Tevis v. Proctor & Gamble Distributing Co.

• Decision Date: 03 July 1937
• Docket Number: No. 6.,6.
• Parties: TEVIS v. PROCTOR & GAMBLE DISTRIBUTING CO.
• Court: Tennessee Supreme Court

113 S.W.2d 64

TEVIS v. PROCTOR & GAMBLE DISTRIBUTING CO.

No. 6.

Court of Appeals of Tennessee, Eastern Section.

July 3, 1937.

Certiorari Denied by Supreme Court February 12, 1938.

COPYRIGHT MATERIAL OMITTED

Error to Second Circuit Court, Knox County; L. H. Carlock, Judge.

Action by Paul Tevis against the Proctor & Gamble Distributing Company for injuries sustained in an automobile collision. To review a judgment for the defendant, the plaintiff brings error and the defendant moves to dismiss.

Motion to dismiss denied and judgment affirmed.

Hartman, Hartman & Doughty, of Knoxville, for plaintiff in error.

Jennings & O'Neil, of Knoxville, for defendant in error.

AILOR, Judge.

Paul Tevis filed his original action for damages for personal injuries against Proctor & Gamble Distributing Company and J. G. Crihfield in the Second circuit court of Knox county. He sought a recovery in the amount of $50,000 on account of personal injuries received on the night of March 6, 1936, as a result of being struck by an automobile owned by Proctor & Gamble Distributing Company and driven by J. G. Crihfield at the time of the accident while in the discharge of his duties as an employee of said company.

The first trial of the cause resulted in a mistrial. The second trial was finished on Friday, February 5, 1937, but the jury not having time to finish its deliberations on that date, it was respited until Monday, February 8, 1937. At the conclusion of its deliberations the jury returned a verdict in favor of the defendants, and the plaintiff's suit was dismissed. Thereafter plaintiff filed his motion for new trial in due course, and the same was overruled on March 6, 1937. The order denying motion for new trial was not entered at the time it was made, but on March 20, 1937, a nunc pro tunc order was entered as of March 6, 1937. This order allowed plaintiff 45 days within which to prepare and file both appeal bond and bill of exceptions. On April 19, 1937, the time for filing bill of exceptions was extended until April 30, 1937. And bill of exceptions was filed on April 29, 1937, or within the time as extended.

An appeal bond was filed April 17, 1937, 42 days from March 6th, the day upon which the court acted upon the motion for new trial, but less than 30 days from March 20th, the day upon which the nunc pro tunc order went to record. It is now insisted that the appeal bond was not filed within the time required by the statute, and that this court acquired no jurisdiction of the attempted appeal. This insistence is based upon the theory that the court could not grant more than 30 days for the filing of an appeal bond under the provisions of the statute, and that the appeal bond was not filed within 30 days from the making of the order overruling motion for new trial and granting an appeal.

This question has been before this court and the Supreme Court in various forms on numerous occasions, and while there is no question about the rule, it is sometimes difficult of application. It involves a consideration of the provisions of section 9047 of the Tennessee Code of 1932, which is as follows:

"When an appeal or appeal in the nature of a writ of error is prayed from a judgment or decree of an inferior court to the court of appeals or supreme court, the appeal shall be prayed and appeal bond shall be executed or the pauper oath taken within thirty days from the judgment or decree, if the court holds so long, otherwise before the adjournment of the court, but for satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty days, the court may extend the time to give bond or take the oath in term or after adjournment of the court; but in no case more than thirty days additional."

Mr. Justice Swiggert discussed this question most ably in the case of Physicians' Mutual Health & Accident Insurance Co. v. Grigsby, 165 Tenn. 151, 53 S.W.2d 381, 382, in which, among other things, it was said:

"If the court holds as much as thirty days from the date of the rendition of a judgment, the circuit court is authorized by statute to extend the time for the filing of an appeal bond for an additional thirty days, making a maximum period of sixty days for the perfecting of an appeal by the filing of bond, as held in England v. Young, 155 Tenn. 506, 296 S.W. 14."

