                    IN THE TENNESSEE COURT OF APPEALS
                        WESTERN SECTION AT JACKSON
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GLORIA JEAN WOOLFORK                                   Madison Circuit No. C-92-120
                                                       C.A. No. 02A01-9411-CV-00266
          Plaintiff/Appellee,

vs.                                                    Hon. Whit LaFon, Judge

HAMPTON INNS, INC., and
PHILLIP H. MCNEILL and
R. BRAD MARTIN, d/b/a
                                                                       FILED
JACKSON INNS, LTD.,                                                     February 7, 1996
          Defendants/Appellants.                                       Cecil Crowson, Jr.
                                                                       Appellate C ourt Clerk
JAY DEGROOT and PATRICK N. PARKER, Garrety & Sanders, Jackson,
Attorneys for Plaintiff/Appellee

JAMES A. HOPPER, Hopper, & Plunk, Savannah,
Attorney for Defendants/Appellants

REVERSED AND REMANDED

Opinion Filed:

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TOMLIN, Sr. J.


          Gloria Jean Woolfork (“plaintiff”) filed suit in the Circuit Court of Madison

County against Phillip H. McNeil and R. Brad Martin, d/b/a Jackson Inns, Ltd.,1 seeking

damages for her personal injuries allegedly caused by defendant’s negligence.           The case

was tried before a jury, which returned a verdict in favor of plaintiff.                Although

defendants have raised several issues on appeal, the pivotal issue in this case is whether

the trial court properly performed his function as a thirteenth juror in denying defendants’

motion for a new trial. After reviewing this record, we are of the opinion that he did not,

and we reverse and remand this case for a new trial.



          Plaintiff was injured while attending a meeting of her employer, being held in a

meeting room in defendant’s hotel in Jackson.            During the meeting, a large picture




1
    The trial court granted summary judgment in favor of defendant Hampton Inns, Inc.

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allegedly fell from the wall and struck plaintiff in the base of the neck, causing her

injuries and pain.     Following a jury trial, a verdict was entered in plaintiff’s favor in the

amount of $100,000.00.            Defendant filed a motion for a new trial, contending that the

evidence preponderated against the verdict and that there was no material evidence to

support the verdict. Defendant asked for a new trial or in the alternative a remittitur. The

trial court denied defendants’ motion for a new trial, but granted a remittitur of

$50,000.00.



       As previously noted, the issue as to whether not the trial court properly assumed

his duties as the thirteenth juror is dispositive of this case. The obligation of a trial judge

to act as a thirteenth juror in a civil trial in this state is well established. Our supreme

court in Cumberland Telephone & Telegraph Co. v. Smithwick, 79 S.W. 803 (Tenn. 1904)

stated the rule as follows:



               The rule in civil cases is that, if the circuit judge is dissatisfied with
       the verdict of the jury, it is his duty to set it aside and grant a new trial, and
       that upon its being made to appear to this court, from statements made by
       the circuit judge in passing upon the motion for a new trial, that he was
       really not satisfied with the verdict, it becomes the duty of this court, when
       it has acquired jurisdiction of the cause, to do what the circuit judge should
       have done; that is, to grant a new trial on the ground of the dissatisfaction
       of that judicial officer with the verdict.

               ....

              The reasons given for the rule are, in substance, that the circuit judge
       hears the testimony, just as the jury does, sees the witnesses, and observes
       their demeanor upon the witness stand; that, by his training and experience
       in the weighing of testimony, and the application of legal rules thereto, he
       is especially qualified for the correction of any errors into which the jury by
       inexperience may have fallen, whereby they have failed, in their verdict, to
       reach the justice and right of the case, under the testimony and the charge
       of the court; that, in our system, this is one of the functions the circuit judge
       possesses and should exercise—as it were, that of a thirteenth juror. So it
       is said that he must be satisfied, as well as the jury; that it is his duty to
       weigh the evidence, and, if he is dissatisfied with the verdict of the jury, he
       should set it aside.



Id. at 804 (citations omitted).



       If the trial judge, when called upon to act as a thirteenth juror following the filing

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of a motion for a new trial, simply approves a verdict without any comment, it is

presumed by an appellate court that he has performed his function adequately.             Holden

v. Rannick, 682 S.W.2d 903, 905 (Tenn. 1984);             Central Truckaway System, Inc. v.

Waltner, 253 S.W.2d 985, 991 (Tenn. App. 1952).



