King v. Cox

• Decision Date: 23 November 1912
• Citation: 151 S.W. 58
• Parties: KING et al. v. COX et al.
• Court: Tennessee Supreme Court

151 S.W. 58

KING et al. v. COX et al.

Supreme Court of Tennessee.

November 23, 1912.

Certiorari to Court of Civil Appeals.

Action by Sam. L. King and others against W. H. Cox and others. The judgment of the Court of Civil Appeals affirmed a judgment in the circuit court for plaintiffs, except as to one of them, and both parties bring certiorari. Reversed and remanded for further proceedings.

Harr & Burrow and A. C. Keebler, all of Bristol, and C. A. Brown and H. H. Smith, both of Blountville, for plaintiffs. Mullenix & St. John, of Bristol, for defendants.

NEIL, J.

The present action was brought in the circuit court of Sullivan county on an injunction bond, which the plaintiffs in error had executed in a case formerly brought by them in the chancery court of that county. Numerous objections to evidence were offered in the trial court by the plaintiff in error, and overruled by the trial judge. Both sides moved for peremptory instructions. The court thereupon overruled the motion of plaintiffs in error, but sustained that of defendants in error, and directed a verdict in favor of the defendants in error for the sum of $1,460. From this judgment, after a motion for new trial had been made and overruled, an appeal was prosecuted to the Court of Civil Appeals. In that court the judgment was affirmed as to all of the defendants in error except J. F. Yoakly. Both sides filed a petition for certiorari in this court, and both were granted, and the case was set down for argument.

The Court of Civil Appeals held that, inasmuch as both parties had moved for peremptory instructions, this was a mutual agreement to take the case from the jury, and to permit it to be decided wholly by the trial judge, and that each side, by such motions, waived all objections to evidence. That court, in support of the first proposition, relied upon two cases decided by it: Railway Co. v. Crutcher, 1 Tenn. C. C. A. 231, and Aizenshtatt v. Mayor, Id. 805. For the proposition that such motions waived all objections to evidence, reliance was had upon the rule that a demurrer to the evidence has that effect, and it was held that a motion for peremptory instructions was substantially the same as a demurrer to the evidence, and therefore must operate in the same manner upon such objections.

This view lies at the threshold of the present controversy, and must be disposed of before other questions can be considered.

As to the first proposition, this court has taken a different view, from the two cases cited from 1 Tenn. C. C. A., in a recent case, decided at the present term, Virginia-Tennessee Hardware Co. v. Ollie Sue Hodges, 149 S. W. 1056. It was held in that case that such concurrent motions did not have the effect of an agreement by the parties that the whole controversy should be determined by the trial judge. After discussing the grounds on which this court thought the decision of the question must rest, it was said, in conclusion:

"We are of the opinion that, under the true practice, the motion of each party should be treated for what it is, a matter wholly distinct from and adverse to that of his adversary; that neither is put in a worse position, so far as concerns his ultimate right of review, by his adversary's making a similar motion; that such motion should stand as if made and remaining alone, and should be disposed of on its own merits; that the only question submitted to the trial judge is the question of law above indicated; that as a necessary preliminary to responding to this question he must determine whether there is any substantial conflict in the evidence; that if he find such conflict, or undisputed evidence from which conflicting inferences may reasonably be drawn, on material points, he should submit the case to the jury; that if he is of opinion there is no such conflict he should sustain the motion of one party or of the other, according to his view of the facts and the law; that the party whose motion has been overruled may have the action of the trial judge reviewed on appeal, without the necessity of asking the submission of any special question or questions to the jury; that on such appeal he may attack the action of the trial judge, in overruling his motion and in sustaining that of his adversary, and may put forward his contention of the facts and assail that of his adversary; and the appellate court will for itself ascertain the facts, and will determine whether the trial judge should have sustained the one motion or the other, or should have submitted the case to the jury."

The question, then, as to whether a motion for peremptory instructions is a waiver of the right to assign errors in the appellate court on the rulings of the trial judge on points of evidence, must be determined without regard to whether both parties made motions or only one of them.