In the case before us the court verbally overruled the motion for new trial on March 6, 1937, but the order was not in fact entered of record on that date. And no order was entered of record until March 20, 1937, at which time the court still had authority to grant additional time not exceeding 30 days. The order as entered on March 20th attempted to allow appellant 45 days' time within which to file his appeal bond. And while it is insisted by appellee that this time is to be computed from the time of the making of the verbal order overruling motion for new trial, we do not think this insistence can be sustained. To give effect to this insistence would be to say that 14 days of the time allowed had already expired. There is nothing in the record to indicate that the court intended to so limit the time for appeal. On the contrary, we think a proper construction of the order entered would indicate that the court intended to give plaintiff in error 45 days from the entry of the order. And while the court was without authority to grant more than 30 days from the entry of the order, we think the order granting 45 days was sufficient to give the 30 days within the power of the court. And since the bond was filed within 30 days after the entry of the order, we think the motion to dismiss is not well taken, and that it must be denied. We think the filing of an appeal bond less than 30 days after the entry of an order granting 45 days is sufficient to transfer the case to this court, and that this court has jurisdiction to review the record. The order as entered was valid to the extent that the court had jurisdiction as to the time allowed, and invalid only to the extent of the excess time allowed. And we now proceed to an examination of the questions raised by assignment of errors. But before noticing the several errors assigned, we shall give a brief statement of the facts.

On the night of March 6, 1936, the plaintiff was driving his automobile westwardly from Newport towards Knoxville on U. S. Highway 11E. After crossing the Holston river bridge and traveling a short distance, plaintiff's automobile collided with an automobile owned and driven by a man by the name of Mullins. At the time of the collision the Mullins automobile was being driven in an easterly direction along said highway. As a result of the collision, both automobiles participating in same were disabled, the Mullins car in such position as to block the southern portion of the highway for vehicles, and extending somewhat diagonally across the same. Immediately after the collision plaintiff attempted to move his car off of the highway, and succeeded to some extent in doing so. The rear wheels of the car, which was a large Buick sedan, were off of the improved portion of the highway and the front wheels were on the shoulder of the road on the side opposite from the Mullins car. We think it appears that plaintiff moved his automobile as far as he could in its damaged condition.

After plaintiff had moved his automobile as above set out, he proceeded to try to unload its contents, which was moonshine liquor. While he was attempting to unload the liquor, he was struck by the automobile of defendants. The accident happened about 9 o'clock at night. The facts up to this point are not disputed, but there is some dispute as to certain features of the evidence as to the exact location of the two cars participating in the first collision, the speed of the car of defendants, etc. These matters will be discussed in connection with separate assignments of error by the plaintiff, which we now proceed to consider in their order.

It is first insisted that the court erred in not granting plaintiff a new trial because the evidence preponderated in favor of the plaintiff and against the defendant. This assignment presents no question for review in this court. There is no rule of law better settled in this state than that the verdict of a jury is conclusive of questions of fact where there is a conflict of evidence as to the particular fact decided by the jury, and that an appellate court will not pass upon the weight of the evidence or the preponderance of the same. This question was before the Supreme Court in the early case of Van Huss v. Rainbolt, 42 Tenn. 139, 140, 2 Cold. 139, 140, and the rule announced as above set out. The rule has been reaffirmed in numerous cases by this court and the Supreme Court in both published and unpublished opinions. See Brenizer v. Nashville, etc., Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099. Also Greenlaw v. Louisville & N. R. Co., 114 Tenn. 187, 86 S.W. 1072.

It is next insisted that the court erred in refusing to grant a new trial, because the verdict of the jury evinced passion, prejudice, and caprice against the plaintiff. Before proceeding to a consideration of this assignment of error, we think it not out of place to observe that there is no assignment to the effect that there is no evidence to support the verdict of the jury, and that this assignment is the only one which would involve a consideration of the evidence. It is not even insisted that there is no evidence to support the verdict, but we are asked to review all of the evidence in connection with this assignment and hold that a proper consideration of all of the evidence established the fact that the verdict of the jury was the result of passion, prejudice, and caprice. In other words, we are asked to accomplish the same results under this assignment that we could not accomplish under the first assignment presented, viz., to weigh the evidence and determine the preponderance of same. As an...