       In the event that the trial court does state his reasons, an appellate court is to

examine them only for the purpose of determining whether the trial court properly

reviewed the evidence, and was satisfied or dissatisfied with the verdict.        Smithwick, 79

S.W. at 805.    However, if in discharging his duty as thirteenth juror, the trial judge makes

comments which indicate that he has misconceived his duty or clearly has not followed

it, this court must reverse and remand the case for a new trial. See Nashville, C. & St.

L.R.R. v. Neely, 52 S.W. 167, 168 (Tenn. 1899); Holden, 682 S.W.2d at 905.



       It now becomes our responsibility to examine the comments made by the trial judge

when he overruled defendants’ motion for a new trial in light of the rule and the manner

in which it is applied. The following is the relevant portion of the exchange between the

court and counsel for defendant at the hearing for defendant’s motion for a new trial:



       MR. HOPPER: Yes, sir, we’re of course approaching The Court as the 13th
       juror under the liability as well as the damages and in the alternative we are
       asking for a remittitur. What occurred in this particular incident was Ms.
       Woolfork was working for Tennalum, which had some kind of program
       where they would go out and kind of fire up their employees the way I took
       it, but anyway, they met for the first time at the Hampton Inn, meeting room
       106.

       THE COURT: Mr. Hopper, let me say this.              The court is satisfied with
       everything except the amount of the judgment.

       MR. HOPPER: Does Your Honor not want to weigh the evidence of the
       liability?

       THE COURT: I’ve gone over it myself as to what took place in my notes,
       and I’m satisfied with it. Now, I’m going to let you go over it if you want
       to. Just go ahead, but I’m saying to you now that the thing that concerns me
       is the amount of the judgment and not the judgment itself.

       MR. HOPPER: You’re not considering this morning to weigh the evidence
       on the liability.

       THE COURT: Sure I am weighing it, but I’m telling you that I’ve been off

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now two or three months, and this is one of the last cases I’ve had, and I’ve
had the file and I have looked at it any number of times and have gone over
in my head as to what the proof is, and in my own personal mind, the jury
was—the jury returned a verdict that the proof will sustain.
        Now, I’m going to let you go ahead, and you may can bring
something else up, but I’m just telling you that’s the position I’m in. I
haven’t forgotten about it since I heard it, and I was here and listened to it
and I listened to the judgment.
        What I normally do is when a jury comes in that I then go back right
then, myself, and make some notes and try to make a decision then whether
I think the verdict will stand and the various aspects of the case. I do that,
and I did that here in this case. Now, I’m telling you that The Court, unless
you can change it, and of course, I’ll consider anything and I don’t know
what you want to say, but I’m telling you that The Court, unless you have
some additional proof or not additional proof, but something I don’t
remember, then I’m telling you that I’m satisfied with everything except the
size of the judgment itself.

       ....

THE COURT: Let me ask you this. Do you have any question in your mind
but what it fell?

MR. HOPPER: No question about it. It got on the floor, but I don’t know
whether it fell or not Your Honor. If you ask me my own personal view,
which doesn’t amount to a hill of beans, I think they broke the picture
pulling it off.

THE COURT: So, this whole thing is just a made-up scheme?

MR. HOPPER: Yes, sir, because you can’t get around the fact that exhibit
two weights [sic] anywhere from 25 to 30 pounds and it’s so bulky, there’s
no way that that picture could fall unless it was—do you recall the man that
installed it was irked.

THE COURT: Well, we have proof here that it fell, and we have 12 jurors
that found that it fell and injured her. That’s what we’ve got in this case.
We have proof that these witnesses say or some of the witnesses are saying
that it fell, and it’s not a question of it’s one or ten, but we have witnesses
to prove—that say that the picture fell. She did, for example, which the jury
can consider it, against 50 people, and that it fell and that it hit her. That’s
the proof that was introduced here. Now, if you don’t believe it, I’m sorry,
but apparently the jury did.

MR. HOPPER: Well, let me throw this ace in the hole then. Do you
remember Mr. Monty Todd, and he was standing there watching it and
supposedly Mrs. Woolfork said that she said, “Watch out,” but he testified
that he never did see the picture strike the plaintiff. He said it vividly, “I
never saw the picture strike her.” Then—

THE COURT: Just a minute, as I understand the law, the jury then could
find that it didn’t strike her because—if they want to, but they found that it
struck her.

MR. HOPPER: But, if Your Honor please, I’m trying to convince Your
Honor, I don’t care about the jury, you are the 13th juror.

THE COURT: I’m already convinced from what proof was heard. I’m
going to listen to you now and I’m going to let you try to unconvinced me.

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As I understand the function of the Judge as the 13th lawyer—13th juror,
it’s not his own opinion, it’s a question of whether there’s any reasonable
amount of proof there that can sustain the verdict.

