Pickard v. Ferrell
| Decision Date | 25 February 1959 |
| Citation | 45 Tenn.App. 460,325 S.W.2d 288 |
| Parties | Paul PICKARD, Agent of C. D. Demery, and C. D. Demery, Appellants, v. Homer FERRELL, Appellee. 45 Tenn.App. 460, 325 S.W.2d 288 |
| Court | Tennessee Court of Appeals |
[45 TENNAPP 462] Walker Gwinn, Memphis, for plaintiff in error.
John E. Proctor, Covington, for defendant in error.
We have before us for disposition on the present appeal two separate suits which were consolidated for trial in the lower court. The first suit was for replevin of a truck, instituted in the General Sessions Court of Tipton County by Paul Pickard, as agent of C. D. Demery, against Homer Ferrell and J. W. Turnage. After this suit had been appealed to the Circuit Court of Tipton County, it was amended to add C. D. Demery, along with Paul Pickard, agent, as a party plaintiff. The second suit was instituted by Homer Ferrell against Paul Pickard and C. D. Demery for the purpose of recovering the sum of $50 alleged to have been paid in error. Both suits were decided adversely to Homer Ferrell in the General Sessions Court, and were appealed by him to the Circuit Court where they were consolidated and tried to a jury with the Hon. Mark A. Walker, Circuit Judge presiding. The replevin suit was No. 331 and the suit to recover $50 was No. 373, in the Circuit Court. Inasmuch as Paul Pickard and C. D. Demery were plaintiffs in one suit, and defendants in the other, as was likewise true of Homer Ferrell, the respective parties will, for clarity, be called by their individual names.
The litigation here involved originated when Paul Pickard, as agent of C. D. Demery, instituted a replevin suit to obtain possession of a 1956 Dodge truck owned by [45 TENNAPP 463] Homer Ferrell, which he had purchased from J. W. Turnage and for which he had executed a title retained note. It was the contention of Pickard, as agent, and of Demery himself when he became a party, that this title retained note had been transferred by Turnage, a used-car dealer, to Demery as part of the collateral securing a note evidencing an indebtedness from Turnage to Demery. It seems that Demery had had a nervous breakdown and had appointed Pickard, his son-in-law, as his agent to look after his business for him. In that capacity, Pickard went to see Ferrell and collected $50 which was credited on the note held by Demery. Later, Ferrell paid to Turnage the entire balance due on what he claims was the original and only genuine title retained note executed by him, and received that note from Turnage. It was and is the contention of Ferrell that the so called title retained note held by Demery is a forgery. It seems that Turnage, in connection with his used car business, had perpetrated a large number of forgeries, and Demery, himself, testified that Turnage has been convicted of forgery and is now serving a term in the penitentiary for that offense. The $50 payment to Pickard was made by Ferrell January 3, 1957, and the final payment to Turnage in the amount of $138.10 appears to have been made March 1, 1957. After making the payment to Turnage, Ferrell brought suit to recover the $50 which he had paid to Pickard.
At the conclusion of all of the evidence in the Circuit Court trial of the consolidated causes, counsel for Pickard and Demery made a motion for a directed verdict, 'On the grounds that there is no material evidence on which the jury could base a verdict in favor of Mr. Ferrell and the only conclusion to be drawn from the [45 TENNAPP 464] whole evidence, including the title certificate, is that the original plaintiffs are entitled to possession of the truck.' This motion was overruled by the trial judge, and after he had charged the jury, the consolidated causes were submitted to the jury, which returned a verdict in both cases in favor of Ferrell and against Pickard and Demery.
Thereafter, on April 17, 1958, counsel for Paul Pickard and C. D. Demery filed a motion, which motion, including the caption of same, is copied herein in full, as follows:
'Motion for New Trial and for Judgment Non Obstante Veredicto
'Come the original plaintiffs and cross-defendants, Paul Pickard and C. D. Demery, and move the Court to set aside the verdict in this cause, grant a new trial and enter judgment in favor of said original plaintiffs and cross-defendants, for the following reasons:
'(1) There is no material evidence to support the verdict.
'(2) The Verdict is contrary to the evidence.
'(3) The evidence preponderates against the verdict.
'(4) The Court erred in overruling said original plaintiffs and cross-defendants Motion for peremptory instructions made at the conclusion of all the evidence in this cause.
'Wherefore, said original plaintiffs and cross-defendants move the Court to set aside the verdict [45 TENNAPP 465] awarded in the trial of this cause and enter judgment in this favor.
'(S) Walker Gwinn
'Walker Gwinn, Atty. for original plaintiffs and cross-defendants
'I, Walker Gwinn, hereby certify that I have mailed a copy of this motion to Mr. John Proctor, Attorney at law, this 16th day of April, 1958.