The question, therefore, is reduced to the inquiry whether the making of a motion for peremptory instructions waives objections made to the rejection or admission of evidence on the part of the person making the motion. Aside from the fact of concurrent motions, it is insisted that, if either plaintiff or defendant below make such motion, he waives all such errors. The argument in support of the contention seems to be that a motion for peremptory instructions is practically identical with a demurrer to the evidence. It is held in this state, and others, that where a demurrer to the evidence is filed, this does waive such errors, regardless of whether the motion was successful or unsuccessful. Southern Railway Co. v. Leinart, 107 Tenn. 635, 64 S. W. 899; Coleman v. Bennett, 111 Tenn. 705, 711, 69 S. W. 734.

The two motions have points of similarity, but also material points of difference. In the demurrer to the evidence the defendant sets out all of the evidence admitted by the trial judge in behalf of the plaintiff, and confesses its truth. This is clinched by the joinder of the plaintiff. It is absolutely binding on the demurring party, with all legal and reasonable inferences that may be deduced therefrom, and is equivalent to a special verdict. It withdraws the case from the jury, and submits to the court the application of the law to the facts. Where the evidence is written, and where, though parol, it is certain, the party who offers it must join in the demurrer, or waive the testimony. If the plaintiff refuse to join, except in terms which the court disapproves, his evidence is considered as withdrawn, and the jury must find a verdict for the defendant. The party who prevails on the demurrer is entitled to final judgment in his favor. The demurrer is complete in itself, and no bill of exceptions is needed for its preservation. Hopkins v. Railroad, 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354; Summers v. Railroad, 96 Tenn. 459, 35 S. W. 210; Railroad v. Brown, 96 Tenn. 559, 35 S. W. 560; Thane v. Douglass, 102 Tenn. 307, 52 S. W. 155; Artenberry v. Railroad, 103 Tenn. 266, 52 S. W. 878; Barr v. Railroad, 105 Tenn. 544, 58 S. W. 849; Mitchell v. Railroad, 100 Tenn. 329, 45 S. W. 337, 40 L. R. A. 426; Manufacturing Co. v. Morris, 105 Tenn. 654, 58 S. W. 651; Coleman v. Bennett, 111 Tenn. 705, 714, 69 S. W. 734; Railroad v. Sansom, 113 Tenn. 683, 84 S. W. 615. "The office and function of a demurrer to the evidence is to test the strength of plaintiff's case upon his own testimony, and not upon the testimony of both parties, nor upon facts agreed to by both parties." Bridgeport &c. Co. v. Railroads, 103 Tenn. 490, 495, 53 S. W. 739, 740. Even if the evidence is conflicting, this does not prevent the case from being submitted under a demurrer to the evidence. "It is said, if the evidence is conflicting, only that must be looked to which is most favorable to plaintiff on demurrer to evidence. This is not a correct statement. The evidence must be looked to as a whole, and all reasonable inferences drawn from it in plaintiff's favor; but none of it must be excluded simply because unfavorable, but only if shown by other evidence to be incorrect." Corbett v. Smith, 101 Tenn. 368, 374, 47 S. W. 694, 695.

On a motion for peremptory instructions, no joinder is necessary. It may be made at the close of the plaintiff's evidence, or at the close of all of the evidence. If the evidence is conflicting on material points, or if diverse inferences as to material matters can be drawn from evidence not conflicting, the case must go to the jury, and cannot be decided by the court. The motion to instruct does not necessarily dispose of the whole case. Although there may be no conflict as to the right of action, there may be as to the amount of the recovery, and in that event the latter question will be settled by the jury. The party making the motion is not required to formulate the evidence and sign a statement thereof as under a demurrer; but the motion is made orally on the evidence as delivered before the court. Likewise, if there be a question as to the credibility of witnesses, the case must go to the jury. While a party who files a demurrer to the evidence must sustain it at his peril, the penalty being a judgment against him if he fail, such is not the result on failure to sustain a motion for peremptory instructions. The effect simply is that the case goes to the jury for trial. The party who files a demurrer to the evidence says, in effect, by his written submission, that there is no doubt as to any of the facts, and purports to set them all out, and, if there is any apparent conflict in the evidence so set forth, this by the act itself of filing the demurrer submits the decision and determination of this question of fact to the court, for the harmonizing of all the evidence in respect thereof; while one who files a motion to instruct, although he asserts that the evidence is without conflict, yet he does so in submission to the rule of law that if there be any conflict on any material or determinative question of evidence it is the duty of the court...