circuit judge, is secured; and while he cannot appeal at the time such action is taken, where the case is continued in court for future trial below ( State v. Perry, 4 Baxt. 438; King v. Miller, 8 Baxt. 382; Railroad Co. v. Conley, 10 Lea, 531; Morgan v. Bank, 13 Lea, 234), he may bring this question upon on final appeal from any subsequent judgment rendered against him (Id.). In such case, the correctness or incorrectness of the action of the trial judge in setting the verdict aside is the first question for determination by this court. Railroad Co. v. Higgins, 85 Tenn. 620, 4 S.W. 47.

The trials had in the court below, where more than one was had and bills of exceptions preserved, are considered here in the order of their occurrence. Railroad Co. v. Scott, 87 Tenn. 494, 11 S.W. 317. We therefore proceed to the determination of the question as to correctness of the action of the circuit judge in setting aside the verdict of the jury, which was done, manifestly, because the circuit judge thought the amount given was too small. There can be no doubt that the circuit judge has the same power to set aside the verdict of the jury when the verdict is so inadequate as to indicate passion, prejudice, corruption, or unaccountable caprice as he has to set aside similar verdicts so excessive as to indicate the same condition of mind on the part of the jury. McCampbell v. Thornburgh, 3 Head, 109; Railroad Co. v. Roddy, 85 Tenn. 400, 5 S.W. 286. It is not within the exercise of the legitimate power of the circuit judge to set aside verdicts as trifling or excessive, unless they appear to be the result of passion, prejudice, corruption, or capricious action on the part of the jury. It will be observed that this particular verdict was set aside by the circuit judge because, in his opinion, it was "against the evidence"; and it is insisted that in such case he has exhibited dissatisfaction with the verdict, and his dissatisfaction cannot be questioned if there were evidence pro and con considered by the jury, and by him in his action setting it aside. But this dissatisfaction must be as to the finding upon an issue. If there was evidence pro and con, and an issue which was found in favor of one of the parties, and set aside at the instance of the other, the rule is applicable, but it has no application to the question of the amount. Railroad Co. v. Roddy, 85 Tenn. 400, 5 S.W. 286; Turner v. Turner, 85 Tenn. 387, 3 S.W. 121. It must be remembered that in this case the issues were found in favor of the plaintiff, and the verdict was set aside, not on the motion of the defendant, but on the motion of the plaintiff himself, who thought the amount was too small. The declaration, therefore, that it is ""against the evidence," although in general terms, can have no other meaning than that the verdict was not sufficiently large, in the opinion of the court. The Turner Case, last referred to, though cited by counsel of defendant in error to the contrary, expressly decides that it was not the duty of the circuit judge to set aside such a verdict if he was dissatisfied with it. In that case there had been a judgment against the defendant, and the court had expressed dissatisfaction with it, which was an expression of dissatisfaction as to the finding upon the issues. This court reversed it expressly for this reason, but, repeating the rule which had been announced in the Roddy Case, and referring to that case, said: "We have held at this term that where, in an action for damages for tort, the circuit judge has expressed dissatisfaction as to the amount of the verdict, which he, nevertheless, let stand, we do not reverse, because, notwithstanding such dissatisfaction, it was his duty to let such verdict stand, unless it was so excessive as to indicate passion, prejudice, corruption, or other improper influences operating to produce it, of which we could judge from the record as well as he. But the rule now asserted was emphasized in that case, and where the dissatisfaction is not with the amount, but the fact, of the verdict, it will not be allowed to stand." This distinction is perfectly obvious. It is clear in this case that it was not dissatisfaction with the fact of the verdict, because the plaintiff who moved to set it aside had obtained it, and had obtained all he wished, except the amount he wished; and therefore it is clear that his dissatisfaction, and that of the judge who allowed his motion, was with the amount, and not the fact, of the verdict. The case has to stand, therefore, or fall, upon the right of the circuit judge to set this verdict aside, because it had been the result of influences indicated. The record setting aside does not assume that, in the opinion of the judge, it indicated either passion, prejudice, corruption, partiality, unaccountable caprice, or any improper influences. And if it can be assumed that he thought so, and did not express that as the reason, which is the most favorable assumption to be taken to uphold the action of the circuit judge, then, as said in the Turner Case, we can determine this question as well as he; and as decided in the Higgins Case, referred to, it is our duty to do so. It was said in that case: "It was...