MR. HOPPER: If Your Honor please, I hate to beg to differ with you, but
my interpretation of the 13th juror, the Judge, and this is my only chance
and you’ve got to weigh the evidence, forget what the jury came back with,
just put that completely out of the way. Your Honor don’t agree with that?

THE COURT: I don’t necessarily disagree, but now as I understand the law,
the jurors are the ones who determine the facts.

MR. HOPPER: But, so is Your Honor now as the 13th juror.

THE COURT: All right, I’m considering it.

       ....

THE COURT: I agree with you that it raises the question of fact. Now, the
jury itself found that fact in favor of the plaintiff.

MR. HOPPER: I’m asking Your Honor to consider for the defendant. Am
I taking it that Your Honor is saying that if the jury thinks that way, that’s
it. If so, otherwise I’ll go on to something else.

THE COURT: I understand what we do have—when you tell a juror that
you determine what the facts are.

MR. HOPPER: Well, I’m saying that Your Honor is saying to me that it’s
the jury who determines the facts and that’s fine with Your Honor?

THE COURT: What I’m saying to you, Mr. Hopper, is that based on the
entire case, The Court is of the opinion that this woman and with the finding
of the jury, The Court is of the opinion that this woman is entitled to some
judgment.

MR. HOPPER: Based upon the jury’s—

THE COURT: No, partially based on that because it’s my duty to consider
their decisions and it was their opinion that this woman was injured from
that picture and apparently that’s what they said; so, The Court is of the
opinion that they were correct in that, and that the woman is entitled to
some judgment, as the 13th juror or whatever.

MR. HOPPER: Well, I’m just trying to—Your Honor knows that on appeal
on any jury verdict, you have got a material evidence rule, and this is the
only place that a party to a lawsuit can get an independent judgment of the
facts regardless of the jury verdict. And, Your Honor should just cast out
what the jury came back with, I think, to hear my argument or determine my
argument or make a conclusion. Just what Your Honor would do if you
were on the jury with those facts and that credibility and that physical
evidence.

THE COURT: I don’t really understand and I’m talking too much, but I
really don’t understand that that’s the law, but the point about it is, is what
the—the Judge is supposed to give due consideration as to what the jury
finds the facts to be, and then make a decision based on that and everything
else in the case and make a determination.
         Based on the jury verdict, based on the proof I heard, it’s The Court’s

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       opinion that the woman is entitled to some judgment.

       MR. HOPPER: I take it Your Honor is basing it on what they ruled?

       THE COURT: No, based on everything that took place.




       We now undertake to compare the trial judge's statements in the case at bar with

the statements made by trial judges in other reported decisions in which it was held that

the judge misconceived his duty as thirteenth juror and deferred to the jury. The first of

these cases is Nashville, C. & St. L.R.R. v. Neely, 52 S.W. 167 (Tenn. 1899), which was

a suit for personal injuries sustained by the plaintiff as he disembarked from one of the

defendant's passenger trains.    The jury returned a verdict in favor of the plaintiff for

$7,500, which plaintiff remitted by $5,500, leaving a verdict of $2,000. Defendant made

a motion for new trial, which was denied, and appealed. In overruling the motion for a

new trial, the court stated that the "facts in the case were considerably mixed, but that it

was a rule of his to rarely invade the province of the jury in setting aside their verdicts,

if there were any substantial facts to support the same." Id. at 168.         The supreme court

reversed, stating that the statements of the trial court showed his misconception of the

functions of the court and jury and gave unwarranted weight to the verdict.



       In McLaughlin v. Broyles, 255 S.W.2d 1020 (Tenn. App. 1952), the plaintiffs

brought suit for injuries sustained in an automobile accident. The jury returned a verdict

in favor of the defendant. In overruling plaintiffs' motion for a new trial, the court stated

as follows:



              In these cases where the evidence is in sharp conflict the Court does
       not feel that he has a right to interfere with the verdict of the jury, and
       overrules the motions.



Id. at 1022.    Because it affirmatively appeared that the trial judge did not weigh the

evidence, this court reversed and remanded the case for a new trial.




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        The comments of the trial judge in this case, when considered as a whole, indicate

that he misconceived his duty as the thirteenth juror. At one point, the trial judge stated,

“[a]s I understand the function of the judge as the . . . 13th juror, it’s not his own opinion,

it’s a question of whether there’s any reasonable amount of proof there that can sustain

the verdict.”   This statement is inconsistent with the judge’s duty as the thirteenth juror

to independently weigh the evidence and pass upon the issues.



