Nashville Ry. & Light Co. v. Trawick

• Decision Date: 09 February 1907
• Citation: 99 S.W. 695,118 Tenn. 273
• Parties: NASHVILLE RY. & LIGHT CO. ET AL. v. TRAWICK.
• Court: Tennessee Supreme Court

99 S.W. 695

118 Tenn. 273

NASHVILLE RY. & LIGHT CO. ET AL. v. TRAWICK.

Supreme Court of Tennessee.

February 9, 1907

Appeal from Circuit Court, Davidson County; J. A. Cartwright, Judge.

Action by A. M. Trawick against the Nashville Railway & Light Company and another. From a judgment against the Nashville Railway & Light Company alone, it appeals. Judgment modified and affirmed.

J. C Bradford, J. J. Vertrees, and R. F. Jackson, for appellant.

P. D Maddin and Parks & Bell, for appellee.

WILKES J.

This is an action for damages for personal injuries. It was brought against the Nashville Railway & Light Company and the city of Nashville jointly. There was a trial before a jury in the court below, resulting in a verdict and judgment for the plaintiff; and the defendant railway and light company has appealed to this court. A new trial was awarded the city of Nashville, and thereupon the suit was dismissed as to it. Numerous errors are assigned by the railway and light company going to the merits of the case and based upon the bill of exceptions. These cannot be considered, inasmuch as the bill of exceptions is not properly a part of the record, having been filed after the time allowed by order of the trial judge when the final judgment was rendered. Wright v. Redd Bros., 106 Tenn. 719, 63 S.W. 1120; Hinton v Insurance Co., 110 Tenn. 118, 72 S.W. 118; Jones v Moore, 106 Tenn. 188, 61 S.W. 81; Muse v. State, 106 Tenn. 181, 61 S.W. 80; Bettis v. State, 103 Tenn. 339, 52 S.W. 1071.

A question is made, however, as to the validity and legality of the verdict and judgment of the court below, and this, being based upon the minute entries, can be considered, since such entries are a part of the record without a bill of exceptions.

The jury returned a verdict that "they found the issues in favor of the plaintiff, and by reason of the premises assess his damages in the sum of $7,250. Seven thousand dollars of this amount the jury awarded to the plaintiff A. M. Trawick and against the Nashville Railway & Light Company, and the costs, for which let fi. fa. issue. And they find for the plaintiff and against the defendant mayor and city council of Nashville in the sum of $250 and costs, for which let fi. fa. issue."

The court upon this verdict rendered judgment as follows: "It is therefore ordered, adjudged, and decreed by the court that the plaintiff recover of defendants the respective sums of $7,000 against the Nashville Railway & Light Company and $250 against the mayor and city council of Nashville, making in all the sum of $7,250, and the costs of this cause, for all of which let fi. fa. issue."

The Nashville Railway & Light Company moved in arrest of judgment upon the ground that there should have been but one judgment, and that the judgment for separate amounts against each of the defendants -- $7,000 against the Nashville Railway & Light Company and $250 against the mayor and city council of Nashville--was unlawful and void. This motion was denied.

The motion in arrest of judgment is as follows:

"Defendant Nashville Railway & Light Company moves the court that the judgment in this case be arrested on the ground and for the reason that under the pleadings in this cause there could be but one judgment; that there could not be and ought not to have been judgment for separate amounts against each of the defendants, to wit, $7,000 against the Nashville Railway & Light Company and $250 against the defendant mayor and city council; and that in this case, which was on a tort against both defendants, verdict and judgment thereon for separate amounts against each defendant were not lawful or admissible, and are void."

The Nashville Railway & Light Company moved the court to change the verdict, as already entered upon the minutes, so that, instead of its reading that the jury found the issues in favor of the plaintiff and assessed his damages at $7,250, of which it assessed or awarded the plaintiff $7,000 against the railway and light company and $250 against the mayor and city council of Nashville, that portion of it would read that they found the issues in favor of the plaintiff as against the Nashville Railway & Light Company and assess his damages against the Nashville Railway & Light Company in the sum of $7,000, and that they further find the issues in favor of the plaintiff and against the mayor and city council of Nashville and assess his damages against the mayor and city council of Nashville in the sum of $250.

A number of jurors were called into open court, on April 20, 1906, and examined with reference to what they had found and reported.

The evidence of the jurors as to what they intended we cannot consider, as it is not properly made a part of the record, but is contained in the rejected bill of exceptions.

The plaintiff moved the court for a new trial as to the mayor and city council of Nashville, which was granted, and the plaintiff then dismissed the case as to the mayor and city council. Plaintiff's counsel, at the time he made the motion, stated to the court and to all the parties that it was his intention, if the court granted the motion for a new trial, to dismiss the suit as to the mayor and city council of Nashville.

After the suit had been dismissed as to the mayor and city council of Nashville, the plaintiff moved the court to render a judgment in favor of the plaintiff and against the Nashville Railway & Light Company for $7,250, and to disregard the apportionment of the damages which the jury had undertaken to make. The court granted this motion and gave a judgment accordingly.

We think the verdict rendered by the jury was irregular and erroneous.

In Railroad v. Jones, 100 Tenn. 512, 45 S.W. 681, it was held, in substance, that when two or more persons are charged with a joint trespass, and both, or all, are found guilty, the jury cannot assess several damages, but they must be assessed jointly, against all jointly, although all may not be equally culpable. Quite a number of cases are cited in that opinion, and to these may be added a great weight of authority holding the same doctrine. Jones v. Grimmet, 4 W. Va. 104; Crawford v. Morris, 5 Grat. (Va.) 90; Bohun v. Taylor, 6 Cow. (N. Y.) 313; Wakely v. Hart, 6 Bin. (Pa.) 316; Bostwick v. Lewis, 1 Day (Conn.) 34; Washington Gaslight Co. v. Lansden, 172 U.S. 553, 19 S.Ct. 296, 43 L.Ed. 543; Chils v. Gronlund (C. C.) 41 F. 505.

The question is now presented whether this irregularity, and the subsequent steps taken, vitiate the judgment and verdict, or whether, as finally entered, the judgment was correct and warranted.

The contention of the defendant is that the verdict and judgment were void, and could not be validated by any act of the trial judge. The insistence of the plaintiff is that the judgment was merely irregular, but not void, and that proper judgment could be rendered thereon.

It is contended that the verdict is complete when it finds the issues in favor of the plaintiff and assesses his damages at the sum of $7,250, and that the remainder of the verdict, apportioning this amount separately, is mere surplusage, and might have been stricken out.

But, if this view be not correct, then the plaintiff could ask for judgment against the light company for $7,250, and dismiss as to the city; and that is virtually what was done.

In regard to verdicts of this character, there appears to be four distinct lines of procedure laid down by the authorities. The first class holds that the verdict should be set aside and a new trial awarded. Whitaker v Tatem, 48 Conn. 520; Washington Gaslight Co. v. Lansden, 172 U.S. 553, 19 S.Ct. 296, 43 L.Ed. 543; Chils v. Gronlund (C. C.) 41 F....