Sherlin v. Roberson

CourtCourt of Appeals of Tennessee
Citation551 S.W.2d 700
Decision Date15 October 1976
PartiesDavid SHERLIN et al., Plaintiffs-Appellants, v. James E. ROBERSON, Administrator, Defendant-Appellee. 551 S.W.2d 700

Andrew J. Sinor, Cleveland, for plaintiffs-appellants.

Mayo L. Mashburn, Cleveland, for defendant-appellee.

OPINION

McAMIS, Special Judge.

This case is before the court solely on the technical record and a bill of exceptions reflecting only what occurred when the court overruled plaintiffs' motion for a new trial following a jury verdict for the defendant administrator. Plaintiffs have appealed from a judgment dismissing their suit.

We find it necessary to decide the single question: Did the trial judge approve the verdict as the thirteenth juror? We quote in full the remarks of the trial judge in overruling plaintiffs' motion for a new trial:

"Well, as I stated in my statements Monday, I think that the Court has to be reasonable as the thirteenth juror and basically at the time the Motion for Directed Verdict was made the Court pretty well made its mind up at that time that there were certain questions of fact which had to be determined by the jury, and I can't say the jury reached the wrong verdict. I can't say that they reached the right verdict. Before I would as a thirteenth juror, before I would set the verdict aside, it would have had to have been a verdict that I couldn't have lived with, and that was not the case in this case. I thought it was a case that could have gone either way, very much so. Most cases are not as close as the questions as in this case that appeared at the time of the trial, and I can't say that I can't agree with what the jury did. I think I have approved their verdict by order and the court still approves their verdict."

With deference to the trial judge, it seems to us that when he said he could not say the verdict of the jury was right there was a clear disavowal of approval. The statement immediately following, that he could not say the verdict was wrong, cannot be taken as neutralizing the first statement. Taking the two statements and considering them together they would indicate that the judge had no opinion either way. These statements considered in context with the pro forma approval of the verdict with which he concluded his remarks seem to show that, notwithstanding his lack of conviction, the court was deferring to the verdict of the jury and disclaiming any opinion of his own. When he stated he could not say the verdict was right he failed to do precisely what he must do before rendering judgment on the verdict.

The above-copied remarks of the judge make it appear he disassociated himself from the deliberative process which is the peculiar and exclusive province of the jury of which the presiding judge is as much a member as jurors sitting in the jury box. Indeed, it must be said that, by reason of his training as a lawyer and his experience in weighing testimony, he is the most important member of the jury.

To say, as the trial judge did in this case, that before the trial judge, acting as the thirteenth juror, should set aside a verdict it would have to be a verdict that he could not live with would be to adopt a standard relieving the judge of the duty to take an unbiased and dispassionate view of the evidence, weigh it and determine whether the evidence preponderates in favor of the plaintiff or defendant or is equally balanced.

If the trial judge abdicates this important duty justice could often miscarry. On appeal the evidence cannot be weighed as in the trial court. As has been said so often, a verdict in a civil case approved by the trial judge cannot be overturned if there is any...

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14 cases
  • Buckley v. Elephant Sanctuary in Tenn., Inc.
    • United States
    • Tennessee Court of Appeals
    • June 16, 2021
    ...v. Norfolk Southern Ry. Co. , 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). Having no opinion is not an option. Sherlin v. Roberson , 551 S.W.2d 700, 701 (Tenn. Ct. App. 1976). To approve the verdict is to "reach[ ] the same verdict as the jury after independently weighing the evidence and pas......
  • Hardesty v. Service Merchandise Co., Inc.
    • United States
    • Tennessee Court of Appeals
    • February 5, 1997
    ...a jury's verdict and order a new trial. James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613, 616 (Tenn.1977); Sherlin v. Roberson, 551 S.W.2d 700 (Tenn.Ct.App.1976). Therefore, if the trial court disagrees with the amount of the verdict, finding it to be either excessive or inadequate, ......
  • Cooper v. Tabb
    • United States
    • Tennessee Court of Appeals
    • December 22, 2010
    ...to be essentially a “pro forma approval of the verdict” which must be read in the context of all of his comments. Sherlin v. Roberson, 551 S.W.2d 700, 701 (Tenn.Ct.App.1976). The gist of the trial judge's remarks appears to be that, given the somewhat untenable choice of finding that Dr. Ta......
  • Craig v. Dison, No. M2003-00419-COA-R3-CV (TN 8/5/2004)
    • United States
    • Tennessee Supreme Court
    • August 5, 2004
    ...that the trial court had independently weighed the evidence, as required as the thirteenth juror. Id. at 349. In Sherlin v. Roberson, 551 S.W.2d 700 (Tenn. Ct. App. 1976), this court found that the trial court had not affirmatively approved the verdict as the thirteenth juror and reversed t......
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