        Again, the trial court made the following seemingly, harmless but unfortunate,

remarks:



                I don’t really understand and I’m talking too much, but I really don’t
        understand that that’s the law, but the point about it is, is what the— the
        Judge is supposed to give due consideration as to what the jury finds the
        facts to be, and then make a decision based on that and everything else in
        the case and made a determination.

               Based on the jury verdict, based on the proof I heard, it’s the Court’s
        opinion that the woman is entitled to some judgment.



        To this court it appears that these remarks of the trial judge noted above show that

he was being deferential to the jury’s deliberation and their resulting verdict.     In Miller

v. Doe, 873 S.W.2d 346 (Tenn. App. 1993), this court had before it a case strikingly

similar to the case here under consideration.       The conclusion we made in Miller is

applicable here:



        There is nothing in this record to indicate that the trial court approved the
        verdict for the reason that he had independently weighed the evidence, had
        passed on the issues presented to the jury, and reached the same verdict as
        the jury did.



Id. at 349.



        Reconciling apparently contradicting testimony and evaluating the witnesses’

credibility in the first instance are the jury’s responsibilities. See Grissom v. Metropolitan

Gov’t of Nashville, 817 S.W.2d 679, 683 (Tenn. App. 1991).          The trial court must also

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perform this task when a motion for a new trial requires them to review the evidence as

the ?thirteenth juror.” Davis v. Mitchell, 178 S.W.2d 889, 898 (Tenn. App. 1944). It is

apparent to this court from all the remarks made by the trial court, particularly the two

comments quoted again for emphasis, that the trial court did not fully understand nor did

he carry out his duty as the thirteenth juror to independently review the evidence.



            The trial judge’s role as the thirteenth juror is a ?safeguard . . . against the

miscarriage of justice by the jury.” State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995).

Based upon the seriousness of the trial court’s failure to properly exercise that duty, our

supreme court in Moats reaffirmed the rule that a new trial must be granted upon such

circumstances rather than remanding the case and giving the trial court the opportunity

to perform its duty as a thirteenth juror. Id. at 435-36. This case must be remanded for

a new trial.      To avoid the recurrence of a retrial under such circumstances, we strongly

suggest where a trial judge overrules a motion for a new trial that he simply state that he

has reviewed the evidence relevant to the issue and approves the verdict. Anything more

unnecessarily runs the risk of an unwanted new trial.



       We find unpersuasive plaintiff’s contention that because defendants did not enter a

motion for a directed verdict at the close of all the proof, this court cannot consider

defendants’ motion for a new trial.       Plaintiff’s reliance upon    Grissom v. Metropolitan

Gov’t of Nashville, 817 S.W.2d 679 (Tenn. App. 1991) and Saffles v. Harvey Motor Co.,

780 S.W.2d 727, 728 (Tenn. App. 1989) is misplaced.            In Grissom, the court reaffirmed

the rule that only parties who have moved for a directed verdict at the close of all the

proof may seek a motion for a judgment notwithstanding the verdict. 817 S.W.2d at 683;

see T.R.C.P. 50.02.



       In Saffles, this court decided the case on the basis of T.R.A.P. 3(e), which reads in

pertinent part:



       [I]n all cases tried by a jury, no issue presented for review shall be

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          predicated upon error in the admission or exclusion of evidence, jury
          instructions granted or refused, misconduct of jurors, parties or counsel, or
          other action committed or occurring during the trial of the case, or other
          ground upon which a new trial is sought, unless the same was specifically
          stated in a motion for a new trial; otherwise such issues will be treated as
          waived.



Defendant argued in support for his motion for a new trial that “the judgment of the Court

is contrary to the law.”      In order to give defendant the benefit of the doubt this court

interpreted defendant’s    issue to mean that there was no evidence to support the verdict.

Because defendant had not made a motion for a directed verdict at trial, based upon this

interpretation the trial court had never been given the opportunity to consider the issue.

Under the language of T.R.A.P. 3(e), this court felt that it could not consider this issue on

appeal.



          In the case under consideration, defendant contended in support of his new trial

motion that there was no material evidence to support the verdict and called upon the trial

judge to weigh the evidence.       This is a different ground as dealt with in Saffles, and

furthermore the alleged error was called to the attention of the trial court.    This issue is

without merit.




          Accordingly, the judgment of the trial court is reversed and the case is remanded

to the Circuit Court of Madison County for a new trial. Costs on this appeal are taxed to

plaintiff, for which execution may issue if necessary.




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                                    TOMLIN, Sr. J.




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_________________________________________
                                    CRAWFORD, J.   (CONCURS)




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                                    FARMER, J.     (CONCURS)




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