'(S) Walker Gwinn'
After said motion had been overruled by the trial judge, C. D. Demery and Paul Pickard excepted, prayed, and have perfected their appeal in the nature of a writ of error to this Court. Here, they have filed only one assignment of error which is as follows:
'The trial court erred in not granting appellants motion for a directed verdict made at the conclusion of all the proof; and the trial court erred in overruling appellants motion for a new trial.
'This was error because there was no evidence to support the verdict.'
This assignment of error requires us to examine the evidence, but our examination and review of the evidence, since the judgment in this case was based on a jury verdict, is not to determine where the truth lies nor to find the facts of the case, but must be limited to a determination of whether or not there was any material evidence to support the verdict. Cherry v. Sampson, 34 Tenn.App. 29, 232 S.W.2d 610; City Water Co. v. Butler, 36 Tenn.App. 55, 251 S.W.2d 433; Central Truckaway System v. Waltner, 36 Tenn.App. 202, 253 [45 TENNAPP 466] S.W.2d 985; Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6; East Tennessee Natural Gas Co. v. Peltz, 38 Tenn.App. 100, 270 S.W.2d 591; Nashville, Chattanooga & St. Louis Ry. v. Crawford, 39 Tenn.App. 37, 281 S.W.2d 69; Johnston v. Cincinnati N. O. & T. P. R. Co., 146 Tenn. 135, 149, 240 S.W. 429; Finchem v. Oman, 18 Tenn.App. 40, 49, 50, 72 S.W.2d 564, 570. In this connection, it is elementary that appellate courts may not consider or weigh the evidence or determine where the preponderance lies. Fairbanks, Morse & Co. v. Gambill, 142 Tenn. 633, 222 S.W. 5; Smith v. Tate, 143 Tenn. 268, 227 S.W. 1026; Cincinnati N. O. & T. P. R. Co. v. Denton, 24 Tenn.App. 81, 140 S.W.2d 796; Dorrity v. Mann, Tenn.App., 310 S.W.2d 191, 194. A number of witnesses testified on both sides of this litigation; but, in view of the above stated principles of law, it will be necessary for us to summarize only the testimony which entitled the appellee Homer Ferrell, to have his contentions submitted to the jury, supplemented by additional reference to such of the testimony offered on behalf of appellants, Paul Pickard and C. D. Demery, as may be necessary to present their contentions. Such contentions of appellants were, however, foreclosed by the jury's verdict.
Homer Ferrell testified that it was his genuine signature on the note on which he had made the final payment to J. W. Turnage March 1, 1957. This note, in the amount of $1,398.10, dated January 17, 1956, and a photostatic copy of a note of J. W. Turnage to Mrs. C. D. Demery in the amount of $2,747.00, marked 'paid', which he said Turnage had delivered to him at the time of making the final payment on his own note, were offered in evidence. He also offered in evidence receipts for [45 TENNAPP 467] payments made on the note for $1,398.10 which totalled that amount. The title retained note in the amount of $1,398.10 showed that it was secured by a 1956 Dodge truck, motor number VT 33422256. He testified that he went through the third grade in school, that he could with difficulty write his name, that he was nearly blind, that the note held by Demery is a forgery, that on the night of January 3, 1957, when Paul Pickard called on him, no note was shown to him by Pickard, but that he did show to Pickard the receipts which he held. He said that he took Pickard's word for having the note and that, at that time, he was somewhat intoxicated, having had, as he expressed it, a little of this 'Mississippi River Dew'. He denied having told Pickard to replevy the truck.
Mrs. Homer Ferrell testified that she was present when her husband paid Paul Pickard $50, and that she saw no note, but did see receipts, and that her husband was drinking at that time. When presented with the note held by Demery, she said she thought the signature on it was the same as the one on the note which he had paid to Turnage. In the course of her testimony, however, she pointed to the printed or typed name of Homer Ferrell as being his signature.
C. D. Demery testified that J. W. Turnage, who was in the used car business during 1956, has been convicted of forgery. He said that he and Turnage had been good friends, and that he did a tremendous business with Turnage, lending him money on numerous occasions. He said he had Turnage's note for $43,850, and that on December 15, 1956, Turnage transferred and assigned to him a title retained note, allegedly executed by Homer Ferrell, on a 1956 Dodge truck, motor number 84270139, [45 TENNAPP 468] which note was to be paid at $50 per month and showed payments regularly made up to that date. The motor number on the truck replevied matched the motor number referred to in this note, and corresponded with the motor number on the truck replevied and...
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